TY - JOUR
AU1 - Gleeson,, Madeline
AB - Abstract In 2012, Australia reintroduced arrangements for ‘offshore processing’ in the Pacific, which forcibly transferred asylum seekers arriving by boat to the Republic of Nauru and Papua New Guinea (PNG), purportedly for refugee status determination (RSD). Previous studies have focused on the detention of asylum seekers transferred to these States in ‘regional processing centres’ (RPCs). This article instead provides a factual foundation for more current inquiries into the content and scope of each State’s protection obligations under international law, which have increased in importance since the end of closed detention in the RPCs in 2015 and 2017. The formal legal and diplomatic arrangements established in and between the three States for the transfer of asylum seekers; processing of their claims; and provision of durable solutions will be examined, with reference to the minimum standards required. The article identifies a protection deficit in the legal architecture and bilateral arrangements underpinning offshore processing. Since their inception, the arrangements have lacked clarity regarding the respective obligations of the three States; involved transfers even in the absence of fair and efficient procedures for RSD in Nauru and PNG; and failed to ensure timely access to appropriate outcomes for all transferees (whether determined to be in need of international protection or not). The article therefore concludes that Australia should facilitate readmission to its territory for all people in Nauru and PNG who do not have access to an appropriate alternative outcome. It also suggests that any future attempts to establish third country transfer procedures will require radically different legal and diplomatic arrangements to enhance responsibility sharing and cooperation on refugee protection, and to comply with international law. 1. INTRODUCTION In 2012, Australia reintroduced arrangements for the ‘offshore processing’ of asylum seekers arriving by boat and without a visa, thereby resurrecting the ‘Pacific Solution’ it had previously implemented between 2001 and 2007.1 In the new iteration, the arrangements involved the forcible transfer of asylum seekers to the Republic of Nauru (Nauru) and Manus Island in Papua New Guinea (PNG) for processing, the creation of new refugee status determination (RSD) procedures in those States, and protracted uncertainty about what durable solutions would be available for people determined to be in need of international protection. Although originally presented as a short-term ‘circuit breaker to the current surge in irregular migration to Australia’,2 the return to offshore processing became an enduring and central pillar of Australian refugee policy. By 2019, more than 3,150 asylum seekers had been transferred from Australia to Nauru and PNG3 (of whom just over 1,000 remained, awaiting final decisions on their claims or a durable solution4) and the arrangements looked set to continue for the foreseeable future. The legal implications of Australia’s offshore processing policies have been the subject of extensive study, including in academic literature;5 judicial proceedings in Australia, Nauru, and PNG;6 Australian governmental inquiries;7 and the work of international treaty bodies and mechanisms.8 Many of these studies have focused on the ‘regional processing centres’ (RPCs) in Nauru and on Manus Island, where asylum seekers were previously detained; the conditions of detention in these centres; and the possibility of holding Australia accountable for harm suffered by detainees under either international or domestic law. However, with the transition of the Nauru RPC to an ‘open’ residential site in October 20159 and the closure of the Manus RPC in October 2017, other issues have assumed new importance. The previous focus on the fact, conditions, and governance of detention in the RPCs has been replaced by questions regarding each State’s respective obligations with regard to processing asylum claims and providing protection. Specifically, the content and scope of any protection obligations Australia may continue to owe in relation to people transferred offshore, even if they are no longer held in closed detention in RPCs, are the subject of debate. These questions are relevant to challenging the claim that Australia’s previous and ongoing role in the offshore processing arrangements is merely ‘supportive’ or subsidiary to those of the territorial States,10 clarifying the extent of each State’s obligations under international law, and any future efforts, through national or international mechanisms, to encourage Australia, Nauru, and PNG to fulfil their obligations or hold them accountable for failing to do so. They are also relevant to assessing comparable arrangements that States might seek to establish elsewhere. Such questions call for a renewed consideration of the legality and legitimacy of the arrangements in general. By forcibly removing asylum seekers from Australia and requiring their claims to be assessed elsewhere, offshore processing denies asylum seekers the opportunity to have their protection needs considered and addressed in the territory of the State in which they sought, or intended to seek, protection. Although neither explicitly prohibited nor authorized under the Refugee Convention and its Protocol11 (and the relevant human rights treaties12), arrangements such as offshore processing, which purport to make asylum seekers find ‘protection elsewhere’, do not exist in a legal vacuum. Instead, ‘[l]ike many measures which a state may take in the grey, apparently unregulated areas of international law, offshore processing is in fact subject to law, and subject to the rule of law’.13 Various efforts have been made to identify the minimum international legal requirements and standards that should be met for practices such as offshore processing. Notable among these are the Michigan Guidelines on Protection Elsewhere (Michigan Guidelines),14 the work of the Office of the UN High Commissioner for Refugees (UNHCR),15 and studies by legal academics.16 With reference to such work, this article provides a factual foundation for the inquiries set out above about each State’s respective protection obligations. It does so by examining the formal legal and diplomatic arrangements established in and between the three States for the transfer of asylum seekers, processing of their claims, and provision of durable solutions. It concludes that there is a protection deficit in the legal architecture and bilateral arrangements underpinning offshore processing, which fall short of the standards required by international law and articulated by authoritative international guidance and commentary. Most critically, the arrangements have, since their inception, lacked clarity about the respective obligations of Australia and each of the receiving States; involved transfers even in the absence of fair and efficient procedures for RSD in Nauru and PNG; and failed to ensure timely access to appropriate outcomes for all transferees (whether determined to be in need of international protection or not). Australia’s active involvement on both sides of each transfer – as the sending State, but also as a State with a considerable ongoing role in the protection arrangements post-transfer – means that it has had actual knowledge of these circumstances and should have suspended transfers at an early stage. With regard to the current situation, this article concludes that Australia should facilitate readmission to its territory for all people in Nauru and PNG who do not have access to an appropriate alternative outcome. It also suggests that any future attempts to establish third country transfer procedures will require radically different legal and diplomatic arrangements if they are genuinely intended to enhance responsibility sharing and cooperation on refugee protection, and to comply with international law. 2. ARRANGEMENTS FOR THE TRANSFER OF PEOPLE TO AND FROM AUSTRALIA 2.1 Transfers from Australia to Nauru and PNG The decision to reintroduce offshore processing arrangements in the Pacific was prompted by the report of an Expert Panel on Asylum Seekers commissioned by Australian Prime Minister Julia Gillard to consider ‘policy options available … to prevent asylum seekers risking their lives on dangerous boat journeys to Australia’.17 Upon receiving the report on 13 August 2012, the Gillard government gave in-principle endorsement to all its recommendations, including the re-establishment of asylum seeker processing facilities in Nauru and PNG,18 and immediately sought to clarify whether such arrangements were permitted under Australian law. Questions about the legality of transferring asylum seekers elsewhere had arisen the previous year with the attempted transfer of a group of asylum seekers to Malaysia.19 This ‘Malaysian Solution’ had been struck down by the High Court of Australia in August 2011 on the basis that, under the Australian Migration Act 1958 (Migration Act) as it then stood, the only power to remove asylum seekers whose claims for protection had not yet been determined was under section 198A, which did not authorize removal to Malaysia.20 The court held that another State could only be designated as one to which asylum seekers were taken for processing if it was legally bound, either by international or domestic law, to meet the criteria set out in section 198A(3), namely: providing asylum seekers with access to effective procedures for assessing their claims and protection pending determination of refugee status; providing protection to people recognized as refugees pending their voluntary repatriation or resettlement elsewhere; and meeting certain human rights standards in providing this protection.21 Since Malaysia was not legally bound to meet these criteria, the court ruled that the attempt to declare it as a State to which asylum seekers could be taken for processing had been made without power and was invalid. The High Court’s ruling defeating the Malaysian Solution triggered a year of political deadlock as the Australian Parliament debated whether it also precluded Nauru and PNG from being designated as ‘offshore’ or ‘regional’ processing countries. The government argued that new legislation was necessary to ‘restore the understanding of the third country transfer provisions of the Migration Act that existed prior to the High Court’s decision’.22 Parliamentary support for such legislation proved elusive but the release of the Expert Panel’s report, and a concession from the government that it would resume offshore processing in the Pacific in the immediate term (with the aspiration of reaching parallel agreements with countries like Malaysia in the future),23 presented a fresh opportunity for the government to introduce legislation authorizing offshore processing.24 Within days of the Expert Panel’s report this legislation was accepted by both Houses of Parliament and entered into force on 18 August 2012. It gave Parliament the power to disallow decisions about where asylum seekers would be sent for processing, thereby making it ‘a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries’.25 The new Australian legislation retained much of the original architecture that had underpinned the Pacific Solution, while repealing and amending those parts that had proved fatal to the attempt to transfer people to Malaysia in 2011. Any person who entered Australia at an ‘excised offshore place’26 without prior authorization, and became an ‘unlawful non-citizen’ as a result of that entry, continued to be classified as an ‘offshore entry person’, as they had been prior to the amendments. Whereas previously the Migration Act had provided that Australian officers may detain offshore entry persons, the August 2012 amendments provided that they must detain them and take them to a regional processing country ‘as soon as reasonably practicable’ (using ‘such force as is necessary and reasonable’).27 If more than one regional processing country had been designated, the relevant Minister was required to give a written direction specifying the one to which the offshore entry person (or a class of offshore entry persons) should be taken.28 As a matter of law, an offshore entry person would only be exempt from transfer if there was no regional processing country; if all regional processing countries advised in writing that they would not accept the person; or if the Minister personally decided that it was in the ‘public interest’ to approve an exemption.29 Other than in these three circumstances, Australian officers had a duty to detain and remove all offshore entry persons, even if they tried to apply for asylum immediately upon arrival in Australia or had characteristics warranting special consideration (such as having close family members already resident in Australia or being an unaccompanied minor). Prior to removal, offshore entry persons had no automatic right to apply for asylum in Australia,30 nor were they able to contest the legality of the proposed transfer.31 Having thus amended the relevant legislation, Australia began the process of designating Nauru and PNG as ‘regional processing countries’32 and concluding memoranda of understanding (MOUs) with them to give effect to the proposed policy of offshore processing. A first set of written agreements was signed with Nauru and PNG on 29 August and 8 September 2012 respectively (the 2012 Nauru MOU and 2012 PNG MOU).33 These agreements provided that Australia ‘may’ transfer and Nauru and PNG ‘will’ accept asylum seekers (referred to as ‘transferees’) who had ‘travelled irregularly by sea to Australia’ or who had been intercepted or rescued by Australian authorities while trying to reach Australia by sea, and who were required by Australian law to be transferred to Nauru or PNG.34 They made general provision for the processing of asylum claims and the treatment of asylum seekers (including assurances that Nauru and PNG would not expel or return them to another country in circumstances amounting to refoulement), and stated that administrative arrangements giving effect to the agreements would be settled between the States parties, with any further specific arrangements to be made between them as jointly deemed necessary.35 However, they fell short of the minimum requirements for a written agreement governing transfer proposed in the Michigan Guidelines, including by failing to stipulate explicitly that Nauru and PNG would provide transferred refugees with all the rights set out in articles 2–34 of the Refugee Convention, and would guarantee UNHCR unhindered access to them.36 After signing these MOUs with Australia, Nauru and PNG began enacting domestic legislation in stages to give effect to the arrangements. On 14 September 2012, the same day that the first group of asylum seekers arrived from Australia, Nauru introduced legislation creating a new class of visa – the ‘regional processing visa’37 – applications for which could only be made by Australia in the name of the relevant visa holder.38 The visa was valid for up to three months and could be renewed, with a fee of A$3,000 per visa being payable by Australia.39 Nauru introduced further legislation in October and December 2012 establishing a process for RSD under Nauruan law, and providing for the operation of the RPC in Nauru, where asylum seekers were detained between September 2012 and October 2015.40 PNG also made a series of general amendments to its migration legislation relevant to RSD and asylum seekers residing at ‘relocation centres’.41 However, it never introduced a legal framework as comprehensive as that governing the arrangements in Nauru. PNG chose to exempt asylum seekers transferred from Australia from the need to hold an entry permit, rather than create a new visa for them,42 and left the operation of its RSD system and the Manus RPC largely unregulated by PNG law. At this early stage, while the legislation, bilateral agreements, and policies giving effect to offshore processing were being developed, the UN High Commissioner for Refugees, António Guterres, expressed concern about the arrangements set out in the written bilateral agreements and articulated by Australian government officials. In correspondence with the Australian government, he reiterated