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The Admission and Exclusion of Asylum Seekers Conference

University of Technology Sydney (UTS)

Human Rights and Offshore Processing

Presentation by John von Doussa QC

President, Human Rights and Equal Opportunity Commission

25 November 2006

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INTRODUCTION

I would like to acknowledge the Gadigal people of the Eora people, the traditional owners of the land on which we meet today, and pay my respects to their elders.

I would also like to take a moment to acknowledge that today is White Ribbon Day. White Ribbon Day marks the United Nations International Day for Elimination of Violence Against Women. In Australia 1.3 million women have experienced violence at the hands of a partner or a former partner at some stage in their life.  White Ribbon Day is an opportunity for men – including White Ribbon Day Ambassadors like myself – to condemn all violence against women.

THE INTRODUCTION OF OFFSHORE PROCESSING

On 29 August 2001 the HMV Tampa sailed into Australian territorial waters carrying with it the politically loaded question of how Australia should respond to asylum seekers who are intercepted in Australian waters. The federal Government’s answer to this question was the Pacific Solution.

Under the Pacific Solution regime unauthorised boat arrivals arriving in an ’excised offshore place’ were defined as ‘offshore entry persons’ and removed to ‘declared countries’ where their asylum claims were processed. For this purpose Off-shore Processing Centres (OPCs) were established in Nauru and Papua New Guinea.

THE PACIFIC SOLUTION IN PRACTICE

The fact the OPCs have not been subject to external scrutiny by either Human Rights and Equal Opportunity Commission (HREOC) or the Commonwealth Ombudsman means there has been insufficient independent analysis of the conditions in OPCs. However, what is known about the centres and the procedure for determining refugee status for offshore entry persons gives cause for great concern.

Asylum seekers processed offshore do not have access to independent merits review by the Refugee Review Tribunal (RRT) or the normal channels for judicial review under Australian law. Some asylum seekers processed offshore under the ‘Pacific Solution’ were reported to have been detained for up to five years.1

Between 2001 and 2005 a total of 1509 asylum seekers have been held on Nauru alone. Of these asylum seekers, Australia accepted 586 for resettlement New Zealand, 360, Sweden 19, Canada 10, Norway 4. 482 asylum seekers were returned to their country of origin.2

The United Nations High Commissioner for Refugees (UNHCR has been highly critical of offshore processing arrangements on Nauru, observing that asylum seekers were kept “in detention like conditions for a long period of time with no timely solutions for the refugees, who suffered considerable mental hardship”.3

THE DESIGNATED UNAUTHORISED ARRIVALS BILL

In 2005 there was a small sea change in Australia’s approach to asylum seekers.  �����鱨վ were taken out of immigration detention centres in Australia. 4 In October 2005, the Australian Government announced that almost all remaining detainees held in OPCs would be transferred to mainland Australia after an independent expert report warned that their mental health was deteriorating. 

Amendments to the Migration Act introduced a 90 day time limit on the determination of a protection visa application for asylum seekers on the mainland. The principle that children should only be detained as a matter of last resort was introduced in Migration Act 1958 (Cth). The Commonwealth Ombudsman was given greater oversight powers including the power to provide reports on people who have been held in detention for more than two years.

In light of these reforms it was disappointing to see the government introduce the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (the Bill)to process all unauthorised boat arrivals offshore. The Bill was basically an extension of the offshore processing arrangements introduced by the ‘Pacific Solution’ laws. Under the Bill, the concept of ‘offshore entry persons’ introduced by the Pacific Solution was replaced by ‘designated unauthorized arrivals’. The effect of Bill was simple: all asylum seekers who arrived in Australia by boat and without authorization would be processed offshore.

THE HUMAN RIGHTS IMPACT OF OFFSHORE PROCESSING

In submissions to the Senate Legal and Constitutional Committee Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, HREOC argued that the proposal to process all unauthorized arrivals offshore was in breach of Australia’s obligations under the Convention on the Rights of the Child and undermined Australia’s obligations under the International Covenant of Civil and Political Rights and the Refugee Convention.5

Although the Bill did not ultimately pass the Senate,the human rights concerns HREOC had about the Bill are equally applicable to the offshore processing arrangements introduced under the Pacific Solution.

Australia’s obligations under the International Covenant of Civil and Political Rights

The potential for asylum seekers to be detained for an excessive period of time in OPCs raises serious concerns that the detention may, by reason of its indeterminacy, breach article 9(1) of the ICCPR which provides that no one shall be subjected to arbitrary arrest or detention.

Australia’s offshore processing arrangements do not address the possibility of excessive or indefinite detention in OPCs. There is no maximum time period for off-shore processing of claims for asylum and no maximum time in which a person who is determined to be a refugee must be resettled in a third country.

