3 Third country processing
As at 23 September 2013 there were 710 asylum seekers detained in the ‘regional processing centre’ on Nauru and 798 asylum seekers detained in the centre on Manus Island. It is estimated that there are currently at least 44 children in the regional processing centre on Nauru, all of whom were transferred with their families as part of the new RSA, having arrived in Australia after 19 July 2013. The Commission is not aware that there are any children currently on Manus Island.
As at 30 June 2013, 66 asylum seekers had voluntarily returned to their countries of origin from Nauru and Manus Island.
3.1 Human rights concerns with third country processing
International law does not prohibit third country processing of the claims of asylum seekers. However, this does not mean that Australia can avoid its international human rights obligations by transferring asylum seekers to third countries. Australia may remain liable for the consequences of its action of transferring them, and must ensure that adequate safeguards are in place in those countries.
The Commission recognises the need for appropriate regional and international cooperation on issues relating to asylum seekers, refugees and the complex challenges associated with forced and mixed migration. The Commission also appreciates that associated initiatives must recognise the legitimate sovereign interests of Australia and other countries, while safeguarding human rights and upholding Australia’s international obligations.
The Commission would expect that arrangements for third country processing would comply with the following requirements:
- Be consistent with the principle of non-refoulement by ensuring protection for asylum seekers from removal to a country where they face a real risk of significant harm.
- Not breach the requirement to ensure protection from arbitrary detention.
- Provide adequate safeguards for children – particularly those who are unaccompanied.
- Ensure appropriate conditions for detention which respect the inherent dignity of the human person and do not amount to cruel, inhuman or degrading treatment.
- Provide for independent monitoring and oversight of facilities – to ensure compliance with human rights standards, including the adequacy of conditions.
The Commission has repeatedly expressed concerns about how the current approach to third country processing addresses these issues.
In June 2013 the Parliamentary Joint Committee on Human Rights (PJCHR), having inquired into the regional processing legislation, concluded that the ‘measures as currently implemented carry a significant risk of being incompatible with a range of human rights.’
The Commission’s analysis of the key human rights issues arising from the existing third country processing regime is outlined below.
The Commission is concerned that the third country processing arrangements may not protect asylum seekers from being removed to a country where they face a real risk of significant harm. The PJCHR has expressed similar concern ‘that the regional processing arrangements do not ensure that Australia’s non-refoulement obligations will be respected’.
Under the third country processing arrangements, the Minister has the discretion to consider assurances from a country that it will not send asylum seekers to another country where they are at risk of refoulement, and to exempt a person from being transferred to a ‘regional processing country’ if issues arise in relation to Australia’s non-refoulement obligations.
The Commission is concerned that these discretionary powers do not provide adequate safeguards against breaches by the Australian Government of its non-refoulement obligations. Broad and non-compellable discretionary powers leave the Minister with the power to decide whether or not to expose individual asylum seekers to the risk of violations of their human rights.
In addition, the principle of non-refoulement under the Convention Relating to the Status of Refugees and its Protocol (Refugee Convention) requires States to provide asylum seekers with effective access to ‘fair and efficient asylum procedures’. UNHCR has expressed concern about the refugee status determination framework and procedures currently provided in Nauru and PNG.
There have also been delays in processing that have led to prolonged periods in detention. Processing in Nauru took six months to begin and no determinations had been made as of September 2013. Preliminary interviews had just begun in PNG in June/July 2013, prior to the post-13 August 2012 transferees being taken back to Australia. Interviews for the post-19 July 2013 transferees were expected to begin in PNG on 26 August 2013.
The Commission has particular concerns about the removal of any lesbian, gay, bisexual, transgender or intersex (LGBTI) asylum seekers to a country in which homosexual activity is criminalised, as it is in PNG. The Australian Government stated that LGBTI asylum seekers arriving after 19 July 2013 would not be exempt from transfer to PNG.
(b) Arbitrary detention
The stated intention of the Australian, Nauruan and Papua New Guinean Governments is that both regional processing centres will be open, with asylum seekers free to come and go. However, currently both the Nauru and Manus Island processing centres are still closed detention centres, allowing asylum seekers no freedom of movement. No timeframe has been given as to when the facilities will be transitioned to open facilities.