certain general principles of the international protection regime, including that ‘asylum seekers arriving at the frontier of a Convention State fall within the responsibility of that State, which includes their access to a fair and effective process’ and that claims for international protection made by people intercepted at sea were ‘to be processed in procedures within the territory of the interception State’. He described the arrangements proposed by Australia as ‘a significant exception to the normal practice’.43 Since neither Nauru nor PNG had established procedures or the capacity to undertake RSD, and neither was in a position to provide the necessary protection safeguards, he cautioned that it was not clear whether the transfer of responsibilities for asylum seekers to Nauru and PNG was fully appropriate.44 In light of the fact that ‘all operational and ancillary details will be predicated necessarily on how the question of legal responsibility is framed’, he urged that ‘it would be prudent for the legal responsibilities of both the transferring and receiving State to be very clearly and unambiguously set out in the formal arrangements’, and that oversight mechanisms be established to ensure the full implementation of those arrangements in practice.45 The UN High Commissioner for Refugees suggested that both Australia and each receiving State would have ‘shared and joint legal responsibility’ under the Refugee Convention and other applicable human rights instruments for the protection of transferred refugees.46 While he did not elaborate on precisely what such responsibility would entail, the Michigan Guidelines offer some indication of how the respective legal obligations of Australia and each receiving State could have been formally agreed. They propose that if a receiving State fails to ensure that refugees receive the benefits to which they are entitled under the Refugee Convention, ‘the sending state’s original obligations to that refugee are no longer satisfied by reliance on the transfer of protection responsibility’, and ‘[t]he sending state … should facilitate the return and readmission of the refugee in question to its territory, and ensure respect for his or her rights there in line with the requirements of the Convention’.47 They also propose that: A sending state whose officials or decision-makers have actual or constructive knowledge of breach by a receiving state of the latter state’s duty to respect the requirements of Arts. 1–34 of the Convention will ordinarily be unable to assert that Convention obligations are respected in the receiving state. It is thus disentitled from effecting any further transfers to that state under a protection elsewhere policy until and unless there is clear evidence that the breach has ceased.48 Despite this position, Australia commenced and continued effecting transfers to Nauru and PNG, even as reports proliferated of widespread and ongoing human rights violations, unlawful conduct, abuse of power, and failures of accountability in both places.49 The conclusion of agreements and commencement of transfers to Nauru and PNG did not prove immediately effective at deterring irregular maritime migration. The number of asylum seekers reaching Australia by sea continued to increase,50 quickly outstripping the capacity to accommodate them in the Nauru and Manus Island RPCs. By November 2012, before transfers to PNG had even begun, this logistical dilemma forced the Australian Immigration Minister51 to announce a change in policy, whereby the people already offshore would remain and be processed there, and some further transfers would occur, but others would begin to be released from immigration detention in Australia and granted bridging visas allowing them to move into the community while they waited to be processed.52 Decisions about who would be transferred offshore and who would be permitted to remain rested with Australia alone, and were informed by the internal policies of the Australian Immigration Department.53 In May 2013, the Migration Act was again amended to expand the categories of people liable to transfer to Nauru or PNG. Until then, asylum seekers who arrived in Australia at an excised offshore place (offshore entry persons) were liable to transfer, whereas others who travelled by sea and reached the Australian mainland could remain and apply for protection visas in Australia. The Australian government sought to remove this difference, asserting that ‘under current arrangements, there is an inherent risk that individuals may seek to travel to the Australian mainland to avoid being sent to a designated regional processing country’.54 To this end, the concept of ‘offshore entry persons’ was repealed from the Migration Act and replaced with that of ‘unauthorised maritime arrivals’, defined as any person who entered Australia by sea, whether at an excised offshore place or any other place, and became an unlawful non-citizen because of that entry.55 The bar on applying for visas was extended to all unauthorized maritime arrivals, as was Australian officers’ duty to detain and remove them to regional processing countries as soon as reasonably practicable. Thus, for asylum seekers arriving by sea, Australia effectively excised its entire territory from its own procedures for processing claims and providing protection.56 In July 2013, even more dramatic changes were made to the legal architecture of offshore processing when the Prime Ministers of Australia and PNG reached a new agreement on what would happen to refugees once their status had been confirmed. From 19 July 2013, no asylum seeker arriving in Australia by boat and determined to be a refugee in Nauru or PNG would ever be permitted to return and settle in Australia. While asylum seekers who had been transferred offshore as part of the first cohort between September 2012 and July 2013 would begin to be brought back to Australia,57 all new arrivals would be sent offshore, with any person in this second cohort determined to be in need of international protection given only the options of either integrating locally in the country where they were processed, or waiting for resettlement elsewhere. The new policy was reflected in the terms of a Regional Resettlement Arrangement (RRA) between Australia and PNG and articulated in a series of media releases and press conferences.58 In the following weeks, Australia formalized the change in policy by signing new agreements with Nauru and PNG (the 2013 Nauru MOU and 2013 PNG MOU), which replaced the 2012 agreements in broadly similar terms but reflected this July 2013 policy change.59 While the RRA envisioned that similar agreements might be reached with other Pacific nations, none were in fact concluded. 2.2 Transfers back to Australia and elsewhere from Nauru and PNG A final key piece of the legal architecture underpinning offshore processing relates to movements from Nauru and PNG back to Australia; to the other regional processing country; or elsewhere. While the 2012 and 2013 agreements envisioned the movement of asylum seekers to be unidirectional – from Australia to a regional processing country, at least until a final determination was made on each person’s claim – Australian law did make provision for certain people to be brought back to Australia on a temporary basis. The concept of ‘transitory persons’ had been introduced into the Migration Act in 2002 under the Pacific Solution60 in recognition of the fact that there were ‘a small number of exceptional situations’ in which it might be necessary to bring someone back to Australia from Nauru or PNG (such as to receive medical treatment), and that ‘[i]n order to maintain the integrity of Australia’s border controls it is necessary to ensure that the transitory person’s presence in Australia is as short as possible and that action cannot be taken to delay that person’s removal from Australia’.61 Transitory persons could be brought to Australia ‘for a temporary purpose’, but had to be returned to the relevant regional processing country ‘as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved)’.62 At the time offshore processing was reintroduced in August 2012, transitory persons were generally prohibited from applying for visas while in Australia, but could apply to be recognized as refugees if they remained in Australia for a continuous period of six months.63 This option was repealed in May 2013, leaving in place the ban on applying for visas (unless the Minister determined that it was in the public interest to allow them to do so).64 Australian officials became increasingly reluctant to approve transfers back to Australia for medical reasons around the same time as a series of cases in which people brought back within the jurisdiction of Australian courts sought judicial orders or commitments from the government to prevent their return to Nauru or PNG.65 Instead of transferring people back to Australian territory, the Australian government recruited medical experts to travel offshore (in one instance flying an entire medical team to Nauru to operate on the broken arm of a refugee child),66 or arranged for asylum seekers and refugees to be taken from Nauru to the Pacific International Hospital in Port Moresby, PNG.67 In June 2018, Australian media sources also revealed that Australia and Taiwan had signed an MOU in September the preceding year, without making its terms public, providing for refugees on Nauru in need of urgent medical care to be transferred to Taiwan to receive it there.68 The Department confirmed the existence of the MOU, that ‘several individuals’ had already received medical treatment in Taiwan and been returned to Nauru, and that ‘medical transfer is not a pathway to settlement in Australia’.69 Very little information was subsequently made publicly available about the agreement and its implementation, giving rise to contradictory reports about matters such as whether Australian Border Force (ABF) officers had forcibly removed people from Taiwan back to Nauru against medical advice.70 Despite these efforts to avoid returning people to Australia for medical treatment, a limited number of medical transfers to Australia did continue,71 and Australian courts began to play a role in decisions about medical transfers, even without people being physically present in Australian territory. In Plaintiff S99, Bromberg J considered the case of a woman who had been transferred to Nauru, had been recognized as a refugee and wished to terminate a pregnancy resulting from a rape there. Bromberg J concluded that the woman ‘had no means of survival independent of the services provided by [Australia] through its Service Providers’ rendering her ‘dependent upon [Australia] for her very existence’,72 and that Australia owed her a duty of care to ‘exercise reasonable care in the discharge of the responsibility [it] assumed to procure for her a safe and lawful abortion’.73 He accepted that there was a reasonable apprehension that Australia would fail to discharge this duty of care (specifically, by requiring her to receive the abortion in PNG),74 and ordered it to cease to fail to discharge this responsibility.75 Plaintiff S99 was followed by a series of cases in which the Australian Federal Court issued interim orders requiring Australia to remove people from Nauru or PNG to receive medical treatment. These cases proceeded on the basis that a prima facie case existed that Australia was responsible, either directly or indirectly, for the medical care received by people transferred offshore, and had a duty of care to ensure this medical care was of a standard appropriate to meet their needs.76 In each case the court held that the applicants could not obtain the necessary medical treatment in a regional processing country, and ordered Australia to transfer them either to a place where they could receive appropriate treatment, in line with the recommendations of certain medical experts,77 or to Australia specifically.78 In one case, Australia contended that to require it to bring an applicant to Australia ‘would be to tread upon the delineation of responsibilities between Nauru and the Commonwealth [of Australia]’, and foreshadowed that it would provide evidence that Nauru was in fact responsible for the applicant’s care.79 However, no such evidence was presented, and the court gave this contention ‘little weight’.80 In late 2018, Nauru began to block the medical evacuations of some refugees by denying air ambulances sent by Australia permission to land, despite orders from the Federal Court of Australia requiring the Australian government to evacuate refugees for urgent medical treatment.81 These cases raised the question of whether any failure to evacuate a person in need of urgent medical care should be attributed to Nauru or Australia (or both). In the case of ELF18, the ABF gave evidence that the Nauruan Ministry of Health’s Overseas Medical Referral (OMR) Committee had to decide whether or not to approve a transfer before the Australian government’s Transitory Persons Committee82 would decide whether to approve the person’s transfer to Australia, or to assist with their transfer to another country.83 Alternatively, approval for urgent medical transfers could be sought directly from the Nauruan Secretary for Multicultural Affairs, without going through the OMR process.84 In EUB18, Mortimer J noted that, as a result of domestic Nauruan processes, ‘the position of the government of Nauru remains one that is capable of interfering with the [Australian government] being able to carry out the orders of this Court’.85 However, she held this situation to be ‘a matter for the government of Nauru and, if at all, for a political resolution as between it and the Commonwealth of Australia’,86 concluding that: The Commonwealth [of Australia] has created this situation by establishing an arrangement of this kind for regional processing with another sovereign state. Having elected to do that, there inevitably may be risks about the decision-making of that sovereign state from time to time. Those arrangements, at least on an urgent application such as this, cannot and should not stand in the way of orders being made to preserve the life and wellbeing of an individual such as the applicant, as much as is possible on the Court being persuaded that the balance of convenience favours that occurring.87 From early 2019, the issue of medical transfers was further complicated by the passage of Australian legislation establishing a formal process for doctors to refer people in Nauru and PNG for transfer to Australia for medical or psychiatric assessment or treatment, and requiring the Australian Immigration Minister to approve referred transfers in certain circumstances.88 This law did not specify how its provisions would operate should Nauru (or PNG) choose to block a transfer referred and approved through the new process. 