Under the Pacific Solution laws court proceedings can not be instituted or continued in relation to the lawfulness of the detention of an offshore entry person. This is anathema to article 9(4) of the ICCPR which provides that anyone who is deprived of his or her liberty should be able to challenge the lawfulness of that detention in court.

In A v Australia6 the United Nations Human Rights Committee (UNHCR) emphasised that every detention decision should be open to periodic review so that the justifying grounds can be assessed. Yet asylum seekers in Offshore Processing Centres will not have an effective remedy for unlawful arbitrary detention or any other breach of their rights under the ICCPR. The lack of an effective remedy for a breach of human rights is itself a breach of article 2 of the ICCPR.

Offshore processing also sits uncomfortably with Australia’s obligations under Article 26 of the ICCPR. Article 26 provides that all persons are equal before the law and entitled without any discrimination to the equal protection of the law.  The problem with offshore processing is it results in a distinction between asylum seekers based on their mode and place of arrival. The end result penalises asylum seekers who are intercepted in an offshore place.

Australia’s obligations under the Convention on the Rights of the Child

HREOC’s 2004 Inquiry into �����鱨վ in Immigration Detention (the Inquiry) expressed concerns about the impact of the Pacific Solution on the rights of the child, observing that:

even after the [offshore] processing has finished and the children have been recognised as refugees, there is no automatic trigger for release from detention. They have no rights to a bridging visa, nor to transfer to an alternative place of detention. The children must therefore wait in detention until a country offers them resettlement.7

Under Article 37 (b) of the Convention on the Rights of the Child the detention of children must only occur as a measure of last resort and for the shortest appropriate period of time. However, the operation of the Pacific Solution contravenes this obligation. In 2004 the Inquiry observed that it was unaware of any instances where children who had been intercepted in an excised offshore place had been presented any option other than detention on Christmas Island, Nauru, or Manus Island in Papua New Guinea. The Inquiry concluded that “therefore there is no evidence of detention being anything other than the first resort”.8

In submissions to the Senate Legal and Constitutional Committee the then Department of Immigration and Multicultural Affairs argued that people transferred to OPCs are not detained under the Migration Act 1958 or any other Australian law.9

The Committee on the Rights of the Child defines a deprivation of liberty as “any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority”.10

Asylum seekers in OPCs are subject to a legal requirement (as part of their visa arrangements in Nauru) that they reside in OPCs. They are confined to OPCs for certain periods everyday and must always return to the OPCs. Asylum seekers in OPCs have no control (in any meaningful sense) over their living accommodation, conditions or the circumstances of their detention. There is no public access to OPCs and residents’ are subject to supervision and monitoring by security guards.

I believe it is arguable that OPCs are in substance, places of detention, and that Australia’s offshore processing arrangements are breach of the principle that children should only be detained as a last resort. What is clear is that offshore processing centres are not a healthy environment for children. It is difficult to see how the decision to process the claims of children seeking asylum offshore, in circumstances which lack the same safeguards  as Australia’s onshore processing arrangements, can ever been in the best interests of the child.

Moreover, offshore processing undermines Australia’s obligations to provide “special protection and assistance to unaccompanied asylum seeker children”11 and make sure that children seeking refuge status are granted appropriate protection and humanitarian assistance in the enjoyment of their CRC rights and also other human rights and humanitarian instruments to which the State is a party.12

Australia’s obligations under the Refugee Convention

The prohibition on the forced return of a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” is one of the most fundamental principles in international refugee law.

The principle of non-refoulement extends beyond the terms of Article 33 the Refugee Convention.  The United Nations Human Rights Committee has held that a state will contravene its obligations under the ICCPR if it removes a person to another country is circumstances where there is a real risk that their rights under the ICCPR will be violated.13

Under a narrow reading of Article 33(1) a country will still be in accordance with its obligations under this article if it sends an asylum seeker to a ‘third country’ which is considered to be safe and he or she will receive ‘effective protection’.14 However, when the procedure for processing asylum seekers offshore lacks basic safeguards like independent merits review offshore processing may increase the risk of refoulement.15

The existing OPC refugee status determination process is not subject to the same review mechanisms as the refugee status determination process on mainland Australia. An asylum seeker processed offshore is limited to requesting an internal review of a negative decision by a Department officer who is more senior than the one who made the primary decision. 

The review mechanisms for independent merits review and judicial review contained in the Australian refugee status determination process provide a vital mechanism for checking that primary decisions about refugee status are correct and reducing the risk of refoulement as a result of a wrong primary assessment.  The 2005-2006 Refuge Review Tribunal annual report states the RRT set aside the primary decision of DIMA in almost one in three cases.16 This is a significant indicator of the importance of an effective review process, including independent merits review and judicial review, to ensure persons who should be accorded refugee status are not wrongfully returned or expelled from Australia.