So far all transferees, including children, have been subjected to mandatory detention. The detention of transferees on Nauru and Manus Island involves no individualised assessment of the need for detention. Further, asylum seekers on Nauru and Manus Island have been subjected to lengthy periods in detention during which no processing was taking place. No information was provided to them as to when refugee status determination processing would commence, nor were they given any indication of how long their detention was expected to last.
The Commission requested statistics from the Department on the length of time that transferees have spent detained in regional processing centres. This information had not been provided at the time of publication.
In its consideration of the regional processing package of legislation, the PJCHR raised similar concerns to the Commission regarding arbitrary detention, and concluded that the delays in processing and continued detention of asylum seekers ‘appears to constitute arbitrary detention’. Similarly, in June 2013, UNHCR found that the practice of mandatory and indefinite detention on Manus Island was arbitrary and therefore in breach of the ICCPR.
(c) Conditions of detention
The Commission is concerned about the numerous reports that highlight the poor conditions in the regional processing centres, and the impacts on the physical and mental health of detainees. In particular, claims have emerged of repeated incidents of self-harm and attempted suicide on both Nauru and Manus Island, as well as claims of rape and ill-treatment on Manus Island. Since transfers began in September 2013, the Department reports that there have been 105 incidents of self-harm on Nauru, and 24 incidents of self-harm on Manus Island.
Prolonged detention had devastating impacts on some asylum seekers who were detained on Nauru and Manus Island between 2001 and 2008. Some were diagnosed with a range of mental illnesses including depression, anxiety, post-traumatic stress disorder, adjustment disorder and acute stress reaction. There were also high levels of actual and threatened self-harm among these people. Further, there was heavy use of medication including anti-depressants, anti-anxiety, psychotropic and sleeping medication among people in detention on Nauru and Manus Island.
The Manus Island regional processing centre remains temporary. Accommodation for single adult males is in tents, and families (when they were on the island), were housed in demountable dongas. In June 2013 UNHCR noted cramped, crowded, hot conditions, hygiene concerns, and insufficient division between families and single adult males. UNHCR found that the conditions on Manus Island were harsh and remained below international standards. Permanent facilities are planned for a location in the main town on Manus Island, Lorengau, and the Australian Government recognised the urgency of completing such facilities. Building was expected to start in July 2013 and be completed by December 2013. However, building has not yet started and there is no clear timetable for when works will commence. Instead, the temporary facilities are being expanded to accommodate post-19 July 2013 arrivals.
In December 2012 UNHCR found the conditions in the Nauru regional processing centre to be ‘harsh and unsatisfactory’ with similar concerns to those on Manus Island: the extreme heat, overcrowding, and lack of privacy.
Since that time, construction of more permanent structures on Nauru improved the accommodation for a time. However, following the riot in July 2013, asylum seekers are again accommodated primarily in tents. After the riot, staff from the Nauru regional processing centre published a statement describing the conditions for those in detention as ‘cruel and degrading’.
The Commission considers that detaining asylum seekers for a prolonged period of time in temporary facilities where some must live in tents, are subjected to harsh weather, have little privacy, and access to only basic facilities, may breach international human rights standards regarding the conditions and treatment of people in detention.
The harsh conditions of detention may also lead to breaches of other human rights, such as the right to an adequate level of health care.
The PJCHR expressed concern with the ‘absence of legally-binding requirements relating to minimum conditions in regional processing facilities’, and considered that the Australian Government had not demonstrated that the conditions were consistent with the provisions of the ICCPR, the ICESCR, the CRC and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The PJCHR found that the cumulative effect of the third country processing arrangements was likely to have a significant impact on the physical and mental health of asylum seekers, contrary to the right to health, and the prohibition against degrading treatment.
(d) Transfer of children and unaccompanied minors to third countries
The Commission has repeatedly stated that hot, remote locations are not appropriate places to send asylum seeker children, or other vulnerable groups. The mandatory and prolonged detention of children on Nauru and Manus Island breaches the requirement under the CRC to detain children only as a measure of last resort and for the shortest appropriate period of time. Additionally, the conditions of detention may lead to breaches of other children’s rights, for example their right to the highest attainable standard of health and access to health care services, and their right to education.