3. REFUGEE STATUS DETERMINATION (RSD) The arrangements for RSD for people transferred from Australia evolved over the course of the first years of offshore processing, involving officials from all three States acting in various capacities. Previously, under the Pacific Solution, UNHCR and Australian immigration officials had assessed claims, generally using the same procedures as UNHCR applied elsewhere.89 By contrast, under the new arrangements, UNHCR did not intend to play ‘any operational or active role’ beyond its supervisory mandate under article 35 of the Refugee Convention.90 The UN High Commissioner for Refugees expressed his view that, in relation both to Nauru and PNG, ‘the arrangements being contemplated are essentially between two Convention States’.91 At a minimum, these arrangements should have been subject to certain protection safeguards, the content of which depended on whether processing was carried out in Nauru and PNG by those States (what UNHCR calls ‘third country’ processing), by Australia (‘out of country’ processing), or by both Australia and Nauru or PNG jointly (‘regional processing’).92 In all cases, the arrangements should have included access to fair and efficient procedures for RSD in each receiving State, to ensure that people transferred from Australia could in fact seek asylum, and that their transfer did not carry a risk of expulsion or return from Nauru or PNG to any place where their life or freedom would be threatened (refoulement).93 Despite UNHCR guidance on the safeguards that should have been in place prior to any transfers being effected, neither Nauru nor PNG had a functioning RSD system when the first asylum seekers were transferred there in September and November 2012 respectively, nor was it clear how such systems would be developed. In the haste of concluding the 2012 agreements, the fundamental question of who would perform RSD in each receiving State was left open. Both Nauru and PNG assured Australia that they would ‘make an assessment, or permit an assessment to be made’ as to whether asylum seekers satisfied the definition of a ‘refugee’ in article 1A of the Refugee Convention (as amended by its Protocol).94 However, while the documents tabled in the Australian Parliament to support the designation of PNG as a regional processing country stated that RSD would be performed ‘under PNG law’,95 they did not clarify who would perform assessments. By contrast, the documents tabled to support the designation of Nauru stated that Nauru had ‘assured Australia that it will permit Australian officials’ to make the relevant assessments, but made no provision for the governing law.96 This early uncertainty about who would perform RSD, the State on whose behalf they would do so, and the law to be applied, continued as a combination of Australian, Nauruan, and PNG officials began to perform various tasks associated with RSD from late 2012. The passage of new legislation in Nauru and PNG eventually clarified that it was the laws of those States that would govern RSD, but the respective contributions of each State to these processes were never formally agreed. Ultimately, despite Australia’s repeated assertions that RSD was solely a matter for each regional processing country,97 the reality proved more complex. 3.1 RSD in Nauru Nauru acceded to the Refugee Convention and its Protocol on 28 June 2011, but did not have any legislative or regulatory framework for the performance of RSD prior to the reintroduction of offshore processing in 2012. An amendment to the Nauruan Immigration Regulations in September 2012 provided for asylum seekers transferred from Australia to be granted visas pending determination of their refugee status.98 However, it reflected the ongoing ambiguity about who would be making these determinations by defining RSD as ‘a determination by or on behalf of the Republic [of Nauru] or the Commonwealth of Australia as to whether a person is or is not a refugee’.99 Greater clarity emerged in October 2012 with the enactment of the Refugees Convention Act 2012 (Nr) (Refugees Convention Act), which established a process for RSD, a Refugee Status Review Tribunal (Tribunal) to undertake merits review of negative decisions, and grounds for a person not recognized as a refugee after merits review to appeal to the Supreme Court of Nauru on a point of law. According to the Act, applications for refugee status and complementary protection100 were to be decided by the Nauruan Secretary for Justice and Border Control (Secretary).101 Despite the formal establishment of this legal framework, Nauru continued to lack the expertise and capacity required to perform RSD. Following a visit in December 2012, UNHCR observed that ‘a great deal of preparatory work needs to be done before it can be concluded that a functional, fair and effective system for refugee status determination is in place’.102 It also stated that: Delays in commencement of substantive processing arrangements for asylum seekers may be inconsistent with the primary and, arguably, sole purpose of transfer to [Nauru], namely, to undertake refugee processing in a fair, humane, expeditious and timely way.103 In the weeks before UNHCR’s visit, three Australian immigration officials ‘seconded’ to the Nauruan government had begun to conduct ‘transferee interviews’ to collect ‘preliminary registration information’.104 While it was anticipated that Nauruan officials would begin to ‘participate’ in these interviews, UNHCR observed at the time of its visit that ‘[t]he Government of Nauru is not currently present at the RPC and has no direct involvement in the scheduling, notification and/or interviewing of the transferees (which is completed by Australian officials on behalf of Nauru)’.105 Asylum seekers expressed general confusion about who was responsible for processing, which was compounded by a ‘conflation of procedures’ whereby information previously collected from asylum seekers by Australian officials was presented to them for clarification in Nauru, and they were instructed to submit any additional documentation to an Australian Immigration Department email address.106 The Australian officials seconded to Nauru began processing claims in March 2013, and by July ‘several hundreds of RSD recommendations were in the process of being finalized’.107 However, no asylum seeker transferred to Nauru as part of the first cohort ever completed the RSD process there. Following the Australian change of policy in July 2013,108 every person who had been transferred to Nauru (and PNG) began to be brought back to Australia to await re-processing under the ‘fast track’ system (see part 3.3). All asylum seekers arriving in Australia on or after 19 July 2013 and transferred to Nauru were processed under the 2013 Nauru MOU. Like its predecessor, this agreement left open the question of which State would be responsible for RSD, with Nauru again committing simply to ‘make an assessment, or permit an assessment to be made’ of whether an asylum seeker was a refugee.109 Preliminary interviews and RSD slowly recommenced in Nauru for the second cohort of transferred asylum seekers. Asylum seekers received assistance in preparing their claims and navigating the process from immigration lawyers and migration agents employed by an Australian law firm, Craddock Murray Neumann Lawyers, who were contracted by the Australian government to acts as Claims Assistance Providers (CAPs).110 Determinations were made by the Secretary on the basis of recommendations by Nauruan Refugee Status Determination Officers (RSDOs), who received technical training and mentoring from experienced Australian immigration officials in Nauru and Australia.111 Despite this guidance and training, however, UNHCR’s assessment in November 2013 concluded that ‘the current expertise and experience of the Nauruan officials is not at a level where they are able to conduct fair and accurate assessments of refugee claims without substantial input from Australian officials’.112 Accordingly, UNHCR deemed it ‘essential that experienced decision makers continue to provide close mentoring, supervision and support to ensure the fairness and accuracy of assessments, and overall quality control and assurance’.113 As RSD progressed, the issue of merits and judicial review of negative decisions arose. Merits review was conducted by the Tribunal, the members of which included Australian lawyers with extensive experience on comparable Australian tribunals114 who were appointed by the Nauruan Cabinet in consultation with the Chief Justice.115 It is not clear what role (if any) Australian government officials played in the operation of the Tribunal, although advertisements for the positions of Tribunal Registrar and Assistant Registrar specified that candidates should be able to liaise with Australian immigration officials, including on ‘registry/administrative matters’.116 If the Tribunal affirmed a negative decision, asylum seekers could appeal to the Supreme Court of Nauru,117 and from there to the High Court of Australia (although this avenue of appeal was closed off from March 2018).118 3.2 RSD in PNG PNG, like Nauru, did not have a formal RSD process when the first asylum seekers were transferred from Australia in November 2012. Following its accession to the Refugee Convention and its 1967 Protocol in 1986, PNG amended its Migration Act 1978 (PNG) (PNG Migration Act) in 1989 to provide a minimum framework for RSD.119 However, it did not transpose the definition of a ‘refugee’ from the Refugee Convention into PNG law. Instead, section 15A simply provided that the relevant Minister ‘may determine a non-citizen to be a refugee for the purposes of this Act’, with ‘refugee’ defined as ‘a non-citizen (a) permitted to remain in Papua New Guinea pending his settlement elsewhere; or (b) determined by the Minister to be a refugee’. No procedural or substantive guidance was given on how a determination should be made, and according to the Australian Immigration Department ‘the extent to which the definition of “refugee” as contained in the Refugees [sic] Convention is incorporated into the Minister’s decision is a matter for the Minister’.120 For at least the first five months after asylum seekers began being transferred to PNG from Australia, this limited provision constituted the entirety of the domestic law governing RSD in PNG. Following a visit to the Manus RPC during this early period, UNHCR expressed concern about both the lack of an adequate domestic legal framework and the fact that there were ‘no experienced officials in the Government of PNG able to undertake the RSD on the scale and complexity of cases envisaged under the transfer arrangements’.121 In January 2013, PNG officials confirmed that regulations were being drafted to establish RSD procedures, however no clear timeframes were given for their finalization or the commencement of RSD.122 It was also unclear who would perform RSD once a process was established. The Australian Immigration Department intended to ‘send two officials to the Centre in the near future to begin conducting initial interviews with asylum-seekers, with PNG officials attending the interviews for professional development purposes’.123 Overall, however, UNHCR observed there to be ‘significant and troubling lacuna in the legal arrangements that would be required to implement the provisions of the MOU and transfer arrangements and which are needed to ensure compliance with applicable international law and protection standards’.124 Over the following months, PNG made some progress towards establishing a legal framework for the processing of claims. However, amendments to PNG’s migration legislation in April 2013 fell short of meeting the country’s obligations under international law.125 They provided no legislative protection against refoulement, nor did they translate PNG’s complementary protection obligations into domestic law.126 They provided that the Minister ‘may’ (rather than ‘must’) determine a person transferred under the 2012 PNG MOU and entitled to protection under the Refugee Convention to be a refugee. They also established eight grounds for exclusion from refugee status going beyond the exhaustive exclusion clauses in the Refuge Convention.127 As UNHCR observed, these amendments ‘reinforce[d] differential treatment of asylum-seekers depending on manner of arrival, which could amount to discrimination’, and ‘[did] not provide for adequate procedural safeguards, such as independent merits review of first instance decisions’.128 Finally, and most critically, these amendments became ‘redundant’129 before any claims had been determined, because they applied only to people transferred to PNG under the 2012 PNG MOU, which was superseded by the RRA and the 2013 PNG MOU in July 2013. While this general issue of who the amendments applied to was eventually resolved in a subsequent amendment in April 2014 (when the definition of a ‘refugee’ was updated to apply to people transferred from Australia under the RRA and extended to include asylum seekers in PNG more generally),130 the balance of these legal deficiencies remained unaddressed. Separate from the issue of the legal framework for RSD, the lack of PNG decision-making capacity persisted. By June 2013, the government of PNG had recruited officials to undertake RSD, who received initial training in Australia from UNHCR as part of the organization’s ‘broader capacity-building activities in the Pacific region’.131 Subsequent to this training, the Australian Immigration Department’s involvement with RSD in PNG was expected to be twofold: some Australian immigration officers would ‘mentor’ PNG Immigration & Citizenship Service Authority (PNGICSA) officers performing RSD for a period of six months, while others would be ‘seconded’ to the PNG government to increase its decision-making capacity.132 UNHCR welcomed these efforts, but also cautioned that: it will take a period of at least six months before PNG officials are able to undertake RSD with any degree of self-sufficiency and that – even then – some ‘quality oversight’ mechanism could usefully be established, including ongoing mentoring support from the Australian Government.133 RSD finally commenced in PNG on 8 July 2013,134 but did not progress very far before Prime Minister Kevin Rudd announced the new arrangements with PNG 11 days later, and asylum seekers in PNG began to be transferred back to Australia. As the second cohort of asylum seekers began to arrive in PNG in late 2013, there remained a critical lack of capacity to make decisions on asylum claims. PNGICSA had started to assess claims ‘with assistance’ from the Australian Immigration Department,135 however PNG had only recruited five RSD officers, of whom just two or three were available at any one time.136 Although the Australian mentoring programme had continued, there was only one experienced Australian decision maker on Manus Island by the time of UNHCR’s visit in October.137 Additional PNGICSA officers were being recruited, but they would require at least a further six months of training before being able to undertake RSD independently of Australian support. UNHCR assessed that the complexity of the cases PNG decision makers were likely to face demanded ‘a high level of skill, experience and expertise by decision makers’, meaning that adequate mentoring and quality assurance by Australian immigration officers would be required for the foreseeable future.138 Immigration lawyers and migration agents employed by Australian firm Playfair Visa and Migration Services were contracted by the Australian government to act as CAPs on Manus Island (performing substantially the same role as Craddock Murray Neumann staff on Nauru). However, confusion and frustration over the apparent lack of RSD progress continued to cause tensions within the Manus RPC. When the PNG National Executive Council did finally give approval for the PNG Minister for Foreign Affairs and Immigration to start making final refugee status decisions in November 2014,139 a new set of problems arose due to uncertainty about the options for review or appeal of negative decisions. PNG made various statements suggesting that an independent review panel would be established, comprised either of ‘an officer from the Department of Justice and an officer from the Attorney-General’s Department’,140 or ‘an independent panel of eminent Papua New Guinean and international lawyers’.141 Administrative Arrangements concluded between Australia and PNG in 2013 also envisioned a merits review panel142 and, in 2014, the Australian Immigration Department indicated that a ‘Refugee Assessment Review Panel’ had been set up to ‘review the merits of an initial refugee assessment, and provide [a] recommendation for refugee determination to the PNG Minister for Foreign Affairs and Citizenship prior to his making of a refugee determination under PNG law’.143 Despite these statements, however, such a panel was not established under the PNG Migration Act, and limited information was made public about its creation, functions, and composition. It was similarly unclear what opportunities, if any, existed for judicial review. 