1 . . . 2. . . 3 . . . 4 . . . When will Australia Stop the War (on Asylum Seekers)?

By Nichelle Christopherson

Despite criticism from dozens of countries regarding its lack of accountability and transparency in processing asylum seekers, Australia’s government continues to praise itself for being one of the “most generous humanitarian settlers” of refugees in the world.[1] Indeed, in 2020, and for the fifth year in a row, it ranked third in the world for the number refugees accepted and resettled in the country.[2] However, notwithstanding its cruel and inhumane treatment of refugees, the statistics purported to support this conclusion are largely misleading as they only account for those refugees the country agrees to settle through its offshore resettlement program. Those that seek asylum through the onshore program, however, are summarily denied access to asylum protections and further subject to the inhumane practice of offshore processing in different countries.

Australia’s asylum system can be separated into two different categories comprising of an offshore resettlement program and an onshore protection program, the latter of which remains the subject of heated controversy. Within the resettlement program there exists three subcategories: Refugee, Special Humanitarian, and Community Support Program. In particular, the refugee program includes individuals who are determined by UNHCR to constitute a refugee and are subsequently referred to and accepted by Australia for resettlement. At present, Australia’s ceiling governing the number of refugees and individuals under the special humanitarian and community support programs permitted entry each year is capped at 13,750, a figure that is down 5,000 spots from the figures predating the Covid-19 pandemic.[3]

Despite having faced repeated criticism over the years for “cherry picking” refugees by way of its offshore resettlement program, which grants the government discretion over who to accept, such a practice does not blatantly violate any principles of international law, nor is it unique to Australia. Rather, the tangible and unique harm Australia is responsible for is largely traced to its onshore component, or more specifically, who it excludes from receiving onshore protection. Australia’s onshore program is available to individuals seeking asylum that have arrived in the country on a valid visa. Those individuals may be eligible to receive a permanent protection visa, which allows them to stay permanently in the country. Sounds great, right? Wrong.

Among those excluded from obtaining a permanent protection visa include asylum seekers who arrive by boat or without a valid visa, which may also consist of persons who arrive with a valid visa but whose visa is revoked at entry because it is determined that the visa was obtained for purposes of obtaining protection. Although international law carves out an exception for asylum seekers to seek protection in a country despite not having authorization to enter said country, Australia continues to assume the firm stance that anyone who enters the country without a valid visa will not be afforded the ability to apply for asylum in the country. Contrary to international law, the government classifies such method of entry as “illegal maritime migration”[4] and the asylum seekers themselves as “unlawful noncitizens.”[5] To avoid blatantly violating the 1951 Refugee Convention’s Article 33 principle of nonrefoulement, which stipulates that a country may not return a person to his or her home country if the person has a reasonable fear of being persecuted there,[6] in 2001, Australia devised a cunning plan to utilize offshore processing in other nations to avoid accepting onshore asylum seekers.[7] In theory, this tactic allows them to evade a violation of international law because the Convention does not explicitly state that asylum seekers have a right to receive protection in the country they apply in, although this is implicit. Australia has nevertheless capitalized on this omission and over the years utilized both Papua New Guinea (“PNG”) and the island nation of Nauru for purposes of transferring all onshore asylum seekers there for processing, detention, and in some cases, resettlement.[8]