The devastating impacts of wrong decision-making at a departmental level are illustrated by the wrongful detention of Cornelia Rau and the wrongful removal of Vivian Solon. These cases demonstrate the need for transparency and accountability in the process for determining a person’s refugee status under the Migration Act 1958 (Cth). 17

Article 31 of the Refugee Convention

The United Nations Convention Relating to the Status of Refugees (the Refugee Convention) recognises that where people fear for their life or freedom they may be forced to enter a country of refuge unlawfully. Article 31 expressly prohibits nations from penalising refugees on account of their illegal entry where they are “coming directly from a territory where their life or freedom was threatened”. 18

Professor Guy Goodwin Gill observes it has been held that “any treatment that was less favourable than that accorded to others and was imposed on account of illegal entry was a penalty with Article 31 unless objectively justifiable on administrative grounds”. 19

There are currently significant differences between Australia’s offshore processing arrangements and onshore processing arrangements. There appears to be no objective justification on administrative grounds for differences between offshore and onshore processing arrangements.

Asylum seekers processed offshore do not have access to independent merits review and there are insurmountable difficulties in obtaining legal advice or assistance. There are no maximum statutory time limits for processing claims or on detention in OPCs.

Unlike cases of long-term detention onshore, cases of long-term detention in OPCs are not subject to review by the Commonwealth Ombudsman and DIMA has consistently asserted that HREOC does not have jurisdiction to visit OPCs – an assertion HREOC does not accept. 20

If people are subject to excessively long detention as a result of the particular features of offshore processing arrangements this may constitute a penalty in breach of article 31(1).21

SAFEGUARDS IN THE OFFSHORE PROCESSING

During the public debate about the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 there was vigorous discussion about what safeguards should apply to offshore processing of asylum seekers.  Implicit in this debate was the idea that human rights concerns about offshore processing could be alleviated by stronger safeguards in the offshore processing. But while better safeguards can help alleviate the human rights concerns about offshore processing, they can not cure the problem.

This is because ultimately the problem with processing asylum seekers offshore is Australia’s inability to guarantee safeguards for the fundamental reason that asylum seekers are in the territory of another sovereign state.  This problem was acknowledged by the Prime Minister when he observed that legislating access for the Commonwealth Ombudsman in order to provide independent oversight of offshore processing centres is not possible because it would infringe on the sovereignty of the host country.22

As you know, the Bill was withdrawn after it became clear that did not have the support of the Senate majority. The withdrawal of the Bill was undoubtedly a win for human rights. Yet the legal framework that established the original Pacific Solution is still in place. We still have a situation where people who arrive on excised Australian territory can be taken to Nauru and left there indefinitely.  

The same day the Bill was withdrawn eight Burmese asylum seekers were located on Ashmore reef. Because Ashmore Reef is an “excised offshore place” under the original Pacific Solution laws these asylum seekers claims are now being processed in Nauru.  The human rights concerns that were so vocally expressed during debate about the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 still apply to those people.

It’s worth observing that the Migration Amendment (Designated Unauthorised Arrivals) Bill was withdrawn as a result of what was the political equivalent of a blue moon. We should not have to rely on political anomalies to preserve human rights.  Instead, proposed legislation should be measured against clearly articulated human rights standards.

GAPS IN AUSTRALIA’S HUMAN RIGHTS PROTECTION

Of course, the problem is that while Australia’s Constitution does contain a couple important rights, other rights – like the right not to be arbitrarily detained– are notably absent.  Instead, human rights “have been granted statutory protection in a piecemeal and incomplete fashion”.23 The gaps in existing protections of human rights were illustrated by

This problem was illustrated brought home by the High Court’s decision in Al-Kateb v Goodwin24 where the majority of the High Court held that the Migration Act permitted the indefinite detention of a failed asylum seeker who wanted to leave Australia but could not find another country to accept him.

The decision in Al-Kateb highlighted what former High Court Justice McHugh has described as the “inability of Australian judges to prevent unjust human rights outcomes in the face of federal legislation that is unambiguous in its intent and that falls within a constitutional head of power”.25

Earlier this year the UNHRC found that the detention of an Iranian family  in Curtin Immigration detention centre for over three years was in breach of one of the most fundamental of all human rights obligations – article 9(1) of the ICCPR – the right to be protected from arbitrary imprisonment.26 This was the fifth time since 1997 that the HRC has found that Australia’s immigration detention regime does not comply with this basic standard.27

In submissions to the UNHRC, the Australian Government challenged the UNHRC’s jurisdiction to hear the complaint arguing that the family had not exhausted domestic avenues.  However, the UNHRC found that, because Australia’s High Court had held the policy of mandatory detention was constitutional, this remedy was not effective.

