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.