(Washington, DC) August 17, 2012 – The Australianparliament’s swift approval of an “offshore processing”law marks a shift in refugee policy that appears arbitrary anddiscriminatory on its face.
The Migration Legislation Amendment(Offshore Processing and Other Measures) Bill 2011, passed by the Senate onAugust 16, 2012, and by the House the previous day, authorizes the transferof asylum seekers who arrive by boat to remote Pacific islands, where theywill remain indefinitely while their refugee claims are processed.
“Australia’s new offshore processing law is a giantstep backward in the treatment of refugees and asylum seekers,” saidBill Frelick, refugee program director, “Australia again seeks toshunt desperate boat people to remote camps, perhaps for years, to punishthem for arriving uninvited by sea.”
The new lawauthorizes the government to transfer irregular migrants arriving by sea tothe Pacific country of Nauru or to Manus Island, a remote malarial islandthat is part of Papua New Guinea. The legislation was rushed through theHouse and Senate just days after a government-appointed panel of expertsissued a 22-point plan for addressing the issue of asylum seekers whoarrive by boat.
While the legislation adopted the panel’srecommendation to reinstate offshore processing, it did not include most ofthe panel’s other recommendations, many of which were geared towardimproving the capacity of Australia, transit countries, and sourcecountries to provide asylum seekers with safe alternatives to irregularboat departures. The House rejected an amendment that would have set aone-year limit on the time asylum seekers could be held at the offshoresites.
The legislation only targets asylum seekers who arriveirregularly by boat. The claims of asylum seekers who arrive by air, evenwith improper documents, will continue to be processed while they remain inAustralia. In most cases they will continue to be given “bridgingvisas,” which allow them to live and work in the community.
“People escaping persecution often have good reasons not to ask theauthorities for permission to travel before they flee,” Frelick said.“To set up a system that discriminates against asylum seekers justbecause they arrive irregularly by boat flies in the face of both basicfairness and fundamental refugee protection principles.”
In July 2011 Australia announced an “arrangement” to transferirregular maritime asylum seekers to Malaysia, but Australia’s HighCourt halted that plan, finding that the arrangement contravened therequirement in section 198A of Australia’s Migration Act to provideaccess to effective procedures for asylum.
The court found thatsince Malaysia had not ratified the 1951 Refugee Convention and had nodomestic refugee law, it was not legally bound to provide access toeffective asylum procedures and protection for refugees, and that theAustralian minister for immigration and citizenship, therefore, could notsend asylum seekers there.
After the High Court ruling, theLabor government was unable to win parliamentary support for legislation toamend the Migration Act to revive the Malaysia deal because the oppositionLiberal Party preferred offshore processing at Nauru and Manus Island. Butthe government found common ground with the opposition this week when bothagreed to enable offshore processing at Nauru and Manus Island by scrappingsection 198A of the Migration Act, circumventing the High Court ruling.
The new law adds that “the designation of a country to be anoffshore processing country need not be determined by reference to theinternational obligations or domestic law of that country.”
Refugee processing was closed at Manus Island in 2004 and at Nauru in2008 after the so-called “Pacific Solution” was criticized forbeing both costly and inhumane. Nauru Island became a party to the RefugeeConvention in 2011, but has not yet demonstrated its capacity to provideeffective asylum procedures and refugee protection, two additional criteriaset forth by the High Court for compliance with section 198A. Papua NewGuinea is also a party to the convention, but it has entered manyreservations to it and also lacks a national refugee determinationprocedure.
Australia’s prime minister, Julia Gillard,said that asylum seekers could be sent to Nauru as early as September wherethey would initially live in tents, and could be expected to wait there aslong as five years for their applications to be processed.
Gillard’s minister for immigration and citizenship, Chris Bowen,should not designate any countries for offshore processing, since thelegislation, on its face, is discriminatory and is almost certain to resultin arbitrary detention.
“Parliament may have skirted theHigh Court’s ruling by cutting human rights protection from theMigration Act, but not the principle on which the ruling rested,”Frelick said. “Should this plan go forward, Australia will beshirking its obligations under the Refugee Convention by punishing asylumseekers based on their arrival and indefinitely detaining them offshorewhere their rights won’t be ensured.”
Human Rights Watch Press release