3.3 ‘Fast track’ processing in Australia As set out in part 2, asylum seekers who arrived in Australia by boat after the reintroduction of offshore processing in 2012 were barred from applying for visas in Australia unless the Minister decided that it would be ‘in the public interest’ to allow them to do so.144 Yet those who were not transferred offshore did not have access to the Nauruan or PNG procedures either. By late 2014, this approach had caused the number of asylum seekers who were in Australia but not being processed to swell to around 30,000 people. This group, known as the ‘legacy caseload’, comprised four types of asylum seekers: (i) those who had arrived after 13 August 2012, were transferred offshore, and were brought back to Australia after the change in policy in July 2013; (ii) those who had arrived after 13 August 2012, and had never been transferred offshore as part of the first cohort; (iii) those who had arrived after 19 July 2013, should have been subject to transfer to Nauru and PNG, but had not yet been sent; and (iv) a small group of exceptional cases, who had arrived in Australia after 19 July 2013 and been transferred offshore as part of the second cohort, but then returned to Australia as ‘transitory persons’ for an apparently temporary purpose (such as to give birth).145 While the Minister could have chosen to ‘lift the bar’ to allow these asylum seekers to be processed under Australian RSD procedures at any time, instead they were made to wait in legal limbo as the Australian government established a new process specifically for them. Under this new ‘fast track’ process, introduced in December 2014, any person who received a negative first-instance decision was only eligible for a limited form of merits review. This review was carried out by a new statutory body called the Immigration Assessment Authority, which provided significantly fewer safeguards for procedural fairness than the ordinary merits review process for other asylum seekers.146 Moreover, even if asylum seekers were determined to be in need of international protection upon review, they would only become eligible to apply for one of two temporary visas.147 As such, this system suffered the dual problems of being compromised in its procedural fairness, and failing to provide a durable solution for anyone found to be in need of international protection. 4. DURABLE SOLUTIONS The Refugee Convention does not confer on States a specific duty to find durable solutions for people in need of international protection (although States parties do commit ‘as far as possible [to] facilitate the assimilation and naturalization of refugees’148). Nor does it explicitly prohibit States from entering into agreements for the transfer of asylum seekers and refugees. However, when consulted about the proposed reintroduction of offshore processing in 2012, the UN High Commissioner for Refugees affirmed that general practice for States parties to the Refugee Convention is for them to process asylum claims in their own territories. According to UNHCR guidance, any arrangement diverging from this general practice, particularly one involving the transfer of people to third countries, must guarantee progressive access to Refugee Convention rights and timely access to durable solutions for every person found to be in need of international protection (as well as timely and appropriate outcomes for those who are not).149 Similarly, the Michigan Guidelines propose that a sending State purporting to rely on a ‘protection elsewhere’ policy, such as offshore processing, must ‘inform itself of all facts and decisions relevant to the availability of protection in the receiving state’ and make ‘a good faith empirical assessment’ that transferred refugees will enjoy in practice the rights set out in articles 2–34 of the Refugee Convention.150 Despite these statements of principle, no clear agreement on the provision of durable solutions was ever articulated (either in the formal arrangements between Australia, Nauru, and PNG, or otherwise) and transfers continued, despite reports that the relevant standard of protection would not be available for refugees in either receiving country. UNHCR repeatedly called on Australia to secure long-term solutions for all refugees transferred offshore (as well as for those who had been brought back to Australia for medical or other reasons).151 However, the lack of clarity on this aspect of the legal framework underpinning offshore processing led to enduring confusion and debate about where responsibility for ensuring access to appropriate and timely outcomes lay. The result, in turn, was many years of protracted delay and hardship for people determined to be in need of international protection, and contradictory statements about the process from the States involved. 4.1 ‘No advantage’ and the bar on return and settlement in Australia Uncertainty about when and where people recognized as refugees would be able to settle and rebuild their lives was a critical issue in the offshore processing arrangements from their inception. In 2012, the Expert Panel on Asylum Seekers had recommended that Australia adopt a ‘no advantage’ approach to refugee processing. The idea of disincentivizing irregular migration by removing any ‘unfair advantage’ asylum seekers arriving by boat might receive over those who waited elsewhere to be resettled, or who migrated to Australia through other established migration pathways, was not new,152 but it took distinct shape in the Expert Panel’s report, which stated: The single most important priority in preventing people from risking their lives on dangerous maritime voyages is to recalibrate Australian policy settings to achieve an outcome that asylum seekers will not be advantaged if they pay people smugglers to attempt dangerous irregular entry into Australia instead of pursuing regular migration pathways and international protection arrangements as close as possible to their country of origin.153 This recalibration was to be achieved, in part, by discouraging irregular migration ‘by establishing a clear “no advantage” principle whereby asylum seekers gain no benefit by choosing not to seek protection through established mechanisms’.154 While this recommendation was endorsed by the Gillard government, the specifics of how the ‘no advantage’ policy would be implemented in practice were never made clear. Paris Aristotle, a member of the Expert Panel, suggested that it would not involve delaying refugees’ access to durable solutions on the basis of ‘a mathematical formula about length of time only’.155 Instead, both the Expert Panel and the Australian Immigration Minister advised that the rate at which refugees would be moved back to Australia or resettled elsewhere would be determined according to the same processes, determination criteria, and timeframes that would have been applied if their cases had been considered for resettlement by UNHCR in countries of first asylum.156 No further information was provided about how the Australian government intended to identify standard benchmarks for resettlement in the region.157 Prior to the designation of Nauru and PNG as regional processing countries, the UN High Commissioner for Refugees expressed concern about the practical implications of the Australian government’s approach, and urged it to give ‘careful consideration’ to the issue of timely durable solutions. He wrote: The time it takes for resettlement referrals by UNHCR in South-East Asia or elsewhere may not be a suitable comparator for the period that a Convention State whose protection obligations are engaged should use. Moreover, it will be difficult to identify such a period with any accuracy, given that there is no ‘average’ time for resettlement. UNHCR seeks to resettle on the basis of need and specific categories of vulnerability not on the basis of a ‘time spent’ formulation. Finally, the ‘no advantage’ test appears to be based on the longer term aspiration that there are, in fact, effective ‘regional processing arrangements’ in place. We share this aspiration. However, for the moment, such regional arrangements are very much at their early conceptualization.158 Similar concerns about the workability of the ‘no advantage’ policy, and the possibility that it might conflict with Australia’s obligations under the Refugee Convention, were raised by advocates and practitioners in the field.159 Notwithstanding these concerns, Australia proceeded with the implementation of offshore processing, leaving the issue of durable solutions unresolved. The 2012 Nauru MOU and 2012 PNG MOU shed no further light on the ‘no advantage’ policy, and indeed raised the further question of how Australia intended to enforce this aspect of its domestic immigration policy in the context of bilateral arrangements with two other sovereign States. Under the 2012 agreements, Australia undertook to ‘make all efforts’ to ensure that all asylum seekers transferred to Nauru and PNG departed ‘within as short a time as is reasonably necessary’ for the implementation of the agreements.160 However, the agreements made no provision for how ‘reasonable necessity’ would be determined. Moreover, Australia made these undertakings ‘bearing in mind the objectives set out in the Preamble and Clause 1’ of each agreement, which stated that the arrangements were intended to serve as a ‘disincentive’ for irregular migration and ‘the need to ensure, so far as is possible, that no benefit is gained through circumventing regular migration arrangements’. Thus, in their terms, the 2012 agreements contained an unreconciled tension between Australia’s commitment to remove people from Nauru and PNG within as short a time as ‘reasonably necessary’, and the implementation of its ‘no advantage’ policy, which could involve very lengthy, if not indefinite, delays. Neither Nauru nor PNG offered any greater understanding of how the Australian policy would be implemented in their countries. The Nauruan Minister for Foreign Affairs and Trade at the time that the 2012 Nauru MOU was signed later stated: The ‘no advantage’ policy is an Australian government policy. It has not been a policy that has been discussed as a joint policy between the two governments. In fact, I don’t recall any discussions specially about that approach with us as a government. I really don’t have a great understanding of what is meant by that term. We have an understanding of what we believe the process will entail, and that’s the extent of it.161 The Nauruan Minister for Justice affirmed this position.162 In a case concerning the detention of asylum seekers in Nauru in June 2013, Justice von Doussa (an Australian judge sitting as a justice of the Supreme Court of Nauru) also questioned whether the Nauruan government had appreciated, at the time the 2012 Nauru MOU was concluded, that its terms could have been construed to mean that the timing of the removal of refugees from Nauru would be subject to the ‘no advantage’ policy. Von Doussa J concluded that ‘perhaps it did not’,163 noting that the Nauruan regulations, made on the day the first asylum seekers arrived in September 2012, stated simply that ‘[t]he terms of the arrangement are that the Commonwealth of Australia will take responsibility for the resettlement or removal of each person on completion of the processing’.164 Neither these regulations, nor the subsequent Nauruan legislation establishing more comprehensive RSD procedures, provided any further insight into how the ‘no advantage’ policy would operate in practice.165 The position of the PNG government with respect to Australia’s ‘no advantage’ policy was never articulated as clearly as in Nauru. However, public statements by Prime Minister Peter O’Neill indicated that he expected asylum seekers to be processed as quickly as possible and not to be on Manus Island ‘too long’.166 This expectation was echoed by Ron Knight, MP for Manus Island. In response to the Australian Immigration Minister’s suggestion that refugees subject to the ‘no advantage’ policy might wait five years to be brought back to Australia or resettled elsewhere,167 Knight compared spending this long in the Manus RPC to ‘a jail sentence’ and said ‘anybody would go stir crazy for five years there and I think that’s wrong’.168 PNG law and policy at the time were silent on the issue of durable solutions, and made no reference to Australia’s ‘no advantage’ policy. By July 2013, Australia and PNG acknowledged that ‘a final destination for proven refugees for permanent resettlement’ remained ‘the missing element’ in the arrangements between them, and put forward the Regional Resettlement Arrangement as the solution to this gap.169 The ‘no advantage’ policy was abandoned. In its place, offshore processing in PNG would continue for asylum seekers arriving in Australia by sea, but from that day forward new arrivals determined to be refugees would also be required to integrate locally in PNG (inaccurately called ‘resettlement’), and/or ‘in any other participating regional, including Pacific Island, states’.170 Specifically, PNG undertook ‘for an initial twelve month period to accept unauthorised maritime arrivals for processing and, if successful in their application for refugee status, resettlement [sic]’, with the arrangement being subject to review after this period on an annual basis through the Australia–Papua New Guinea Ministerial Forum.171 Under the 2013 PNG MOU, PNG also undertook ‘to enable Transferees who enter Papua New Guinea under this MOU who it determines are refugees to settle in Papua New Guinea’.172 Australia agreed to provide support to any refugees who settled locally in PNG or another participating State, assist PNG in returning any asylum seeker or refugee who wished to be repatriated, and bear the full cost of implementing the RRA and the 2013 PNG MOU.173 There were also reports that Australia pledged A$430 million in additional aid and infrastructure to PNG as part of the agreement.174 Nauru’s commitments under the 2013 Nauru MOU were more conditional. It undertook ‘to enable Transferees who it determines are in need of international protection to settle in Nauru, subject to agreement between Participants on arrangements and numbers’, and Australia agreed to assist Nauru to resettle all other people in need of international protection elsewhere.175 Australia agreed to assist Nauru to repatriate or otherwise remove all people found not to be in need of international protection and, as with PNG, this agreement was subject to annual review through the Australia–Nauru Ministerial Forum.176 Australia agreed to bear ‘all costs incurred under and incidental to’ the 2013 Nauru MOU.177 No time or monetary limits were placed on Australia’s financing of the local integration of refugees in Nauru and PNG, nor did either of those States commit to developing their own sustainable and adequately resourced programmes for integrating refugees transferred from Australia. The change in Australian policy from ‘no advantage’ to the bar on return and settlement in Australia was announced before any asylum seekers completed RSD in either Nauru or PNG. This change averted the various problems that might have arisen had the time come to implement the ‘no advantage’ policy for the refugees transferred offshore as part of the first cohort between August 2012 and July 2013. However, the new policy created its own problems. Asylum seekers in the first cohort, who were brought back to Australia to be processed under the ‘fast track’ system, would potentially never be able to access permanent protection in Australia if found to be refugees. Meanwhile, as the following sections explain, the new policy of settling refugees in Nauru and PNG also failed to provide the ‘missing element’ of a durable solution. Neither country proved viable as a long-term option for the majority of people determined to be in need of international protection. The questions of where else they might go, and the extent to which Australia had ongoing protection obligations towards them, were left open. 4.2 Local integration in Nauru The prospect of refugees attempting to integrate locally in Nauru raised concerns from the outset. In November 2013, UNHCR had noted that it was ‘not clear from the formal arrangements whether Nauru is committed, or even capable of, offering long term and durable solutions’ to refugees. It warned that ‘[t]he current socio-economic and demographic identity in Nauru makes it very unlikely that recognized refugees will be able to find a sustainable, long term solution in Nauru itself’.178 As to the State which should have taken charge of providing durable solutions, UNHCR stated: it is clear that Australia has retained a high degree of control and direction in almost all aspects of the bilateral transfer arrangements. The Government of Australia funds the refugee status determination process which takes place in Nauru, seconds Australian immigration officials to undertake the processing and