Private healthcare provider International Health and Medical Services, has recommended to the Department that children younger than five and pregnant women should not take anti-malaria medicine and should therefore not travel to Manus Island, which has endemic rates of malaria. The PJCHR considered that the conditions on Manus Island in particular were unfit for children and vulnerable individuals, and fell short of the standards of treatment required under the CRC. The PJCHR suggested that further transfers of such individuals should be suspended until more appropriate living conditions were established.
As discussed in section 2.2(c) above, the CRC requires the Australian Government to ensure that children who are unaccompanied by their parents, (especially those who are seeking asylum), receive special protection and assistance. Also, as the assigned legal guardian of unaccompanied minors, the Minister is under an obligation to act in their best interests. For a range of reasons, it is difficult to see how, in the vast majority of cases, transferring unaccompanied minors to a third country for processing of their claims for protection could be in their best interests.
The Commission is not aware of any unaccompanied minors currently on Nauru or Manus Island. However, the Commission continues to have significant concerns regarding the arrangements for the care and custody of unaccompanied minors that in the future may be transferred to Nauru and Manus Island. The Minister ceases to be the guardian of unaccompanied minors who are transferred from Australia to a ‘regional processing country’. It is unclear what arrangements will be put in place for the guardianship of any unaccompanied minors transferred to PNG. The Minister for Justice in Nauru is the guardian for unaccompanied minors.
(e) Independent monitoring
Regular independent monitoring of immigration detention facilities is essential in order to increase accountability and transparency, and thereby guard against human rights abuses. In the past, the Commission has emphasised the need for a more comprehensive monitoring mechanism to ensure that conditions in immigration detention facilities meet human rights standards. The need for such a mechanism is heightened on Nauru and Manus Island due to the limited transparency surrounding the detention operations there, and because the remote locations make them less accessible to media and monitoring bodies.
Currently, there is no monitoring body with all of the key features necessary to be fully effective: independence from the Department; adequate funding to fulfil the role; the capacity to maintain an ongoing or regular presence at immigration detention facilities; a specific statutory power to enter immigration detention facilities; comprehensive public reporting for transparency; and the capacity to require a public response from government.
Currently, in relation to the regional processing facilities in Nauru, there is a joint advisory committee, jointly chaired by Nauruan and Australian officials, and including a number of members of the Minister’s Council on Asylum Seekers and Detention. There is currently no monitoring or advisory body regarding the Manus Island regional processing facilities.
There have been reports that access to the facilities by the media is being restricted. The Department maintains that ‘access to [regional processing] centres is a matter for the host countries’.
The creation of a more comprehensive and independent monitoring mechanism, to ensure that conditions in immigration detention meet human rights standards, could be achieved through the ratification of the Optional Protocol to the Convention against Torture (OPCAT). The Commission urges the Australian Government to ratify and implement OPCAT as a matter of priority.
 J Ireland, P Martin and D Hurst, ‘Christmas Island residents ‘will tell the world’ about asylum seeker arrivals: union leader’, The Sydney Morning Herald, 23 September 2013. At http://www.smh.com.au/federal-politics/political-news/christmas-island-residents-will-tell-the-world-about-asylum-seeker-arrivals-union-leader-20130923-2u8se.html (viewed 1 October 2013).
 DIAC response, note 26, p 7.
 G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, 2007), pp 408-411; Human Rights Committee, Munaf v Romania, Communication No. 1539/2006, UN Doc CCPR/C/96/D/1539/2006 (2009), para 14.2 (and the jurisprudence cited therein). At http://www.refworld.org/docid/4acf500d2.html (viewed 1 October 2013).
 See Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Human Rights Examination of the Migration (Regional Processing) Package of Legislation (January 2013), section 7. At http://www.humanrights.gov.au/submissions/examination-migration-regional-processing-package-legislation (viewed 1 October 2013).
 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Ninth Report of 2013: Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation (2013), para 2.200. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/92013/index (viewed 1 October 2013).
 Parliamentary Joint Committee on Human Rights, above, para 2.195.
 Migration Act 1958 (Cth), ss 198AB(3)(b) and 198AE. See also the Hon C Bowen MP, Minister for Immigration and Citizenship, Correspondence to H Jenkins MP, Chair, Parliamentary Joint Committee on Human Rights, 15 November 2012. Available at http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Committee_Activity/migration/correspondence/~/media/Committees/Senate/committee/humanrights_ctte/activity/migration/correspondence/min_response.ashx (viewed 1 October 2013).
