Asylum Seekers in Australia and the Government’s Continued “Crimes Against Humanity”

Almost three years after Papua New Guinea’s Supreme Court ruled that the detention of asylum seekers on Manus Island was unlawful as it “breached the right to personal liberty” in the Papua New Guinean constitution, asylum seekers are still being treated as prisoners.^[1] The Universal Declaration for Human Rights entitles asylum seekers to protection from persecution in other countries, such as Australia.^[2] The Australian government has violated international human rights law and its obligations under the Universal Declaration for Human Rights and the Refugee Convention by refusing to provide these protections and instead holding asylum seekers in Papua New Guinea and Nauru.^[3] Although the Regional Processing Centre on Manus Island was closed under court order, asylum seekers whose freedom remain controlled by the Australian government are continuing to suffer in other offshore processing centers and temporary transit centers in Papua New Guinea and Nauru. The men are not afforded the protections they deserve and continue to be stripped of their rights to personal liberty, freedom of movement, and adequate healthcare.

Although the Papua New Guinean Supreme Court declared the detention of men at the Regional Processing Centre on Manus Island unlawful in April 2016, the center did not close until October 2017. In the months leading up to the center’s closure, facilities and services were removed and medications, food, and water were restricted in order to force the men to leave the compound.^[4] Many of the men refused to leave the center because they feared for their safety and by the end of the October, all water and power supplies were cut off. By late November, the remaining men were forcibly removed from the compound by Papua New Guinea police, paramilitary, and immigration officials and taken to different transit centers on Manus Island.^[5] According to a Refugee Council of Australia report, titled “Until when: The forgotten men of Manus Island,” after being forcibly removed from the Regional Processing Centre, the men were sent to East Lorengau Transit Centre (ELTC), West Lorengau, and Hillside Haus, which are all on Manus Island.^[6] At the time of transfer, only the ELTC was complete but had 298 beds to accommodate 440 people.^[7] The other two centers did not meet basic standards, and all three continued to “feel and operate like detention.”^[8] Although these men are technically not in detention, they are deprived of their rights in the transit centers. The Refugee Council of Australia found that

“the men are still living in a highly controlled environment. They must live at designated facilities as determined by the PNG Immigration Minister and seek permission to live elsewhere. They cannot travel anywhere else in PNG without permission from officials. In addition, those requiring medical treatment off the island must go through an ‘ambiguous and deficient’ approvals process which involves decisions being made by Australian government officials on whether or not they can seek treatment in Port Moresby or Australia.”^[9]

Most of the men are denied identity or travel documents and those who do have access to such documents report that they are often “disregarded by the authorities,” even though travel documents and identity papers are required to be issued to refugees by contracting states, including Australia, in the Refugee Convention.^[10]

Both Papua New Guinea and Australia have ratified Article 12 of the International Covenant on Civil and Political Rights, which protects the rights to liberty, security of person, and freedom of movement, rights which are also guaranteed in Papua New Guinea’s Bill of Rights.^[11] Under international human rights law, unnecessary indefinite restrictions on liberty are not justifiable.^[12] Most of the asylum seekers being processed in off-shore centers have been held for almost six years, with no clear guidance from the Australian government as to an end to their confinement.^[13] Furthermore, in October 2018, Doctors Without Borders, for reasons which are unclear, was asked to end its activities after having provided free psychological and psychiatric services in Nauru since November 2017 to the asylum seekers and refugees.^[14] The group called the mental health situation of the refugees on the island “beyond desperate” and called for “the immediate evacuation of all asylum-seekers and refuges from the island and for an end to the Australian offshore detention policy.^[15] Doctors Without Borders argues that “although many of the refugees on Nauru have experienced trauma in their countries of origin or during their refugee journey, it is the Australian government’s policy of indefinite offshore detention that has destroyed their resilience and shattered all hope that they will one day lead safe, meaningful lives.”^[16]

In response to the situation, human rights lawyers from the National Justice Project filed class action lawsuits in the high court of Australia in December 2018 representing the remaining refugees and asylum seekers on Manus Island and Nauru.^[17] The class actions allege that the Australian government subjected the asylum seekers to “torture, crimes against humanity, and the intentional infliction of harm.”^[18] Both suits are seeking injunctions to stop the government’s breach of its duty of care to asylum seekers.^[19] The attorneys representing the asylum seekers are arguing that they have been subject to “arbitrary imprisonment and other severe deprivation of physical liberty; denial of proper medical assessment and treatment; inadequate security and protection; inadequate food and water, inadequate accommodation; and an unhygienic environment.”^[20] There are over a thousand men still being held on Manus and Nauru, most of whom have been found to have legitimate claims for asylum.^[21] The standard of living in these transit centers is so bad that, as evidenced in documents submitted to the court, “detainees describe conditions on the islands that include ‘high levels of self-harm, including self-cutting, lip sewing, swallowing rocks, burning with cigarettes’ and ‘refraining from eating and drinking.’”^[22]