effectively controls most operational management issues. Logically, therefore, Australia’s responsibility extends also to finding safe and timely solutions for refugees found to be in need of protection.179 UNHCR expressed doubt about the likelihood of Australia finding appropriate resettlement options for refugees elsewhere, and urged the two States to develop ‘a clear strategy and plan … setting out how long term solutions will be implemented in practice’.180 Until appropriate and timely resettlement could be secured, UNHCR advised that ‘the legal responsibility for [refugees’] protection under the 1951 Refugee Convention remains with both Contracting States’.181 The first positive refugee status determinations were handed down in Nauru in May 2014, after which time refugees began to move out of the RPC into various residential sites around the island.182 The Australian Immigration Minister announced that ‘a settlement package will be provided commensurate with living standards in Nauru’, including ‘language and vocational training, connection with local employment, orientation, initial accommodation and a living allowance as appropriate’.183 According to him, ‘[t]he intention is to have resettled [sic] refugees standing on their own feet within 12 months’.184 Nauru amended its Immigration Regulations to provide that the visas held by people determined to be in need of international protection would automatically become ‘temporary settlement visas’, valid for six months, renewable upon payment of a fee by Australia of A$3,000 per visa per month, and liable to cancellation by the relevant Nauruan Minister at any time.185 Formally, refugees holding a temporary settlement visa were entitled to work and apply for business licences, to apply for refugee travel documents, and to leave and re-enter Nauru. While Nauru had no formal family reunification programme, temporary settlement visa holders could apply for a ‘dependant’s visa’ to be granted to certain family members abroad.186 Health care and settlement support were provided by various service providers pursuant to contracts with Australia.187 Refugee children could attend local Nauruan schools, and refugees were permitted to enrol at the University of the South Pacific.188 Australia provided a weekly financial allowance, and a number of refugees secured employment or started their own businesses. Despite these basic services, in November 2016, UNHCR warned that ‘settlement on Nauru is not an option, even on a temporary basis’, noting that ‘[t]he health, educational, child protection and welfare, social and vocational needs of the refugee population on Nauru grossly exceed the capacity of Nauruan services’ and that ‘[a]ttempting to resettle refugees in Nauru for any longer than a short duration carries considerable risk of harm to the refugees with regard to unmet health, educational and other needs’.189 UNHCR expressed particular concern about the residential sites allocated to refugees around Nauru, noting that: the community-based ‘settlement’ areas to which refugees have been moved are established in a way that does not allow for meaningful engagement with or local integration into the community, creating ‘ghetto-like’ situations. While the accommodation meets basic needs for shelter, it hinders integration by projecting a continuation of the detention environment and separation from the local community.190 As with the provision of other services, the issue of refugee housing implicated both Australian and Nauruan authorities and contractors. Disputes about refugee housing at times involved a combination of staff from Connect Settlement Services (Connect) (the Australian service provider contracted to provide settlement support in Nauru), ABF officials, and the Nauruan police and judiciary.191 Finally, the greatest indicator of the arrangements in Nauru falling short of a durable solution was the fact that Nauru itself considered them a temporary measure that would not necessarily extend for the duration of any risk faced by people recognized as refugees or as entitled to complementary protection. In April 2014, immediately prior to the first positive refugee status determinations being handed down, the Nauruan government advised that any person found to be a refugee or entitled to complementary protection ‘will be temporarily settled in Nauru’ for a period of up to five years.192 Asylum seekers were advised that resettlement countries were ‘yet to be determined’ but that Australia was not an option.193 Similar statements were made over the course of the following years. In May 2016, the Nauruan Minister for Multicultural Affairs, David Adeang, informed asylum seekers and refugees that ‘future long term and permanent settlement options are actively being considered and planned for you’, and urged them, in the meantime, to make the most of their ‘temporary stay’ in Nauru.194 In September 2016, at the same time as the Australian Prime Minister announced that ‘of course [refugees] have the opportunity to settle … in Nauru’,195 Adeang invited other countries ‘to assist in finding durable resettlement solutions for our refugees’ and ‘to assist us find permanent homes for the 924 refugee men, women and children currently on Nauru’.196 In 2017, Nauruan legislation establishing a body to enter into commercial arrangements in relation to the 2013 Nauru MOU on behalf of the Nauruan government referred to the ‘temporary settlement’ of refugees in Nauru.197 In 2018, the organization responsible for providing settlement services to refugees in Nauru, HOST International, described part of its work as equipping refugees with the skills and qualifications they would need ‘in their future settlement location’.198 The visas refugees held on Nauru throughout this time continued to be called ‘temporary settlement visas’, allowing refugees ‘to remain in Nauru pending the making of arrangements for [their] settlement in another country’.199 Thus, while it was expected that refugees might remain in Nauru for an extended period (Australian officials periodically discussed the possibility of 10- or even 20-year visas),200 at no point did Nauru commit to allowing all (or any) refugees to remain either permanently or for the duration of their ongoing protection needs. 4.3 Local integration in PNG The prospect of local integration in PNG raised similar concerns as in Nauru. In October 2012, prior to any transfers taking place, the UN High Commissioner for Refugees flagged a number of issues relating to the quality of protection asylum seekers and refugees could expect to receive there. He wrote: At present, Papua New Guinea does not provide any resources for the care, maintenance, support or protection of non-Melanesian asylum seekers and refugees. Regularization of legal status for both Melanesian and non-Melanesian refugees is extremely limited, and there are very limited opportunities for sustainable local integration for refugees from outside the region. ... The level of human insecurity and extremely high cost of living in Port Moresby (where most of the populations reside) make life very difficult for asylum-seekers and refugees and render local integration almost impossible.201 Indeed, as UNHCR later added, prior to the reintroduction of offshore processing it had ‘been obliged to remove “non-Melanesian” refugees for resettlement to third countries, including Australia, precisely because of severe limitations of finding safe and effective durable solutions in PNG itself’.202 UNHCR reiterated its concerns about the ‘formidable challenges and protection questions’ that would arise from trying to integrate refugees into PNG society after the signing of the RRA and 2013 PNG MOU.203 Rimbink Pato, the PNG Minister of Foreign Affairs and Immigration, himself acknowledged that there was ‘no doubt that the resettlement [sic] of refugees from third countries will present numerous challenges’, being ‘an area of public policy that is entirely new to PNG’.204 In similar terms to its advice about Nauru, UNHCR advised that Australia and PNG maintained ‘a shared legal responsibility … to ensure appropriate legal standards are met for individuals determined to be refugees under the 1951 Refugee Convention’, including ‘access to sustainable durable solutions in Australia if other safe and sustainable solutions cannot be found elsewhere and within a reasonable timeframe’.205 In the meantime, it deemed both States jointly responsible for providing appropriate settlement services and guaranteeing respect for refugees’ rights.206 The first men were recognized as refugees and permitted to move out of the Manus RPC in January 2015, and between then and October 2017 approximately 100 men moved into the East Lorengau Refugee Transit Centre (ELRTC) on Manus Island, which was built and funded by Australia.207 In 2013, Rimbink Pato had announced that refugees living in the community would be provided with ‘a range of support including assistance with housing, employment and language training to help them to re-establish their lives in PNG to be fully funded by the Government of Australia’.208 Australian Prime Minister Rudd had guaranteed that Australia would provide ‘comprehensive settlement services to ensure that these refugees can live safely and with security and in time, prosperity, within PNG’.209 However, in practice the provision of settlement services to refugees in PNG was delayed and complicated by the fact that the PNG government had still not approved its draft national settlement policy by the time the first men moved to the ELRTC. While the men received language lessons, identity documents, refugee entry permits, food packages, and a small weekly allowance, they were not permitted to work or travel elsewhere in PNG.210 Indeed, when one refugee notified PNGICSA of plans to fly to the capital Port Moresby for job interviews, he was advised that ‘there is currently no government sanctioned arrangement in place for your integration and settlement in PNG’, and that he would ‘not be entitled to any support arrangements’ if he chose to leave the ELRTC before the policy was approved.211 Other refugees were prevented from finding employment on Manus Island.212 PNG’s National Refugee Policy was finally endorsed by the Cabinet in October 2015.213 In announcing the new policy, Rimbink Pato said it ‘now enables [PNGICSA] to enter into arrangements with Australia … for processing asylum seeker claims and where appropriate settlement of refugees’ (raising questions about the basis on which PNG had entered into the 2013 PNG MOU arrangements with Australia more than two years earlier).214 The policy itself reaffirmed that PNG would ‘[make] the final determination of who is permitted to be processed and settled here’, leaving open the possibility of resettlement in third countries and stating that ‘[d]urable solutions for those not eligible to remain in Papua New Guinea will be arranged with relevant parties’.215 It identified self-sufficiency as ‘the most important objective’ of PNG’s support for refugees, stating that ‘[r]efugees must become able to support themselves’.216 The policy authorized refugees to work and start businesses if they had the means to do so.217 It did not establish a formal family reunification procedure, but did provide that ‘[o]nce refugees have successfully established themselves and become self-sufficient they are permitted to sponsor their families to join them through regular migration processes’.218 While PNG maintained its reservation to article 34 of the Refugee Convention regarding the naturalization of refugees, its national policy affirmed that refugees would be permitted to apply for PNG citizenship after eight years of continuous residence, if they met the requirements set out in the Constitution and other relevant legislation.219 Despite the National Refugee Policy formally conferring these rights and opportunities on refugees living in PNG, by 2018 Amnesty International observed that ‘this has not been the reality’.220 While some refugees did secure employment, most did not, and some of those who did subsequently returned to Manus Island and the ELRTC.221 For those who had not secured employment, their ability to travel elsewhere in the country was restricted.222 Refugees also faced restrictions on their ability to leave PNG. While the refugee entry permits they held were supposed to be ‘valid for multiple entries for an indefinite period’,223 there were reports in September 2016 that: the travel documents issued by PNG to refugees have proven inadequate to gain any visa to any other country. Many of the documents issued have been valid only for a month, after which refugees are left without a legal right to reside even in PNG.224 Moreover, there were ongoing concerns about how local integration in PNG would be funded in the long term, with Prime Minister O’Neill warning that his country did not have the resources to cover the relevant costs.225 Added to these challenges was the fact that the majority of the men determined to be refugees refused to leave the Manus RPC, citing fears for their safety if they moved into the community. Despite various efforts by Australian contractors and PNG officials to coerce them to move out of the RPC,226 by 31 October 2017 around 500 men who had received positive refugee status determinations were refusing to do so.227 On this date, Australia withdrew all funding, support services, service providers, and government personnel from the RPC, declared it ‘closed’, and handed the site back to the PNG Defence Force (on whose naval base the centre was located). The men remaining at the RPC at this time, whether recognized as refugees or not, were ordered to relocate to one of three residential sites that had been constructed by Australia at considerable cost228 (the ELRTC, West Lorengau Haus, and Hillside Haus), despite conflicting reports about whether these sites were in fact ready to receive them.229 After a stand-off lasting more than three weeks, they were forcibly removed from the RPC and relocated to these residential sites.230 The shift into the community only served to highlight the challenges of local integration for refugees on Manus Island (and possibly in PNG more generally). The men remained dependent on the services and support provided by the Australian government.231 However, with Australia no longer coordinating the arrangements on the ground there was ‘a consistent and ongoing lack of clarity as to designated roles, as well as confusion among refugees, asylum-seekers and service providers alike’.232 The ongoing presence of the men in Lorengau, and the award of contracts to non-Manusian companies, provoked tensions with the local community, manifesting in incidents of violence and protests.233 These tensions, as well as other unaddressed linguistic, social, and cultural barriers, and ‘little to negligible’ employment prospects,234 continued to impede the integration of the men into Manusian society. Integration was equally difficult for those living elsewhere in PNG, due in large part to the fact that there were ‘no clear lines of responsibility for supporting refugees living in the community’.235 Cumulatively, these factors led UNHCR and other organizations to affirm that PNG was not a safe, sustainable, or viable option for the majority of the people transferred there from Australia.236 These difficulties were compounded by the apparent disconnect between Australia and PNG as to their respective responsibilities for finding durable solutions. Australia’s position was contradictory. While the Australian Immigration Department had long maintained that PNG alone was responsible for the men transferred there,237 the Australian Immigration Minister also compared the Australian taxpayer to a ‘landlord’ who ‘decided that we would build a new house for the tenants’ and ‘said that we wanted the tenants out of the old facility because we weren’t happy with that facility’.238 For his part, PNG Prime Minister O’Neill stated clearly in March 2016, ‘These people cannot remain in Manus forever. We need to make a determination where they should go, and take a firm decision on it. But it is entirely up to the Australian Government’.239 Upon the closure of the Manus RPC, the PNG Minister for Immigration and Border Security, Petrus Thomas, stated that his country had ‘completed its