 Refugee Convention, note 139, art 33.
 UNHCR, Global Consultations on International Protection: Asylum Processes (Fair and Efficient Asylum Procedures), (2001), paras 4–5. At http://www.refworld.org/docid/3b36f2fca.html (viewed 1 October 2013); UNHCR, Advisory Opinion, note 139, para 8 (and the citations in footnote 14).
 UNHCR, UNHCR Monitoring Visit to Manus Island, Papua New Guinea, 11–13 June 2013 (2013). At http://www.refworld.org/docid/51f61ed54.html (viewed 1 October 2013); UNHCR, UNHCR Mission to the Republic of Nauru, 3–5 December 2012 (2013). At http://www.refworld.org/docid/50cb24912.html (viewed 1 October 2013).
 DIAC response, note 26, p 8.
 Section 210 of the PNG Criminal Code Act 1974 makes male homosexual acts criminal and provides for punishment of up to 14 years’ imprisonment. UNHCR has said that ‘[i]t is the policy of the UNHCR that persons facing attack, inhuman treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees’: Protecting Refugees: Questions and Answers (2002), at http://www.unhcr.org/3b779dfe2.html (viewed 1 October 2013). The United Kingdom Supreme Court has held that gay refugees cannot be sent to a country in which they will be free from persecution only as long as they hide their sexuality: HJ (Iran) v Secretary of State for the Home Department  UKSC 31 (07 July 2010).
 S Ozturk, ‘Dreyfus confirms: LGBTI refugees bound for Papua’, Star Observer, 8 August 2013. At http://www.starobserver.com.au/news/2013/08/08/dreyfus-confirms-lgbti-refugees-bound-for-papua/107488 (viewed 1 October 2013).
 The Statement about arrangements that are in place, or are to be put in place, in the independent state of Papua New Guinea for the treatment of persons taken to Papua New Guinea which was tabled in the Australian Parliament with the Instrument of Designation of Papua New Guinea as a ‘Regional Processing Country’ states that after security and health assessments, people transferred to PNG ‘will be permitted to leave the Centre with an escort for approved activities’ (para 2(b)). However, the Department of Immigration and Citizenship stated in Senate Estimates that the intention is for the Manus Island Regional Processing Centre to be an open centre: see Evidence to the Senate Legal and Constitutional Affairs Committee (Estimates), Canberra, 28 May 2013, p 159 (Dr Wendy Southern). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Festimate%2F0f70343a-b92d-45d8-b692-58b9623ba9cd%2F0000%22 (viewed 1 October 2013). The Statement about arrangements that are in place, or are to be put in place, in Nauru for the treatment of persons taken to Nauru provides that the Nauruan Government has advised the Australian Government that people transferred to Nauru ‘will have freedom of movement throughout Nauru. It is anticipated, but not legally required, that they will ordinarily return to their accommodation by sunset.’ (para 2(b)). The documents tabled in Parliament with the Instruments of Designation of Nauru and PNG can be found at http://www.humanrights.gov.au/transfer-asylum-seekers-third-countries (viewed 1 October 2013).
 DIAC response, note 26, p 7.
 See generally UNHCR, UNHCR Monitoring Visit to Manus Island, note 155; UNHCR, UNHCR Mission to the Republic of Nauru, note 155.
 Parliamentary Joint Committee on Human Rights, note 150, para 2.196.
 UNHCR, UNHCR Monitoring Visit to Manus Island, note 155, para 60.
 M Davis, ‘Rape and torture on Manus Island: whistleblower’, Interview with Rod St George, SBS Dateline, 23 July 2013. At http://www.sbs.com.au/news/article/2013/07/24/rape-and-torture-manus-island-whistleblower and http://www.sbs.com.au/dateline/story/about/id/601700/n/manus-whistleblower (viewed 1 October 2013); ‘Nauru detainees protest by stitching lips together’, ABC Online, 20 February 2013. At http://www.abc.net.au/news/2013-02-20/an-nauru-detainees-stitch-lips-together/4529252 (viewed 1 October 2013); Refugee Action Coalition Sydney, ‘More asylum seekers self-harm and hunger strike on Manus Island’, 14 January 2013. At http://www.refugeeaction.org.au/?p=2447 (viewed 1 October 2013).
