Offshore processing: lessons from the ‘Pacific Solution’

Parliament house flag post
Golden scales of justice, gavel and books

Offshore processing: lessons from the ‘Pacific Solution’

Posted 15/04/2014 by Elibritt Karlsen

On 9 May 2014, the High Court of Australia is scheduled to begin considering the legality of the former Government’s decision to classify Papua New Guinea (PNG) as a regional processing country. Amongst other things, the plaintiff argues that the former Labor Government failed to take into account advice from the UN High Commissioner for Refugees (UNHCR) which stated there were no laws and procedures in place in PNG for the determination of refugee status or immigration officers with the experience, skill or expertise to undertake refugee status determination (RSD).

When the Government processed asylum seekers under the so-called ‘Pacific Solution’ (2001—2008) it modelled its processes on UNHCR procedures and standards. However, it was not until 2006, when the administrative guidelines used in the assessment process first became publicly available that UNHCR subsequently seriously questioned whether it was appropriate for Australia to do so. Asylum seekers processed on Nauru and PNG were not given access to government funded legal assistance or representation, or to independent merits review and there was no capacity for judicial review of negative decisions. Rather, negative decisions were reviewed internally by a more senior Departmental officer.

There were concerns at the time about the quality and consistency of the decisions being made. For instance, at the end of 2003 a group of 45 asylum seekers on Nauru reportedly protested to have their cases reviewed and be given access to legal representation and appropriate ethnic translators. The subsequent re-examination of some 240 cases in 2004 resulted in about 80% of asylum seekers being recognised as refugees (largely due to changes in Afghanistan and Iraq).

One person who gained particular insight into the processing that occurred on Nauru was refugee lawyer, Marion Le who was the only person granted permission (but not funding) by then Minister Vanstone to provide legal representation to asylum seekers from 2003 to 2005. During this time, Marion Le travelled to Nauru on three occasions and represented 284 asylum seekers, all of whom subsequently obtained favourable outcomes. However, in her submissions to federal parliament in 2006, she outlined widespread flaws in the decision making process and concluded there was no basis for confidence in the system that had been used. She also considered that it was absolutely vital that asylum seekers have proper legal representation because the system is too complex and intimidating to negotiate without assistance. Ms Le stated that although legal representation would prevent a large proportion of procedural errors, it would not be sufficient to ensure that the evidential basis for decisions would be adequate without access to independent review.

Although 2453 asylum seekers have been taken to PNG and Nauru since September 2012, the details of the current offshore processing arrangements are yet to be finalised.  However, it appears the Australian Government will have a limited role to play in the processing. The first interview in the RSD process in PNG has predominantly been conducted by an Australian law firm, which has been contracted by the Australian Government to undertake this role. However, no legal or advocacy services are provided. According to UNHCR, as at October 2013, only 160 out of 1093 asylum seekers in PNG had been able to lodge applications for asylum and only 55 had received RSD interviews.

Amnesty International has reported that neither PNG nor Australia provides a free legal service to asylum seekers during the assessment process. Asylum seekers can engage private lawyers, but they must have a licence to practise law in PNG. However, as UNHCR has observed, unlike Australia, PNG does not have legal service providers with readily available capacity and experience in RSD who are able to provide free legal advice to assist asylum seekers.

Although the PNG Government intends to establish an independent review panel comprised of two governmental officers, UNHCR has emphasised that ‘it is essential that any appointed officials have a high degree of experience, expertise and knowledge in refugee law and a special expertise in dealing with vulnerable cases, especially survivors of torture and trauma’.

In amongst all the uncertainty currently surrounding the processing arrangements that will be adopted on Australia’s behalf in PNG and Nauru there is one historical certainty that cannot be overlooked. Since 2001, the vast majority of asylum seekers that have arrived by boat have been found to be genuine refugees.  Approximately 70% of asylum seekers who were processed on Nauru and PNG under the Pacific Solution were determined to be refugees in need of protection. Similarly, Departmental statistics indicate that over the last five years, an average of about 70% of asylum seekers arriving by boat have been determined (at first instance) by the Department to be refugees. On average, over the last five years, 95% of those who had their applications reconsidered by the Department following independent review, were accepted as refugees. 

It is not known whether the Australian Government will continue to release statistics on the outcome of its offshore refugee status determinations. However, if appropriate standards and procedures are adopted, the acceptance rates should not (in theory) substantially differ from those of previous years —unless of course there is a significant and durable change in the countries of origin, being predominantly Afghanistan, Iran, Pakistan, and Sri Lanka.


Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print

FlagPost

Flagpost is a blog on current issues of interest to members of the Australian Parliament


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

refugees asylum immigration Parliament climate change elections social security health financing Australian Defence Force women taxation welfare policy Australian foreign policy welfare reform sport Medicare employment illicit drugs gambling higher education disability Middle East Australian Sports Anti-Doping Agency World Anti-Doping Agency Australian Bureau of Statistics health reform emissions trading industrial relations united states statistics private health insurance Carbon Pricing Mechanism United Nations school education indigenous Australians aid steroids WADA federal budget politics labour force Australian Federal Police transport detention criminal law ASADA Afghanistan governance poker machines income management people trafficking Fair Work Act 43rd Parliament Australian Public Service International Women's Day Australian Crime Commission Papua New Guinea parliamentary procedure National Disability Insurance Scheme children's health food OECD debt defence capability federal election 2013 Australian Electoral Commission aged care environment election results Senate pensions law enforcement UK Parliament pharmaceutical benefits scheme planning skilled migration multiculturalism people smuggling doping child protection HECS Higher Education Loan Program paid parental leave High Court international relations corruption federal state relations Asia Australia in the Asian Century dental health New Zealand ALP political parties constitution public service reform forced labour aviation coal seam gas crime customs social media ADRV Census Newstart Parenting Payment health employee employer Federal Court foreign debt gross debt net debt European Union domestic violence Constitutional reform food labelling carbon tax banking terrorist groups United Kingdom leadership public policy terrorism welfare Australian Security Intelligence Organisation intelligence community Drugs research and development voting mental health health system human rights Northern Territory Emergency Response science Electoral reform regional unemployment productivity accountability military history Indigenous Indonesia Pacific Islands speaker superannuation middle class welfare welfare systems question time animal health Department of Agriculture Fisheries and Forestry trade unions integrity same sex relationships foreign bribery Australian Secret Intelligence Service firearms export liquefied natural gas local government referendum children Australian economy mining forestry Tasmania financial sector Canada United Nations Security Council climate Intergovernmental Panel on Climate Change expertise Senators and Members family assistance by-election US economy housing affordability ASIO new psychoactive substances synthetic drugs UNODC reserved seats regulation Parliamentary remuneration Population Hung Parliament federal budget 2011-12 paternalism public health slavery Trafficking in Persons Report homelessness school chaplains ministries water federal election 2010 Medicare Locals primary care regional students Youth Allowance entitlements salary sea farers violence against women Special Rapporteur transparency money laundering early childhood education asylum seekers national security bulk billing China disability employment World Trade Organization Australia renewable energy language education Italy roads international students skilled graduate visas temporary employment visas apologies standard of proof arts health risks World Health Organisation disciplinary tribunals railways infant mortality honorary citizen suspension of standing and sessional orders live exports contracts workplace policies peace keeping disorderly conduct same-sex marriage Parliament House retirement Rent Assistance constitutional recognition of local government anti-dumping national heritage NHMRC nutrition GDP world heritage submarines Somalia defence budget First speech election timetable sitting days prime ministers standing orders public housing cancer gene patents genetic testing carbon markets universities Ireland public interest disclosure whistleblowing Productivity Commission vocational education and training limitation period Trade; tariffs; safeguards; Anti-dumping leave loading political engagement Korean peninsula counselling pests suicide social policy alcohol computer games plebiscites therapeutic goods Therapeutic Goods Administration federalism federation preselection Iran sanctions baby bonus early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin citizen engagement policymaking biosecurity hendra environmental law COAG Ministerial Councils nuclear Work Choices republic hospitals qantas ANZUS Norway President Barack Obama Presidential visits advertising electricity energy maritime floods ADHD stimulant medication 44th Parliament 2015 e-voting internet voting nsw state elections Indigenous health procurement citizenship Defence ACT Norfolk Island External Territories High Court; Indigenous; Indigenous Australians; Native Title Indigenous education ABS Trade Age Pension Death penalty capital punishment execution Bali nine Bali bombings emissions reduction fund; climate change child care funding refugees immigration asylum ACT Assembly Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 sexual abuse online grooming sexual assault of minors social services EU fishing asylum refugees immigration political finance donations Antarctica Diplomacy Disability Support Pension by-elections state and territories China soft power education Fiji India fuel Scottish referendum Members of Parliament Middle East; national security; terrorism Racial Discrimination Act; social policy; human rights; indigenous Australians Migration; asylum seekers; regional processing China; United States; international relations fiscal policy innovation Bills NATO workers anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform standards copyright Australian Law Reform Commission industry Governor-General Animal law; food health policy employment law bullying Economics efficiency foreign aid human rights; Racial Discrimination Act smoking plain packaging tobacco cigarettes Work Health and Safety Asia; Japan; international relations youth Foreign policy Southeast Asia Israel Palestine political financing US politics Australia Greens Horn of Africa peacekeeping piracy Great Barrier Reef solar hot water Financial Action Taskforce terrorist financing Gonski Review of Funding for Schooling Stronger futures rural and regional political parties preselection presidential nomination Racial Discrimination Act Australian Greens

Show all
Show less
Back to top