obligation’ under the agreement with Australia and that two groups of people remained: refugees who did not wish to remain in PNG, and non-refugees with no legal basis to remain in the country.240 He affirmed his country’s position: that as long as there is one individual from this arrangement that remains in PNG, Australia will continue to provide financial and other support to PNG to manage the persons transferred under the arrangement until the last person leaves or is independently resettled [sic] in PNG. … PNG has no obligation under the current arrangement to deal with these two cohorts and they remain the responsibility of Australia to pursue third country options and liaise with respective governments of the non-refugees for their voluntary or involuntary return. … PNG currently has no obligation under the current arrangement and Australia will continue to be responsible.241 This position aligned with that of UNHCR, which called on Australia to ‘live up to its responsibility and urgently find humane and appropriate solutions’ for the asylum seekers and refugees it had ‘abandoned’ on Manus Island, noting that ‘it is Australia’s responsibility in the first place … Australia is the country that created the situation by putting in place this offshore processing facility’.242 4.4 The Cambodia relocation agreement With long-term integration in Nauru and PNG not viable for the majority of people determined to be refugees in those countries, Australia looked for alternative resettlement options. On 26 September 2014, Australia signed an MOU and concluded operational guidelines with the Kingdom of Cambodia (together, the Cambodia agreement), in which Cambodia agreed to relocate a certain number of refugees from Nauru.243 The Australian Immigration Department later explained its involvement in reaching this agreement by stating: Australia undertook intergovernmentally through the agreement we have made with Nauru to assist that jurisdiction with eventual resettlement and/or removal of persons, depending on whether or not they were found to be refugees. That behoves us to undertake discussions, consultations and eventually negotiations with what are known as third country resettlement destinations.244 While Australia attempted to portray the Cambodia agreement as ‘a three-way arrangement’,245 it was in fact a bilateral agreement between Australia and Cambodia only. Under the agreement, the possibility of relocation to Cambodia was open to any person determined to be a refugee in Nauru who chose to accept an offer. However, decisions about the number and timing of relocations remained ‘subject to the consent of the Kingdom of Cambodia’.246 During the term of the Cambodia agreement (which expired in September 2018), only seven refugees relocated to Cambodia, of whom four subsequently returned to their countries of origin.247 Australia agreed to cover all costs relating to the arrangement. This included the cost of travel to Nauru by Cambodian officials to inform refugees about relocation, and of travel to Cambodia by refugees; costs associated with refugees’ settlement in Cambodia; and an unspecified amount of ‘additional development assistance’ for Cambodia to supplement Australia’s existing aid allocation for the country.248 Australia agreed to fund some settlement services for an initial period of 12 months, after which time ‘an assessment will be made on a case-by-case basis of any further need for settlement services’, and health insurance for five years from the date when each refugee left the temporary accommodation they were provided with on arrival.249 The budget for these services was estimated at up to A$15 million, paid by Australia ‘on performance’ (that is, depending on the number of people relocated and the costs accrued) either to the Cambodian government or directly to service providers.250 Australia committed an additional A$40 million over four years, as part of the Australian Department of Foreign Affairs and Trade’s Official Development Assistance (ODA) programme, for various forms of capacity-building and development assistance not directly related to refugee protection.251 After initial resistance to the agreement from asylum seekers and refugees,252 various forms of pressure and inducements were allegedly used, either by Australian government officials or service providers contracted by Australia, to encourage relocation from Nauru to Cambodia. Australian Immigration Department officials reportedly distributed letters to refugees on Nauru regarding relocation to Cambodia. Asylum seekers were also approached within the RPC with the promise of ‘fast-tracked’ positive RSD outcomes if they volunteered to go (although what power the Australian government might have had to offer such an outcome, given RSD was meant to be a Nauruan process, was unclear).253 Some service providers in Nauru claimed that Australian government officials had targeted vulnerable people within the RPC on Nauru as potential applicants and ‘essentially bullied them into signing expressions of interest to go to Cambodia’.254 Whether or not these allegations of pressure were true, a first group of four refugees was flown to Australia in May 2015 and held in an undisclosed location in Darwin. After initially claiming not to have been informed of the transfer, and that a final decision on the four cases was yet to be made, Cambodian government officials accepted the group and they were flown to Phnom Penh in June.255 Little information was made publicly available about the subsequent three transfers to Cambodia, or the circumstances in which four of the seven relocated refugees later chose to return to their countries of origin. Most settlement and integration services in Cambodia were provided by the International Organization for Migration (IOM), which was engaged to ‘provide settlement support … through a needs-based service delivery model tailored to individual circumstances’.256 In 2016, Australia engaged Connect, the same organization providing settlement support on Nauru at the time, to provide additional refugee settlement support in Cambodia, despite the fact that only one of the refugees relocated from Nauru was still there.257 No public explanation was given for this engagement. By the end of the agreement in 2018, the three relocated refugees left in Cambodia continued to rely on financial support from Australia and the assistance of its contracted service providers and other charities. While certain matters, such as the issuance of identity and travel documents and permits allowing refugees to work or operate a business, necessarily fell within the competence of the Cambodian government, others, such as family reunion, involved more complex arrangements. In November 2016, the Phnom Penh Post reported that Australia was pushing Cambodia to allow the families of three refugees, due to arrive from Nauru in the following month, to join them in the country. Tan Sovichea, Director of the Refugee Department within the Cambodian Ministry of the Interior, was reported to have said that the request was for visitation only and that, if the family members wanted to stay, they would need to apply as migrants, and that ‘the Australian government wants to arrange for them to meet their families here, but the Cambodian side has not discussed deeply on this’.258 Ultimately, these three refugees were not relocated to Cambodia. Family reunion also arose as an issue for at least one of the refugees already in Cambodia in 2018, who claimed that Australian officials had promised to reunite him with his family, apparently without having the authority to do so.259 Thus, while Nauru played little or no part in the relocation of refugees to Cambodia, the respective roles of Australia and Cambodia remained undefined and a source of tension. 4.5 The United States resettlement agreement On 13 November 2016, Australia announced that it had reached ‘a further third country resettlement agreement’ pursuant to which people found to be refugees in Nauru and PNG would be considered for resettlement in the United States (US). Unlike the Cambodia agreement, the terms of the US agreement were never made public. The Australian Immigration Minister refused to disclose the terms of the agreement, even to the Australian Parliament, claiming public interest immunity,260 and UNHCR also appeared not to have been made aware of its full details.261 However, according to a joint statement by the Prime Minister and Immigration Minister: US authorities will conduct their own assessment of refugees and decide which people are resettled in the US. Refugees will need to satisfy standard requirements for admission into the US, including passing health and security checks. This process will take time and the resettlement will be gradual.262 Priority would be given to the most vulnerable refugees (women, children, and families),263 and UNHCR would ‘endorse referrals made from Australia to the United States, on a one-off, good offices, humanitarian basis, in light of the acute humanitarian situation’.264 At the same time, UNHCR urged that ‘Australia must be part of the solution for refugees and asylum seekers who have sought its protection, and particularly those who have family ties to Australia or special needs’.265 Neither Nauru nor PNG were parties to the US agreement, and there was no indication that they had played an active role (or any role) in the negotiation of its terms. The US resettlement deal was negotiated with the Obama administration around the same time as various other initiatives, including President Barack Obama’s Leaders’ Summit on Refugees and the UN high-level summit to address large movements of refugees and migrants in September 2016. After these two meetings, the Australian government announced that it would ‘participate in the US-led program to resettle Central American refugees currently in a resettlement centre in Costa Rica’, with those resettlement places coming out of Australia’s existing resettlement programme.266 When the US resettlement deal was announced two months later, there was speculation it might have been linked to this earlier commitment. Indeed, in a leaked transcript of a phone conversation between Prime Minister Malcolm Turnbull and US President Donald Trump shortly after he took office, Prime Minister Turnbull was reported to have explained that the agreement between the two governments required Australia ‘to do a number of things’ for the US ‘in return’ for people being resettled from Nauru and PNG, and that: The obligation is for the United States to look and examine and take up to and only if they so choose – 1,250 to 2,000. Every individual is subject to your vetting. You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you. The obligation is to only go through the process.267 Prime Minister Turnbull spoke about Australia ‘hold[ing] up our end of the bargain’ and explained: ‘we are taking people from the previous administration that they were very keen on getting out of the United States. We will take more. We will take anyone that you want us to take. The only people that we do not take are people who come by boat’.268 In March 2017, the relationship between the Australian and US resettlement commitments was illuminated further by Anne Richard, the former Assistant Secretary of State for Population, Refugees and Migration in the US State Department, who was involved in preparing the US resettlement agreement. She confirmed that it had been put together following an approach by the Australian Embassy, and that the US had agreed to take ‘hundreds and hundreds’ of refugees from Nauru and PNG ‘in return for Australia doing more’, including both taking refugees from Costa Rica and ‘trying to take more refugees from, say, Africa, and also looking at families that have been split up under the Australian policy’.269 This explanation confirmed the nature of the US resettlement agreement as an Australian initiative that formed part of its broader diplomatic and strategic relationship with the US. Regardless of its nature, the US resettlement agreement began to be implemented in early 2017 when US officials travelled to Nauru and PNG to begin the process of vetting refugees who had registered for resettlement. The process involved pre-screening interviews, fingerprinting and gathering of other biometric data, second-stage interviews, and medical assessments.270 The first groups of refugees departed Nauru and Manus Island for the US shortly thereafter, in September 2017, followed by further groups in 2018.271 By May 2018, 249 refugees had been resettled to the US from Nauru and PNG.272 Vetting by US officials continued, but there was still no clear indication of how many refugees would be offered resettlement places, how long it would take to complete the process, how the agreement might be affected by the sharp reduction in places available in the US resettlement programme from 2017, or what options existed for those who did not wish, or were not accepted, to be resettled in the US. 4.6 Other third country resettlement options Finally, in addition to Cambodia and the US, Australia explored the possibility of other third country settlement options273 as it worked ‘to assist [Nauru and PNG to] find appropriate resettlement options for people found to be refugees’.274 Australian officials refused to be drawn on which countries were under consideration.275 Indeed, the Australian Immigration Minister refused to respond to a request from the Australian Senate to be informed of the countries with which Australia was negotiating resettlement agreements, claiming public interest immunity.276 Meanwhile, as the search for formal resettlement partners continued, three refugees were resettled in Canada through alternative channels. The first two, a father and son, received offers in late 2015 to join their wife and mother who had sought and been granted asylum in Canada.277 The third refugee flew to Canada from PNG in late 2017, after the family of a nurse who had previously worked on Manus Island formed a sponsorship group to bring him to Canada under its private sponsorship programme.278 These cases, although isolated, raised questions about whether private individuals could arrange resettlement opportunities independently of the Australian, Nauruan, and PNG governments, and, if so, what approval (if any) might be necessary from each of them. Similar questions about which State or States had authority to approve formal settlement opportunities arose in relation to an offer from New Zealand. In February 2013, Prime Minister Julia Gillard and New Zealand Prime Minister John Key had announced a new agreement under which New Zealand would resettle 150 refugees annually ‘from the Australian system’, including possibly from Nauru and PNG, starting in 2014 and on an ‘ongoing’ basis.279 The political Opposition in Australia criticized the proposal at the time, describing it as an arrangement that ‘barely scratches the surface’, and likened it to putting some ‘Kiwi sugar’ on the table for people smugglers.280 After the Opposition came to power in September 2013, prior to the anticipated start of the agreement, it chose not to proceed with resettlement in New Zealand. In April 2016, after the Supreme Court of PNG ruled the detention of men at the Manus RPC unconstitutional,281 New Zealand confirmed that its offer remained. However, Australia again rejected it on the basis that ‘settlement in a country like New Zealand would be used by the people smugglers as a marketing opportunity’.282 Given that Australia supported resettlement in the US, its rejection of a similar offer from New Zealand appeared to reflect concern about opening a ‘back door’ to Australia, whereby refugees resettled in New Zealand might eventually qualify for citizenship and so become eligible to enter Australia under the mutual special visa arrangements between the two countries for their citizens.283 Whatever the reasons for Australia’s reluctance to take up the New Zealand resettlement offer, it shed further light on the extent of Australian involvement in the process of finding durable solutions for people determined to be refugees in Nauru and PNG. In November 2017, in the context of the stand-off at the Manus RPC, New Zealand Prime Minister Jacinda Ardern restated her country’s offer, but Prime Minister Turnbull again