To make matters worse, since 2012, all asylum seekers who arrive in Australia by boat are subject to mandatory and indefinite detention, which is not judicially reviewable.[9] Australia justifies its hardline approach to onshore processing by emphasizing that its purpose is to prevent deaths at sea, as well as curtail human smuggling.[10] However, this justification is illusory in light of Australia’s aforementioned detention policies and its shocking rapport for abuse of men, women, and children in detention centers.[11] As a result of such violations, Australia was slammed with a $70 million AUD class action lawsuit on behalf of the detained people held in the Manus Island Detention Center in PNG, the result of which also led PNG’s Supreme Court to rule that its operation of the PNG Detention Center on Manus Island, which was used for housing asylum seekers and other noncitizens who entered or attempted to enter Australia unlawfully, was illegal on the basis that it did not respect the “rights and dignity of mankind,” citing violations of the country’s constitution.[12] In October 2017, however, Australia’s High Court upheld the PNG regional resettlement agreement notwithstanding PNG’s Supreme Court ruling, emphasizing that the Australian government is not bound to conformity with the laws of another country.[13] Despite the hostile ruling, the PNG government reiterated its plans to officially close the doors on the Manus Island Detention Center by the end of December 2021, but there remains one detention center still open, and it might not be so easy to take down. In September 2021, both Australia and Nauru recommitted to maintain the detention center on the island nation for purposes of detaining Australia’s onshore asylum seekers.[14] For now, what can be done to stop Australia’s unlawful practices remains an unanswered question for both refugee advocates and the international community.

[1] David Campbell, Alex Hawke says Australia's resettlement of refugees ranks third-highest globally. Is that correct?, ABC News (Sept. 13, 2021), https://www.abc.net.au/news/2021-09-14/fact-check-does-australia-s-resettlement-of-refugees-rank-third/100436334.

[2] Id.; How generous is Australia’s Refugee Program Compared to Other Countries?, Refugee Council Austl. (May 9, 2020), https://www.refugeecouncil.org.au/2018-global-trends/.

[3] Refugee Council of Australia, 2020-21 Federal Budget: What it means for refugees and people seeking humanitarian protection, Reliefweb (Oct. 7, 2020), https://reliefweb.int/report/australia/2020-21-federal-budget-what-it-means-refugees-and-people-seeking-humanitarian.

[4] Gov’t of Austl., Operation Sovereign Borders (last visited Jan. 16, 2022), https://osb.homeaffairs.gov.au/in-australia#:~:text=Australia's%20borders%20are%20closed%20to%20illegal%20maritime%20migration&text=No%2Done%20who%20travels%20to,to%20Australia%20the%20wrong%20way.

[5] Janet Phillips, Asylum Seekers and Refugees: What are the Facts?, Parliament Austl. (Mar. 2, 2015), https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/rp/rp1415/asylumfacts.

[6] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 U.N.T.S. 137, art. 33 (entered into force 22 April 1954) [hereinafter Refugee Convention].

[7] Australia’s Offshore Processing Regime, Refugee Council Austl. (last visited Jan. 16,2022), https://apo.org.au/sites/default/files/resource-files/2016-06/apo-nid65111.pdf

[8] Media Release, Chris Bowen MP Minister for Immigration and Citizenship, No Advantage Onshore for Boat Arrivals (Nov. 21, 2012), UNCLASSIFIED (aph.gov.au)

[9] Community Based Processing: Policy Statement, ASCR (2018), https://asrc.org.au/policies/community-based-processing/#_ftnref7.

[10] Australia Ends Controversial Asylum Detention Deal with Papua New Guinea, BBC News (Oct. 6, 2021), https://www.bbc.com/news/world-australia-58812578#:~:text=Many%20have%20languished%20there%20for,they%20prevent%20deaths%20at%20sea.

[11] Ben Doherty, Australia to End Offshore Processing in Papua New Guinea, Guardian (Oct. 6, 2021), https://www.theguardian.com/australia-news/2021/oct/06/australia-to-end-offshore-processing-in-papua-new-guinea.

[12] Namah v. Pato [No. 84] (2016) HCA 31 (Austl.), https://www.scribd.com/doc/310461159/PNG-Supreme-Court-Decision-on-Manus-Island.

[13] Id.

[14] Australia and Nauru Renew Commitment to Detention Centre, RNZ (Sept. 28, 2021), https://www.rnz.co.nz/international/pacific-news/452490/australia-and-nauru-renew-commitment-to-detention-centre#:~:text=Australia%20and%20Nauru%20have%20re,and%20refugees%20on%20the%20island.&text=Last%20week%20both%20governments%20signed,regional%20processing%20capability%20in%20Nauru.%22.