Another decade of indefinite detention; Why Extra-Territorial Refugee Processes require much stricter international regulation

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Source: The Conversation

Disclaimer: This blog post solely reflects the opinion of the authors and should not be taken to represent the general views of IPPR’s management team or those of fellow authors.

As Oceania became the first continent to bring in the roaring 20s, the celebrations made it easy to miss an alternative New Year’s Message; one authored by an asylum seeker facing his seventh year of detention in Papua New Guinea (PNG) on the orders of the Australian government. Indefinite offshore processing has been a cornerstone of their border policy since 2001, yet Shaminda Kanapahti reminded us that this decade has only deteriorated the sense of urgency and care which governments have shown for those they hold captive.

Under the terms of their agreement, inhabitants of the regional processing centres (RPGs) in Manus (now closed but former inhabitants are barred from migrating) and Nauru are processed under the immigration laws of the islands’ authorities, but Australia are responsible for upholding living standards. These nuanced roles blur the lines of responsibility to the inevitable detriment of those in detention. 

For example, Australia’s Human Rights Commissions are barred from accessing the RPCs as it is extra-territorial; even the National Preventative Mechanism- an independent body designed to uphold the Convention against Torture (OPCAT) in areas of restricted liberty- must negotiate access with the islands (Gleeson, 2019, p.161). The Aussie authorities could cry foul, but they continue to interfere with PNG’s immigration policy by protesting their resettlement arrangements with New Zealand; a country which allows freedom of movement to and from Australia. 

It is an unaccountable injustice that mistakes between representatives are most impacting the unrepresented. These ‘parallel and overlapping obligations’ (Gleeson, 2019, p.156) leave the affected in permanent limbo, causing a mental health crisis on the islands as cuts to counselling correlate with annual suicides among the small refugee population. The physical health of refugees is also disproportionately ignored with consequences; it took until the last year of the decade for Australian legislators to grant refugees transfer to the mainland if a minimum of two doctors and a Minister recommends medical treatment. Mental and physical suffering has also been enflamed by boiled-over resentment between locals and refugees as the temporary nature of the latter’s presence deteriorated and natives feel deceived.

It is not only the conditions, resembling persecution, that violate the 1951 Refugees Convention, but the disparity of resettlement prospects between onshore and offshore claims. Asylum seekers in the RPGs, solely due to their means of travel, are barred from an independent merits or judicial review of an immigration officer’s decision, nor are they granted legal assistance. This presents a direct violation of Article 31, which prohibits ‘penalties’ on those granted refugee status. Australia, PNG and Nauru are all defying their own ratified Convention.

It must be noted that maritime law is also insufficient in upholding refugee rights. The surge of Haitian boat arrivals to the US in the 80s and 90s resulted in a Supreme Court ruling that deemed the 1951 Refugee Convention inapplicable outside US territory (Hamlin, 2014, p.41). The non-refoulement principle could be violated by national interpretation without as much as a screening of those on board. More recent use of this legal loophole has been committed by EU coastguards, who hold boats back long enough for Libyan authorities to pull them back, on the premise that it is now a ‘safe’ country.

Although delegation of responsibility seems to be the primary reason for offshore processing, there can the marginal benefit of preventing those fleeing persecution from undertaking a perilous journey through conflict areas and seas. The EU has worked on the idea of ‘transit processing centres’ in North Africa for over a decade, but this will not solve the crisis for the sole reason that the EU have adopted an immigration policy increasingly focussed on deterrence, meaning the primary aim of these centres would be to have better control over asylum numbers in order to please its Eurosceptic members.

The rise of nationalists across the West has put the onus on prioritising the needs of one’s country above all else, resulting in mistrust and scepticism among refugee advocate groups on even the most positive-sounding asylum policies. For example, the EU originally intended to call their offshore processing facilities ‘Welcome and Departure Centres’(Léonard & Kaunert, 2016, p.48). It sounds as painless as a journey through the Schengen Zone, but EU priorities means these centres will at best provide refuge in the form of indefinite detention. 

The only way to trust that offshore processing and detention is for the benefit of refugees is to create an international instrument that regulates third-country processing arrangements. This would allow independent rights bodies such as the NPM (National Preventative Mechanism) immediate access to detention centres within their jurisdiction but outside of their territory. It should not only define the clear roles of each state in the processing institutions but promise to equalise resettlement prospects for refugees offshore with those processed internally. And it could, if implemented correctly, see states adhere to their duties of care and urgency, or maybe even find a home for Shaminda Kanapahti in the 193 UN states that promise to save asylum seekers from persecution. Australia included.

Harry Bradshaw

1st Year Politics & IR Undergraduate

References

Gleeson, M. (2019) Monitoring places of immigration detention in Australia under OPCAT, Australian Journal of Human Rights, 25:1, 150-169

Hamlin, R. (2014). “Illegal Refugees” and the Rise of Restrictive Asylum Politics. In Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. : Oxford University Press

Léonard, S. & Kaunert, C., (2016). The extra-territorial processing of asylum claims. Forced Migration Review, (51), 48–50.

Bradshaw, H. (2020) Policy Proposal: An international instrument to regulate extra-territorial processing of refugees and asylum seekers. UCL. London.

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