turned it down, citing his wish to conclude the arrangements envisioned under the US resettlement agreement before considering other options.284 When asked if New Zealand could extend the offer to PNG directly, the Australian Immigration Minister acknowledged that those countries had the right to enter into bilateral arrangements as sovereign States, but warned that ‘they would have to think about their relationship with Australia or what impact that would have on [it]’.285 He noted that Australia had spent ‘hundreds of millions of dollars’ intercepting asylum seekers at sea, including some on boats that had allegedly been heading for New Zealand.286 Following these warnings, a spokesperson for the New Zealand government said that it was ‘up to Australia’ to accept the offer, adding: As [Prime Minister Ardern] has said, Australia holds all the critical information on the refugees in Manus Island so any take-up of refugees has to be organised with Australia’s assistance. The Papua New Guinea government also said this week that it was focused on working with Australia and that it would not be dealing directly with New Zealand.287 Despite UNHCR urging Australia to accept the offer,288 and motions in the Australian House of Representatives and Senate calling on the government to do the same,289 the Australian Prime Minister and Immigration Minister insisted ‘now is the wrong time to send people to New Zealand’.290 The Immigration Minister warned that the possibility of refugees becoming New Zealand citizens and eligible for special entry rights, which he described as ‘essentially a visa on arrival for people from New Zealand’,291 could derail the US resettlement arrangements and encourage more asylum seekers to try and reach Australia by sea.292 In August 2018, New Zealand Prime Minister Ardern affirmed that the offer remained, but that it had been refused by both Australia and Nauru.293 5. CONCLUSION The offshore processing arrangements maintained by Australia since 2012 are just one example of how States parties to the Refugee Convention purport to comply with their obligations while requiring asylum seekers to find protection elsewhere. Whether States transfer asylum seekers to third States through which they previously transited, to which they have some other link, or – as in the present case – to which they have no prior connection, international law imposes certain obligations on the transferring State, which may persist even after transfers have been effected. The most important of these obligations is respect for the principle of non-refoulement, whether the relevant harm might be faced in the receiving State directly, or in another place to which people might subsequently be expelled. Authoritative international guidance and commentary also identify certain additional protection safeguards and minimum standards that should be respected by the transferring State if it is to remove asylum seekers from its territory without breaching its own obligations. These include making a good faith empirical assessment that refugees will enjoy the relevant rights in receiving States, establishing credible mechanisms for ensuring receiving States’ compliance with the relevant standards of treatment on an ongoing basis, and ceasing any further transfers if the sending State has actual or constructive knowledge of significant violations of the Refugee Convention in the receiving States.294 Australia’s offshore processing arrangements have fallen, and continue to fall, short of these minimum standards in critical ways. Crucially, the failure to clarify the respective responsibilities of Australia and each receiving State in the written agreements governing transfer, the fact that transfers commenced before functioning RSD systems were in place in Nauru and PNG (and continued while serious deficiencies in the emerging systems were identified), and the ongoing failure to ensure timely access to appropriate outcomes for all transferees (whether refugees or not) and progressive access to the relevant Refugee Convention rights for those entitled to them, mean that the arrangements do not meet the requirements for a protection elsewhere policy that accords with international law. Given this protection deficit, which has been inherent in the arrangements since their inception, Australia should never have commenced transfers offshore in 2012. Having nevertheless done so, it should have ceased further transfers once it became evident that fair and efficient RSD systems were not forthcoming in either receiving State, and that there would be a lack of effective protection available to people determined to be refugees there. This conclusion is only affirmed by the extent of Australia’s active involvement in the arrangements on both sides of each transfer. As a result of this involvement, Australia not only had actual knowledge of the relevant circumstances in Nauru and PNG, it was largely (if not primarily) responsible for them. The Michigan Guidelines affirm that a sending State with actual knowledge of a failure to respect the requirements of the Refugee Convention by a receiving State is ‘disentitled from effecting any further transfers to that state under a protection elsewhere policy until and unless there is clear evidence that the breach has ceased’.295 Of greater relevance for the people remaining offshore in 2019, they also state that: If a receiving state fails to ensure that a transferred person who meets the requirements of Art. 1 of the Convention receives the benefit of Arts. 2–34 of the Convention, the sending state’s original obligations to that refugee are no longer satisfied by reliance on the transfer of protection responsibility. The sending state in such circumstances should facilitate the return and readmission of the refugee in question to its territory, and ensure respect for his or her rights there in line with the requirements of the Convention.296 This guidance is particularly relevant to the people who have been determined to be refugees in Nauru and PNG, and who should accordingly be readmitted to Australian territory (with the possible exception of those who have been accepted and will imminently depart for resettlement in the US). Asylum seekers with ongoing protection needs should also be considered for readmission to Australia, in light of UNHCR’s unambiguous position that ‘[n]either Papua New Guinea nor Nauru are appropriate places for local integration for the majority of refugees and asylum-seekers, particularly given their acute needs as a result of prolonged detention and harsh conditions’.297 The cases of a third group, those who have been determined not to be refugees and are at risk of deportation to their countries of origin,298 may also require careful reconsideration (to ensure appropriate RSD was performed) and, whatever the outcome, an appropriate solution to their displacement. Finally, if any future arrangements for third country transfers and the extraterritorial processing of asylum seekers are to be concluded, particularly those genuinely intended to enhance responsibility sharing and cooperation on refugee protection, they will require radically different legal and diplomatic arrangements for transfer, processing, and the provision of durable solutions if they are to comply with the relevant standards under international law. Footnotes * Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Sydney. 1 See Jane McAdam and Kate Purcell, ‘Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum’ (2008) 27 Australian Yearbook of International Law 87; Susan Kneebone, ‘The Pacific Plan: The Provision of Effective Protection’ (2006) 18 International Journal of Refugee Law 696; Savitri Taylor, ‘The Pacific Solution or a Pacific Nightmare: The Difference between Burden Shifting and Responsibility Sharing’ (2005) 6 Asian-Pacific Law and Policy Journal 1; Commonwealth of Australia, ‘Report of the Senate Select Committee on a Certain Maritime Incident’ (October 2002) 291–336. 2 Australian Government, ‘Report of the Expert Panel on Asylum Seekers’ (August 2012) 47. 3 Madeline Gleeson, ‘Transfer Tracker’ (Andrew & Renata Kaldor Centre for International Refugee Law, 2018) <http://www.kaldorcentre.unsw.edu.au/publication/transfer-tracker> accessed 5 September 2018. 4 Mandy Newton, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 18 February 2019) 115. 5 See eg Nikolas Feith Tan, ‘The Manus Island Regional Processing Centre: A Legal Taxonomy’ (2018) 20 European Journal of Migration and Law 427; Richard Harding, ‘Jurisprudential Sources for Establishing Standards of the Duty of Care in Offshore Immigration Detention Facilities’ (2018) 43 University of Western Australia Law Review 124; Patrick van Berlo, ‘The Protection of Asylum Seekers in Australian-Pacific Offshore Processing: The Legal Deficit of Human Rights in a Nodal Reality’ (2017) 17 Human Rights Law Review 33; Azadeh Dastyari and Maria O’Sullivan, ‘Not for Export: The Failure of Australia’s Extraterritorial Processing Regime in Papua New Guinea and the Decision of the PNG Supreme Court in Namah’ (2016) 42 Monash University Law Review 308; Azadeh Dastyari, ‘Detention of Australia’s Asylum Seekers in Nauru: Is Deprivation of Liberty by Any Other Name Just as Unlawful?’ (2015) 38 University of New South Wales Law Journal 669. 6 See eg Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; AG v Secretary of Justice [2013] NRSC 10 (18 June 2013); Namah v Pato [2016] PGSC 13 (26 April 2016). 7 See eg Senate Legal and Constitutional Affairs References Committee, ‘Incident at the Manus Island Detention Centre from 16 February to 18 February 2014’ (December 2014); Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ (2014); Senate Select Committee on the recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, ‘Taking Responsibility: Conditions and Circumstances at Australia’s Regional Processing Centre in Nauru’ (31 August 2015); Senate Legal and Constitutional Affairs References Committee, ‘Serious Allegations of Abuse, Self-Harm and Neglect of Asylum Seekers in Relation to the Nauru Regional Processing Centre, and Any Like Allegations in Relation to the Manus Regional Processing Centre’ (April 2017). 8 See eg UN Committee against Torture, ‘Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia’, UN doc CAT/C/AUS/CO/4–5 (23 December 2014) para 17; UN Human Rights Council, ‘Report of the Special Rapporteur on the Human Rights of Migrants on His Mission to Australia and the Regional Processing Centres in Nauru’, UN doc A/HRC/35/25/Add.3 (24 April 2017) paras 72–84; UN Human Rights Committee, ‘Concluding Observations on the Sixth Periodic Report of Australia’, UN doc CCPR/C/AUS/CO/6 (1 December 2017) paras 35–36. 9 A select number of asylum seekers had been permitted to leave the RPC for certain hours on certain days from February 2015. 10 Whereas various Australian and international bodies and commentators have contended that Australia has obligations under international law with respect to the people it transfers ‘offshore’, successive Australian governments have insisted that Australia plays only a supporting role in the arrangements, and that the treatment of people in Nauru and PNG is, as a matter of law, the sole responsibility of those sovereign territorial States. See eg Fran Kelly, Interview with Scott Morrison, Minister for Immigration and Border Protection ABC Radio National (7 March 2014); Department of Immigration and Border Protection (DIBP), ‘Submission to the Inquiry into Serious Allegations of Abuse, Self-Harm and Neglect of Asylum Seekers in Relation to the Nauru Regional Processing Centre, and Any Like Allegations in Relation to the Manus Regional Processing Centre’ (November 2016) 5, 14. Previously, in December 2012, a representative of the Department of Immigration and Citizenship stated that ‘[the] regional processing centres are a matter for the Nauruan and Papua New Guinean governments as these centres are located in their sovereign territory’, and agreed with Senator Wright’s phrase that ‘there is no effective control, because it is a sovereign nation’: Vicki Parker, Evidence to Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and Related Bills and Instruments (Canberra, 19 December 2012) 41, 44. 11 Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention); Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Protocol). 12 Relevantly, Australia is a State party to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT), and the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC). Nauru is a signatory to the ICCPR and a State party to the CAT and the CRC. PNG is a State party to the ICCPR and the CRC, but neither a State party nor a signatory to the CAT. 13 Guy S Goodwin-Gill, ‘The Extraterritorial Processing of Claims to Asylum or Protection: The Legal Responsibilities of States and International Organisations’ (2007) 9 UTS Law Review 26, 27. 14 The Michigan Guidelines reflect the consensus of participants of the Fourth Colloquium on Challenges in International Refugee Law convened in 2006 by the University of Michigan’s Program in Refugee and Asylum Law: The Michigan Guidelines on Protection Elsewhere (2007) 28 Michigan Journal of International Law 207. 15 See eg UNHCR, ‘Protection Policy Paper: Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with Respect to Extraterritorial Processing’ (November 2010); UNHCR, ‘Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of Asylum-Seekers’ (May 2013). 16 See in particular Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) 28 Michigan Journal of International Law 223. 17 Australian Government (n 2) 9. See also Julia Gillard and Chris Bowen, ‘Transcript of Joint Press Conference’ (Canberra, 28 June 2012) <https://pmtranscripts.pmc.gov.au/release/ transcript-18654> accessed 5 September 2018. 18 Julia Gillard, ‘Transcript of Press Conference’ (Canberra, 13 August 2012) <https://pmtranscripts.pmc.gov.au/release/transcript-18737> accessed 5 September 2018. 19 Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (25 July 2011). 20 Plaintiff M70/2011 v Minister for Immigration and Citizenship & Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Plaintiff M70). See also Michelle Foster, ‘The Implications of the Failed Malaysian Solution: The Australian High Court and Refugee Responsibility Sharing at International Law’ (2012) 13 Melbourne Journal of International Law 395; Sasha Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the Malaysian Solution Case’ (2012) 12 Human Rights Law Review 168; Tamara Wood and Jane McAdam, ‘Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Australia–Malaysia Arrangement’ (2012) 61 International & Comparative Law Quarterly 274. 21 Plaintiff M70 (n 20) 182–83 (French CJ), 195–97 (Gummow, Hayne, Crennan, and Bell JJ), 233–34 (Kiefel J). 22 Julia Gillard, ‘Legislation to Restore Migration Act Powers’ (12 September 2011) <https://pmtranscripts.pmc.gov.au/release/transcript-18131> accessed 5 September 2018. 23 Commonwealth of Australia, Parliamentary Debates: House of Representatives (Canberra, 27 June 2012) 8220 (Julia Gillard). 24 The Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 was first introduced to Parliament in September 2011, immediately following the High Court’s decision in Plaintiff M70, but did not become law as the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) until the government’s amendments to it in August 2012. 25 Migration Act, s 198AA(c), inserted by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth). 26 In September 2001, the Australian government ‘excised’ certain parts of Australian territory from the migration zone in order to limit the ability of offshore entry persons arriving in those places to apply for protection visas. Excised offshore places included the Australian territories where asylum seekers travelling by boat most often arrived, such as Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands: Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). 27 Migration Act, ss 189(3), 198AD(2), 198AD(3)(d). 28 ibid s 198AD(5). 29 ibid ss 198AE, 198AF, and 198AG. For an analysis of the extent to which the ‘public interest’ criterion acts as a constraint on power in the Australian migration context, see Gabrielle Appleby and Alexander Reilly, ‘Unveiling the Public Interest: The Parameters of Executive Discretion in Australian Migration Legislation’ (2017) 28 Public Law Review 293. 