What can we learn from Australia’s Pacific Solutions?

Margarita Fourer

September 2017

The move to close the Papua New Guinea (PNG) detention centre and a leaked transcript between Trump and Turnbull regarding resettling refugees off PNG to the US have again raised questions regarding the Australian offshore detention policies. One such question focuses on international cooperation, and whether any lessons can be learned from Australia’s agreements with the two Pacific countries of Nauru and PNG regarding the transfer, detention and protection of asylum seekers that had arrived in Australia by boat.

International cooperation

International cooperation on asylum should be a good thing for refugees. The intended objective of cooperative arrangements with regards asylum was put forward during the 2011 UNHCR Expert Meeting on International Cooperation to Share Burdens and Responsibilities. Specifically, “cooperative arrangements must … enhance refugee protection and prospects for durable solutions” and “must always be guided by the basic principles of humanity and dignity”.

In practice however, international cooperation in addressing irregular arrivals is an ever-growing web of securitisation and deterrence measures, termed “cooperation-based non-entrée policies”. These measures, most of which Australia utilises in one form or another, include boat tow backs, as well as providing money and equipment to transit countries to stop the movement of people at their territories.

One of Australia’s key policies has been entering into cooperation agreements to transfer asylum seekers, who arrived in Australia irregularly by boat, to Nauru and Manus Island in Papua New Guinea (PNG). This policy, called the Pacific Solution, was originally implemented between 2001 and 2008. The current iteration of the Pacific Solution began as a ‘circuit breaker’ in 2012, but continues to this day.

By comparing the two iterations, a number of lessons can be identified. A clear identification of these lessons could be used to improve future cooperative arrangements towards their intended objective rather than the current one of non-entrée and deterrence that had been shown time and again to be in breach the human rights of the asylum seekers and refugees affected by them. The lessons discussed in this piece focus on the development of national asylum procedures and the provision of durable solutions to the refugees in Nauru and Manus Island.

National asylum procedures

While the two Pacific solutions have done little to improve refugee protection regionally, or in Australia for that matter, some steps towards refugee protection have been achieved. In particular, with regards to the legal system of both Nauru and PNG, and specifically to the two countries’ ability to make assessments of whether asylum seekers are refugees based on the definition of the Refugee Convention, a process called Refugee Status Determination (RSD). A country with a developed legal system for refugee protection is a better partner for international arrangements because it is able to provide a level of legal protection to asylum seekers and refugees, irrespective of whether they arrived as part of an international agreement or sought protection from that country directly.

During the 2001-2008 Pacific Solution, Nauru was not a signatory to the Refugee Convention. It became one in 2011, a year prior to the signing of the 2012 Memorandum of Understanding (MoU) of the second Pacific Solution. PNG, on the other hand, has been a signatory of the Refugee Convention since 1986, although with a number of reservations in relation to employment, housing, public education, freedom of movement, non-punishment of unlawful entry, expulsion and naturalisation. At the time of its revised 2013 MoU with Australia, these reservations were partially withdrawn, but only “in relation to refugees transferred by the Government of Australia to Papua New Guinea”, not other refugees already present in PNG.

Similarly, during the 2001-2008 Pacific Solution, neither Nauru nor PNG had the legislative framework to engage in the RSD process. Consequently, RSD was conducted by Australia and UNHCR on the two islands. Since 2012, both Nauru and PNG, with input from Australia, have developed legal processes for the assessment of refugee claims. Of note, while PNG has been a signatory of the Refugee Convention for a longer period, Nauru’s legislative development included the incorporation of the Refugee Convention in its Refugee Convention Act 2012, whereas PNG’s legislation relied on selective elements of the Refugee Convention being integrated in its Migration Regulation 1979.

The Nauruan RSD system appears more robust, with the eventual addition of complementary protection, expanding refugee protection to include human rights law, and establishment of a Refugee Status Review Tribunal, which is able to conduct merit review of negative decisions regarding asylum seekers’ refugee status. The PNG system, on the other hand, has no complementary protection, an uncertain review process, and added overreaching reasons for exclusion from refugee status that go far beyond the exclusion criteria as provided by the Refugee Convention.

These differences are reflected in the rates of refugee status recognition. As at April 2017, 85% of asylum seekers had been recognised as refugees by Nauru, while only up to 70% (depending on which way the uncertain figures provided by the Australian Government are calculated) have been recognised by PNG. This is in comparison to the reported 70% of people determined to be refugees by the Australian government and UNHCR during the 2001-2008 Pacific Solution.

From a legal perspective, the second iteration of the Pacific solution suggests that offshore processing agreements can, with the right support, result in the development of an RSD system in cooperating countries.

Durable solutions

Nonetheless, no legal development in refugee protection is effective if durable solutions are not achieved. Durable solutions, defined by the UNHCR as voluntary repatriation, local integration and resettlement, are intended to provide recognised refugees with a protection of a state through residency that may lead to citizenship. To that end, the first iteration of the Pacific solutions was the more successful in affording people permanent solutions through resettlement, primarily to Australia, with NZ and a number of other countries assisting.

During the current Pacific solution, the Australian government has completely ruled out resettling people in Australia, including allegedly reneging on an agreement with UNHCR to allow family reunification. Furthermore, it rejected an offer by NZ to resettle a small number of refugees offshore. The Cambodia deal has not afforded effective protection to those resettled there, despite the large price tag associated with the deal. There remains little hope that the resettlement agreement with the US will provide refugees with a durable solution.

It is also clear that neither Nauru nor PNG have the capacity to host refugees on a large scale. Nauru because it is a small nation, environmentally and economically depleted and at high risk from natural disasters and rising sea levels. Irrespective of the resettlement arrangements signed with Australia, the escalating tensions and attacks on refugees by the local population of Manus Island have confirmed the current incapability of the PNG island to permanently host refugees.

With regards to providing durable solutions through international cooperation, it clearly remains the duty of the transferring country to ensure durable solutions are available to displaced persons seeking asylum, irrespective of the irregularity of their arrival.

A look at the lessons from the two attempts at the Pacific Solution has shown that just as international cooperation requires that a working legal system be provided by at least one of the countries to ensure that effective refugee determinations take place, so is a viable and certain resettlement plan essential before undertaking any deals to process irregular arrivals offshore. Any delay in the establishment of a legal system to conduct refugee determinations or the provision of resettlement places, has been shown to be not only unworkable, but detrimental to the respect for human rights, humanity and dignity of the people seeking protection.

Margarita Fourer is undertaking a combined PhD at the Danube University Krems and Maastricht University. Between 2015 and 2017, Margarita worked in relocation in Israel, which included Canadian sponsorship visas and family reunification to a number of EU countries, as well as in US resettlement in Kenya. Margarita’s research interests are focused on durable solutions in refugee and migration law. Her PhD is looks at conducting a comparative analysis of attempted, past, and current transfer agreements.