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time To invest in protection

- Tamara Domicelj, July 2013

It’s time for Australia to invest in protection rather than policies towards asylum seekers that inflict serious harm

As an agency working to strengthen the protection of refugees and other conflict-affected people, Act for Peace is gravely concerned by the recently announced ‘Regional Resettlement Arrangement’ (RRA) between Australia and PNG, and elements of the ‘national’ and ‘international’ measures also announced by the Australian Government at that time.

We are concerned about the legality of the arrangement and about the devastating impact that it will almost invariably have upon the immediate and long-term safety and wellbeing of highly vulnerable people. We are also concerned at the negative precedent it sets among regional states and the likely distortion of Australia’s aid program that will arise in its implementation.

While the Australian Attorney General has emphasised that the arrangements under the RRA will be consistent with Australia’s international legal responsibilities, it is unclear from the material released to date how this assurance can be made. While the Refugee Convention does not expressly prohibit the transfer of asylum seekers to third countries for the processing of their claims nor of refugees to third countries for resettlement, such practices are rare and not in keeping with international expectations nor the preferred approach of UNHCR (the UN Refugee Agency).  Indeed, such transfer arrangements are generally only lawful and appropriate where the protection of people transferred can be guaranteed in both law and practice, and where the arrangements contribute to the enhancement of international cooperation and responsibility-sharing for the protection of refugees.

While PNG is a signatory to the Refugee Convention, it has posed seven significant reservations which amount to a refusal to guarantee refugees access to education, livelihoods, housing, freedom of movement and a range of other rights. PNG has stated that it will withdraw these reservations with respect to those transferred by Australia under this arrangement. However, the withdrawal of reservations for only certain categories of refugees does not appear to be permissible.

And even if the reservations are withdrawn, it is far from clear that the rights owed to refugees under refugee and human rights law will be upheld in fact. Resettling single women, unaccompanied minors and other extremely vulnerable refugees in PNG will expose them to serious risks. Violent crime is prevalent in PNG, with the incidence of sexual and gender based violence amongst the highest in the world and one in two women having been raped. Homosexuality is punishable by up to 14 years imprisonment (and asylum seekers who are homosexual will not be exempt from prosecution). Tropical diseases are widespread and medical infrastructure rudimentary. PNG is ranked 168th in the world in terms of life expectancy. Housing is scarce and expensive and there is little unallocated land. Building effective settlement services for refugees in this context will be an exceptional challenge that will take many years. And if they are in fact delivered, failure to extend equivalent services to impoverished local communities and existing West Papuan refugees, will lead to serious frictions and likely foment unrest.

Numerous concerns also arise with respect to the processing phase. Deeply troubling allegations have recently been made about the treatment of asylum seekers detained on Manus Island. And the UNHCR has recently expressed grave concerns about the continuation of arbitrary detention on Manus Island, along with a range of other serious departures from internationally accepted standards. It is extremely likely that asylum seekers will continue to be subject to arbitrary detention under the new arrangement – in clear contravention of international law. The new arrangement provides that those found not to be refugees will be detained (indefinitely) if unable to be returned to their country of origin or sent to another country in which they can legally reside. As PNG has no process for determining if asylum seekers are stateless (without a citizenship) and providing residency for those that are, it seems that stateless people (at least) will be detained indefinitely.

The arrangement also makes clear that all asylum seekers who arrive to Australia by boat without authorisation will be transferred to PNG for the processing of their claims when appropriate accommodation becomes available. For highly vulnerable people such as unaccompanied minors, survivors of torture and trauma, pregnant women, and children under 7 who cannot be inoculated against tropical diseases, this will clearly take a very long time (if feasible at all). It has been confirmed that their claims for protection will not be processed while they await transfer to PNG. If they are detained in Australia in the meantime, this will almost certainly amount to unnecessarily prolonged periods of detention in breach of international law.

Further to the arrangement with PNG, the Australian Government announced national and international measures on 19 July. At the national level, there will be a review of Australia’s refugee status determination system. While tightening of safeguards and procedures to ensure that our system is robust is worthy, the recent assertions by the Australian Foreign Minister that asylum seekers arriving by boat are economic migrants, not refugees, suggests that the review may be weighted towards reducing the refugee recognition rate. As has been widely noted, there was no evidence for the Foreign Minister’s assertion given that the government ceased processing asylum claims after the release of the ‘Houston report’ in August 2012.

At the international level, the Prime Minister  announced that Australia will convene a conference of “relevant transit and destination countries within the framework of the Refugee Convention” to deliberate on how to improve the adequacy of processing systems and centres around the world, and how to better manage resettlement. These are commendable goals, however the outcomes may well be undermined by two key factors: if countries that are not signatories to the Refugee Convention are not deemed “relevant” then there will be little representation from key Asian countries at the event; and, despite its pronouncements to the contrary, the Australian Government appears to be stepping away from its obligations under refugee and human rights law – a poor precedent for a conference that might otherwise have sought to strengthen operationalization of both the spirit and letter of international law in order to enhance protection worldwide.

The Regional Resettlement Arrangement has been framed by the Australian Government as a “very hard-line decision” designed to combat the “scourge of people smuggling…within the legal framework of the Refugee Convention” and avert the further tragic loss of lives at sea. Yet we heard nothing about the measures that Australia might take to strengthen rescue at sea capabilities or to strengthen refugees’ access to safety and the prospect of a lasting solution to their plight from elsewhere within our region, without feeling driven to embark on hazardous sea voyages.  

It is time for Australia to start investing in protection with the same determination and drive as it has demonstrated in seeking to “smash the people smugglers’ business model”. There is an enormous amount at stake.

See what others are saying:

Tamara-Domicelj is Regional Refugee Protection Adviser with Act for Peace

More ways to take action

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