 DIAC response, note 26, p 7.
 See the discussion of the ‘Pacific Solution’ in the section 1.1 of this report.
 See K Bem et al, A price too high: the cost of Australia’s approach to asylum seekers (2007), section 3.4. At http://oppenheimer.mcgill.ca/A-Price-Too-High-the-cost-of (viewed 1 October 2013).
 Bem et al, above, section 3.1.
 Bem et al, above.
 UNHCR, UNHCR Monitoring Visit to Manus Island, note 155, Summary and Section IV.
 Department of Immigration and Citizenship, Submission to the Parliamentary Standing Committee on Public Works on the Manus Island Regional Centre Project (20 March 2013), and Supplementary to Submission to the Parliamentary Standing Committee on Public Works on the Manus Island Regional Centre Project (19 April 2013). Both at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pwc/regionalprocessing/subs.htm (viewed 1 October 2013).
 Evidence to the Parliamentary Standing Committee on Public Works, Canberra, 1 May 2013, p 9 (Peter Douglas). At http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=pwc/regionalprocessing/hearings.htm (viewed 1 October 2013).
 Department of Immigration and Citizenship, ‘Massive air lift delivers for Manus Island RPC’, (Media Release, 29 July 2013). At http://www.newsroom.immi.gov.au/releases/massive-air-lift-delivers-for-manus-island-rpc (viewed 1 October 2013); and Department of Immigration and Citizenship, ‘Cargo flights begin for Manus Island expansion’, (Media Release, 28 July 2013). At http://www.newsroom.immi.gov.au/releases/cargo-flights-begin-for-manus-island-expansion (viewed 1 October 2013).
 See generally UNHCR, UNHCR Mission to the Republic of Nauru, note 155.
 O Laughland, ‘Nauru riot was inevitable, say Salvation Army staff’, The Guardian, 24 July 2013. At http://www.theguardian.com/world/2013/jul/24/nauru-riot-inevitable-salvation-army (viewed 1 October 2013).
 Parliamentary Joint Committee on Human Rights, note 150, para 2.195; CAT, note 139.
 ICESCR, art 12.
 ICCPR, art 7; Parliamentary Joint Committee on Human Rights, note 150, para 2.195.
 For example, see generally HREOC, A last resort?, note 41.
 CRC, Art 37(b).
 CRC, Arts 24 and 28. For further details see Australian Human Rights Commission, Submission to the Joint Parliamentary Committee on Human Rights, note 149, Chapter 13.
 IHMS is contracted by the Australian Government to deliver health services to asylum seekers on Nauru and Manus Island: R de Boer, Health care for asylum seekers on Nauru and Manus Island, Parliamentary Library Background Note (28 June 2013). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/AsylumSeekersHealthCare (viewed 1 October 2013).
 B Hall, ‘Malaria risk for mothers and children’, The Sydney Morning Herald, 30 July 2013. At http://www.smh.com.au/federal-politics/federal-election-2013/malaria-risk-for-mothers-and-children-20130729-2qv2j.html (viewed 1 October 2013).
 Parliamentary Joint Committee on Human Rights, note 150, para 2.195.
 Parliamentary Joint Committee on Human Rights, above.
 Immigration (Guardianship of Children) Act 1946 (Cth), sub-ss 6(1) and (2)(b).
 Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru), s 15.
 B Hall, ‘Media barred from Manus Island’, The Age, 28 August 2012. At http://www.theage.com.au/federal-politics/political-news/media-barred-from-manus-island-20120827-24wov.html (viewed 1 October 2013); C Palmer, ‘Media needs improved access to asylum seekers in detention: experts’, The Conversation, 15 October 2012. At http://theconversation.com/media-needs-improved-access-to-asylum-seekers-in-detention-experts-10136 (viewed 1 October 2013); Senator S Hanson-Young, ‘Greens call for media access to offshore detention camps’, (Media Release, 22 August 2013). At http://greensmps.org.au/content/media-releases/greens-call-media-access-offshore-detention-camps (viewed 1 October 2013).
 DIAC response, note 26, p 9.