The asylum seekers remain in highly restricted environments, deprived of their personal liberty and freedom of movement, a right which is enshrined in the Refugee Convention.^[23] Additionally, the centers in which they are confined do not offer them adequate resources such as access to healthcare. The situation has led to an “acute medical crisis” where poor health and suicidal ideations are common place.^[24] The islands do not offer proper access to medical treatment where cases requiring urgent medical attention should be transferred to Australia. The current system allows for the minister of immigration to have the “final decision on whether a medical transfer will take place,” which “has meant that people needing urgent medical assistance have severely deteriorated or even died as a result of delays.”^[25] In response to this crisis, the Australian Parliament passed in February 2019 legislation to give asylum seekers on Nauru and Manus the right to medical treatment and transportation to Australia for care.^[26] The bill, limited to the nearly 1,200 asylum seekers already on the islands, is meant to give doctors more power to recommend transfers of sick asylum seekers. Unfortunately, since the bill’s passage, coined the “Medivac” bill, Prime Minister Scott Morrison has said that his government will reopen a detention center on another island and send asylum seekers there for medical treatment.^[27]

In spite of the international human rights protections, which has Australia agreed to uphold, the Australian government continues to deny rights and liberties to the asylum seekers in its care. Even almost three years after the Supreme Court of Papua New Guinea found that the detention of asylum seekers in its Regional Processing Centre violated international protections and the Papua New Guinean constitution, the Australian government has done little more than circumvent the decision and its duty of care to those seeking protection within its borders. The “ideal outcome” of the class action suits against the Australian government, according to one of the attorneys for the National Justice Project, would require the government to move the migrants “to a place where they could live in safety.”^[28] As the lawsuits progress, there is renewed hope that the Medivac bill may offer much needed protection and care to the asylum seekers detained on Manus and Nauru, although it is unclear how the Prime Minister’s vow to keep the asylum seekers from reaching Australian shores will affect the bill’s implementation.

1. Eric Tlozek and Stephanie Anderson, “PNG’s Supreme Court Rules detention on Manus Island is illegal,” in The Guardian, available at https://www.theguardian.com/australia-news/2016/apr/26/papua-new-guinea-court-rules-detention-asylum-seekers-manus-unconstitutional (April 2016); Helen Davidson, “Australia subjected refugees to crimes against humanity, class action alleges,” in The Guardian, available at https://www.theguardian.com/australia-news/2018/dec/10/australia-subjected-refugees-to-crimes-against-humanity-class-actions-allege (Dec. 2018). ↑
2. Universal Declaration for Human Rights, Article 14, Section (b), 1948. ↑
3. Refugee Council of Australia, “Until when: The forgotten men of Manus Island,” available at https://www.refugeecouncil.org.au/manus-island-report/2/ (Nov. 2018). ↑
4. Id, at “The closure.” ↑
5. Id. ↑
6. Id, at “Where are they now?” ↑
7. Id. ↑
8. Id, at “Introduction.” ↑
9. Id, at “Where are they now?” ↑
10. Id; Convention Relation to the Status of Refugees, Article 26-27, 1951. ↑
11. Id. ↑
12. Convention Relating to the Status of Refugees, Article 31, Section (2), 1951. ↑
13. Id. ↑
14. “MSF Calls for the Immediate Evacuation of All Asylum Seekers and Refugees from Nauru,” Medicins Sans Frontieres Australia, available at https://www.msf.org.au/article/statements-opinion/msf-calls-immediate-evacuation-all-asylum-seekers-and-refugees-nauru (Oct. 2018). ↑
15. Id. ↑
16. Id. ↑
17. Davidson, “Australia subjected refugees to crimes against humanity, class action alleges.” ↑
18. Id. ↑
19. Id. ↑
20. Shannon Van Sant, “Lawsuits Say Australia Subjects Asylum-Seekers to Torture and Crimes Against Humanity,” in NPR, available at https://www.npr.org/2018/12/10/675356306/lawsuits-say-australia-subjects-asylum-seekers-to-torture-and-crimes-against-hum (Dec. 2018). ↑
21. Davidson, “Australia subjected refugees to crimes against humanity, class action alleges.” ↑
22. Livia Albeck-Ripka, “Australia’s Migrant Camps Are ‘Crime Against Humanity,’ Lawsuit Claims,” in New York Times, available at https://www.nytimes.com/2018/12/10/world/australia/asylum-seekers-lawsuit-migrant-camps-.html?save=nyt-gateway-stories (Dec. 2018). ↑
23. Convention Relating to the Status of Refugees, Article 27, 1951. ↑
24. Tamra Sami, “Australia Confronts Its ‘Pacific Solution,’” in US News, available at https://www.usnews.com/news/best-countries/articles/2019-03-06/australias-asylum-seeking-policies-take-center-stage-in-upcoming-national-election (March 2019). ↑
25. Id. ↑
26. Id. ↑
27. Id. ↑
28. Albeck-Ripka, “Australia’s Migrant Camps Are ‘Crime Against Humanity,’ Lawsuit Claims.” ↑