In concluding that the family’s detention was in breach article 9(1) the HRC found that “whatever justification there may have been for an initial detention” Australia had failed to demonstrate:

• “that their that their detention was justified for such an extended period” or
• that compliance with Australia’s immigration policies could not have been achieved by less intrusive measures.

Aspects of Australia’s migration laws raise serious questions about how seriously the Parliament takes human rights compliance in the law and policy making process.

Making Rights Matter in the Parliamentary Process

While no one can question the value of parliamentary committees scrutinising new Bills, this process is subject to fundamental limitations. The parliamentary committee process occurs after the legislation has been drafted, the policy objectives formulated and, more often than not, after politicians have publicly committed to the implementation of the Bill..  There is no “human rights yardstick” which measures whether a law disproportionately infringes upon human rights.   Perhaps most importantly, the government is under no obligation to implement – or even respond to – a committee’s recommendations.

In contrast, under the Charter of Human Rights and Responsibilities Act 2006 (Vic)the Victorian Government must pay attention to the human rights impact of new laws and policies:

• submissions to Cabinet about new laws or policies must be accompanied by a Human Rights Impact Statement;
• new Bills must be accompanied by a human rights compatibility statement;
• a parliamentary scrutiny committee must independently assess the human rights compatibility of new Bills; and
• parliament must justify its actions if it decides to pass laws which are inconsistent with human rights principles.

These provisions represent an important step forward for human rights because they integrate human rights principles into the daily decision making of the legislature and the executive.

HUMAN RIGHTS COMPLIANCE

Explicit statutory requirements for the legislature and the executive to consider the human rights impacts of new laws and policies would lead to better human rights outcomes and foster a human rights culture. 

The High Court’s decisions in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH28 (QAAH) and  NBGM v Minister for Immigration and Multicultural Affairs29 (NBGM)confirm the uncertainty facing refugees holding temporary protection visas and highlight the need for Australia to change its policy towards refugees living in Australia. In QAAH, an Afghani national, was originally granted a temporary protection visa (TPV) on the grounds that he had a well-founded fear of persecution by the Taliban. After the fall of the Taliban government, the Minister’s delegate refused QAAH’s application for a permanent protection visa. This decision was upheld by the Refugee Review Tribunal, before being set aside by the Full Court of the Federal Court. The Federal Court held that the Minister (or the Minister’s delegate or the Tribunal) must establish that the changes in the applicant’s country of origin were “substantial, effective and durable” and “incompatible with a real chance of future Taliban persecution” before refusing to grant a permanent protection visa.

On appeal, the majority of the High Court (Gummow ACJ, Callinan, Heydon and Crennan JJ; Kirby J dissenting) held there is no burden of proof on the Minister to establish that the basis for a well founded fear no longer exists when a TPV holder seeks further protection.  Specifically, the Act does not require that the Minister establish whether changes in the applicant’s country were “substantial effective and durable”, before refusing to grant a further protection visa. In NBGM the majority of the High Court applied the decision in QAAH.

In a statement after the High Court’s judgment in QAAH and NGBM the UNHCR said that while the judgments asserted the primacy of domestic legislation, they failed to “reflect the spirit of the legal framework for refugee protection envisaged in the 1951 Convention relating to the Status of Refugees”.30

Australia’s international reputation is judged in significant measure on whether it meets the international human rights obligations. Good human rights outcomes depend on more than technical compliance with specific terms of human rights conventions and much more than hiding behind domestic legislation that does not reflect international obligations. Good human rights outcomes depend on the willingness of government to act in a way that is consistent with the overall scheme and objectives of those conventions. 

One of the fundamental problems of offshore processing is that it undermines a global response to the refugee protection. The Pacific Solution not only creates an inequitable distinction between asylum seekers who land on the Australian mainland and asylum seekers who land in an excised offshore place, it undermines the very institution of asylum.

Signatories to the Refugee Convention are required to interpret the Convention in good faith.31 The Preamble to the Refugee Convention focuses on the notion of international responsibility and ‘burden sharing’, emphasising that international cooperation between states and with the UNHCR is vital to deal with the problem of refugees and to prevent the resolution of the refugee problem being borne unduly by particular states.32

Outsourcing refugees to safe third countries has a corrosive effect on the principle of burden sharing and international cooperation.33 Moreover, while offshore processing does not, of itself, displace Australia’s non-refoulement obligation, it does make Australia’s ability to meet these obligations dependent on the behaviour of other sovereign states. 

In the final analysis the Pacific Solution diminishes Australia’s international reputation and sets a precedent that, if it were widely adopted by other states, would lead to the collapse international system of refugee protection.  

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