30 Migration Act, s 46A. 31 See Michigan Guidelines (n 14) para 12. 32 Nauru and PNG were designated as regional processing countries on 10 September and 9 October 2012 respectively. 33 Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (29 August 2012) (2012 Nauru MOU); Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to and Assessment of Persons in Papua New Guinea, and Related Issues (8 September 2012) (2012 PNG MOU). 34 2012 Nauru MOU (n 33) cls 7, 9; 2012 PNG MOU (n 33) cls 9, 11. 35 2012 Nauru MOU (n 33) cls 8, 14; 2012 PNG MOU (n 33) cls 10, 18. 36 Michigan Guidelines (n 14) para 16. The 2012 Nauru MOU and 2012 PNG MOU did, however, contain more general statements affirming that Nauru and PNG would ‘ensure … that relevant human rights standards are met’, and the 2012 PNG MOU stipulated further that all activities undertaken in relation to it would be ‘conducted in accordance with international law and the international obligations of the respective Participant’: 2012 Nauru MOU (n 33) cl 12; 2012 PNG MOU (n 33) cls 4, 15. 37 Between September 2012 and March 2013 these visas were called ‘Australian Regional Processing Visas’. 38 Immigration Regulations 2000 (Nr), regs 13(1a), (1b). 39 ibid reg 9A(7), sch. See also Immigration Regulations 2013 (Nr), regs 5(7), 9, sch 2. 40 Refugees Convention Act 2012 (Nr); Asylum Seekers (Regional Processing Centre) Act 2012 (Nr). In February 2015, the Nauru RPC began to operate under partial ‘open centre’ arrangements, according to which certain asylum seekers were permitted to leave the RPC on certain days and for certain times. These arrangements were followed by Nauruan legislative and policy amendments in October 2015 transitioning the detention centre to an open facility on a permanent basis. Despite this change, UNHCR has continued to consider asylum seekers and refugees residing at the Nauru RPC to be living in a ‘detention-like’ setting: UNHCR, ‘Submission by the Office of the United Nations High Commissioner for Refugees on the Inquiry into the Serious Allegations of Abuse, Self-Harm and Neglect of Asylum-Seekers in Relation to the Nauru Regional Processing Centre, and Any Like Allegations in Relation to the Manus Regional Processing Centre’ (12 November 2016) 8. 41 PNG’s Migration Act 1978 and Migration Regulations 1979 were amended by the Migration (Amendment) Regulation 2013 (PNG), the Migration (Amendment) Regulation 2014 (PNG), and the Migration (Amendment) Act 2015 (PNG). 42 Migration Act 1978 (PNG), s 20; PNG, National Gazette No G334 (5 September 2012) 1. See also DIBP (n 10) 17. 43 Letters from António Guterres, UN High Commissioner for Refugees, to Chris Bowen, Australian Minister for Immigration and Citizenship: (5 September 2012) 2, (9 October 2012) 1. 44 ibid (5 September 2012) 2; (9 October 2012) 2. The ‘responsibilities’ referred to by the High Commissioner in this sense appeared to be Australia’s obligations under international law with respect to asylum seekers it intended to remove from its jurisdiction, those obligations having been engaged when asylum seekers entered Australian territory and/or came within the power and control of Australian authorities on the high seas. The High Commissioner noted that there were conflicting indications as to whether Australia intended for these obligations to cease and be transferred in full to Nauru and PNG with the physical transfer of people. 45 Letters (n 43) (5 September 2012) 3, (9 October 2012) 3. 46 ibid. 47 Michigan Guidelines (n 14) para 14. 48 ibid para 15. 49 See eg Robert Cornall, ‘Review into Allegations of Sexual and Other Serious Assaults at the Manus Offshore Processing Centre’ (September 2013); Philip Moss, ‘Review into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ (6 February 2015); Christopher Doogan, ‘Review of Recommendation Nine from the Moss Review’ (26 June 2015); Senate Legal and Constitutional Affairs References Committee, ‘Serious Allegations of Abuse’ (n 7). 50 Janet Phillips and Harriet Spinks, ‘Boat Arrivals in Australia since 1976’ Research Paper (Australian Parliamentary Library, 23 July 2013) 22–23. 51 In this article, the ‘Australian Immigration Minister’ and the ‘Australian Immigration Department’ are used to refer to the relevant Australian government minister and associated department tasked with managing immigration and offshore processing. This department underwent a number of changes to its name and structure during the relevant period. At the time that offshore processing was reintroduced in August 2012 until September 2013, it was the Department of Immigration and Citizenship (DIAC); between September 2013 and December 2017 it was the Department of Immigration and Border Protection (DIBP); and since December 2017 it has been the Department of Home Affairs. 52 Chris Bowen, ‘No Advantage Onshore for Boat Arrivals’ (21 November 2012) <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/2060961/upload_binary/2060961.pdf> accessed 1 May 2018. 53 Letter from Brendan O’Connor to the Parliamentary Joint Committee on Human Rights, ‘Examination of the Migration (Regional Processing) Package of Legislation’, answer to question No 8 (29 May 2013); Madeline Gleeson, Offshore: Behind the Wire on Manus and Nauru (NewSouth 2016) 131–42; Greg Lake, Evidence to Australian Human Rights Commission, National Inquiry into Children in Immigration Detention (Sydney, 31 July 2014) 6–8. 54 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012, Explanatory Memorandum, 1. 55 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), sch 1 item 8. In 2014, the definition of an ‘unauthorised maritime arrival’ was amended to include children of unauthorized maritime arrivals born either in the Australian migration zone or in a regional processing country, if the child is not an Australian citizen at the time of his or her birth: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), sch 6 item 2. 56 The excision of Australian territory for the purposes of the Migration Act did not affect the application or scope of Australia’s international obligations: McAdam and Purcell (n 1) 103. 57 These people joined the ‘legacy caseload’ in Australia and were either detained or released into the community on bridging visas until they began to be processed under the new ‘fast track’ system introduced in December 2014: see part 3.3. 58 Government of Papua New Guinea and the Government of Australia, ‘Regional Resettlement Arrangement between Australia and Papua New Guinea’ (19 July 2013) <https://dfat.gov.au/geo/papua-new-guinea/Pages/regional-resettlement-arrangement-between-australia-and-papua-new-guinea.aspx> accessed 13 August 2019; Kevin Rudd, ‘Australia and Papua New Guinea Regional Settlement Arrangement’ (19 July 2013) <http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/australia-and-papua-new-guinea-regional-settlement-arrangement.html> accessed 1 May 2018; Kevin Rudd and Peter O’Neill, ‘Joint Press Conference’ (19 July 2013) <http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/transcript-joint-press-conference-2.html> accessed 1 May 2018; Kevin Rudd, ‘Broadcast on the Regional Resettlement Arrangement between Australia and PNG’ (19 July 2013) <http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/transcript-broadcast-regional-resettlement-arrangement-between-australia-and-png.html> accessed 1 May 2018. 59 Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (3 August 2013) (2013 Nauru MOU); Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues (6 August 2013) (2013 PNG MOU). 60 Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth), sch 1 item 1. 61 Migration Legislation Amendment (Transitional Movement) Bill 2002 (Cth), Explanatory Memorandum, 2. 62 Migration Act, ss 198(1A), 198B. When offshore processing was reintroduced in August 2012, people determined to be refugees were excluded from the definition of ‘transitory persons’: Migration Act, s 5(1). In 2013, the definition of a ‘transitory person’ was amended to reflect the repeal of provisions relating to ‘offshore entry persons’ and the introduction of ‘unauthorised maritime arrivals’ into the Migration Act, and to remove the previous exclusion of people determined to be refugees: Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) sch 1 items 4, 5, 6. In 2014, the definition was again amended, with retrospective effect, to reflect the Australian government’s intention that any child of a transitory person should also assume that status, regardless of whether they were born in Australia or in a regional processing country, unless they were an Australian citizen at the time of their birth: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) sch 6 item 1. 63 Migration Act, ss 46B, 198C. If a transitory person was recognized by the Refugee Review Tribunal as meeting the definition of a refugee in art 1A of the Refugee Convention as amended by its Protocol, they became eligible to apply for a visa of a class determined by the Immigration Minister: s 198C(8). 64 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) sch 1 item 48. 65 See eg Fran Kelly, Interview with Peter Dutton, Minister for Immigration and Border Protection ABC Radio National (19 October 2015). 66 Gleeson (n 53) 380. 67 International Health & Medical Services, ‘Senate Legal and Constitutional Affairs References Committee Inquiry into Serious Allegations of Abuse, Self-Harm and Neglect of Asylum Seekers in relation to the Nauru Regional Processing Centre, and Any Like Allegations in relation to the Manus Regional Processing Centre: Opening Statement’ (15 March 2017) 2. 68 David Wroe, ‘Send Them to Taiwan: Turnbull Government’s Secret Refugee Deal Revealed’ Sydney Morning Herald (22 June 2018) <https://www.smh.com.au/politics/federal/send-them-to-taiwan-turnbull-government-s-secret-refugee-deal-revealed-20180622-p4zn7d.html> accessed 15 March 2019. 69 ibid. 70 Helen Davidson and Saba Vasefi, ‘Iranian Refugee and Son at Risk of Suicide Returned to Nauru against Medical Advice’ The Guardian (14 May 2018) <https://www.theguardian.com/australia-news/2018/may/14/iranian-refugee-and-son-at-risk-of-suicide-returned-to-nauru-against-medical-advice> accessed 15 March 2019; Shyang-yun Cheng, ‘Refugee Patients Were Not Forcibly Returned to Nauru from Taiwan’ The Guardian (18 May 2018) <https://www.theguardian.com/australia-news/2018/may/18/refugee-patients-were-not-forcibly-returned-to-nauru-from-taiwan> accessed 15 March 2019. 71 See eg Ben Doherty, ‘Critically Ill Refugee Child Flown from Nauru to Australia with Family’ The Guardian (21 August 2018) <https://www.theguardian.com/australia-news/2018/aug/21/critically-ill-refugee-child-flown-from-nauru-to-australia-with-family> accessed 5 September 2018. 72 Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 (Plaintiff S99) para 252. 73 ibid paras 243, 276. 74 ibid paras 405, 467 75 ibid paras 466, 500. 76 This duty of care could arise from the Australian government’s exercise of its powers under s 198AHA of the Migration Act (empowering it to take any action in relation to an agreement for regional processing) and/or s 61 of the Constitution (the source of its executive power), and from the fact that it transferred people offshore pursuant to the Migration Act and maintained a significant involvement in the day-to-day operation of regional processing activities in Nauru and PNG, including the provision of healthcare. See eg FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63 (FRX17) para 43. 77 ibid; AYX18 v Minister for Home Affairs [2018] FCA 283; DCQ18 v Minister for Home Affairs [2018] FCA 918; BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060; DRB18 v Minister for Home Affairs [2018] FCA 1163. 78 DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050; DWE18 as Litigation Representative for DWD18 v Minister for Home Affairs [2018] FCA 1121. 79 FRX17 (n 76) para 73. 80 ibid. 81 Emma Younger and Sarah Farnsworth, ‘Nauru Blocks Transfer of Mentally Ill Refugee to Australia Despite Federal Court Order’ (ABC News, 5 September 2018) <https://www.abc.net.au/news/2018-09-05/nauru-blocks-transfer-of-mentally-ill-refugee-to-australia/10205040> accessed 21 January 2019. See also ELF18 v Minister for Home Affairs [2018] FCA 1368; EUB18 v Minister for Home Affairs [2018] FCA 1432. In cases where Nauru denied permission for air ambulances to land, it appeared to remain willing to allow refugees to travel to Australia on commercial airlines. 82 This body is also known as the Transitory Persons Complex Case Review Committee. 83 ELF18 (n 81) para 66. 84 ibid para 69. 85 EUB18 (n 81) para 35. 86 ibid. 87 ibid para 36. 88 Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth) sch 6. 89 Commonwealth of Australia (n 1) 316–19. 90 Letters (n 43) (5 September 2012) 3, (9 October 2012) 4. 91 ibid. 92 ibid; UNHCR, Protection Policy Paper (n 15); UNHCR, Guidance Note (n 15). 93 See Michigan Guidelines (n 14) para 6; Foster (n 16) 249. 94 2012 Nauru MOU (n 33) cl 14(b); 2012 PNG MOU (n 33) cl 18(b) (emphasis added). 95 Chris Bowen, ‘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’ (9 October 2012) para 3; Chris Bowen, ‘Statement of Reasons for Thinking that it is in the National Interest to Designate the Independent State of Papua New Guinea to be a Regional Processing Country’ (9 October 2012) para 17. 96 Chris Bowen, ‘Statement of Reasons for Thinking that it is in the National Interest to Designate Nauru to be a Regional Processing Country’ (10 September 2012) para 18 (emphasis added). 97 See eg Martin Bowles, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 19 November 2013) 129, (Canberra, 25 February 2014) 30–31; DIBP, Answer to Question on Notice from Senate Legal and Constitutional Affairs Legislation Committee, Estimates, question BE17/151 (Canberra, 22 May 2017). 98 See text accompanying nn 37–39. 99 Immigration Regulations 2000 (Nr), reg 2, inserted by Immigration (Amendment) Regulations 2012 (Nr) (emphasis added). 100 Although the 2012 and 2013 Nauru MOUs referred only to the determination of refugee status, and the Refugees Convention Act originally only referred to asylum seekers being recognized as refugees, asylum seekers’ complementary protection needs were also considered. Decision makers were advised: ‘Where it is determined that a person does not fall within the refugee definition or is excluded from refugee protection, grounds for “complementary protection” will then need to be considered. ... In practice, this means that Nauru will carefully consider whether there are any other legal reasons why that person may need to be protected, for example whether the person may be tortured or suffer similar treatment if he or she would be returned’: Nauruan Department of Justice and Border Control, Refugee Status Determination Handbook (August 2013) ix <http://www.naurugov.nr/media/33067/nauru_rsd_handbook_august_2013.pdf> accessed 1 May 2018. The need to consider Nauru’s complementary protection obligations was given a formal legislative basis in 2014 in an amendment to the Refugees Convention Act: Refugees Convention (Amendment) Act 2014 (Nr). In this article, references to asylum seekers determined to be ‘refugees’ in Nauru include people found to engage Nauru’s complementary protection obligations under the CAT and the CRC. 101 Refugees Convention Act, ss 5–7. 102 UNHCR, ‘UNHCR Mission to the Republic of Nauru: 3–5 December 2012’ (14 December 2012) 1. 103 ibid 1. 104 ibid 10. 105 ibid 11. 106 ibid 5, 10–11. 107 UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru: 7 to 9 October 2013’ (26 November 2013) 8. 108 See text accompanying n 59. 109 2013 Nauru MOU (n 59) cl 19(b). 110 Craddock Murray Neumann, ‘Craddock Murray Neumann Awarded Gov’t Contract’ (14 March 2013) <http://www.immigrationlaw.com.au/document-800498533/craddock-murray-neumann-awarded-govt-contract> accessed 3 May 2018; Nauruan Department of Justice and Border Control (n 100) 108, 124–25, 129–30. 111 UNHCR (n 107) 7–8; Nauruan Department of Justice and Border Control (n 100) ix; Republic of Nauru Government Gazette No 186 (18 December 2013) 6–7; Republic of Nauru, Nauru Bulletin, Issue 4-2013/80 (20 March 2013) 1. 112 UNHCR (n 107) 8. 113 ibid. 114 ibid; ‘Appellant’s Amended Submissions in Reply’ filed in EMP144 v Republic of Nauru (case M151 of 2017 in the High Court of Australia on appeal from the Supreme Court of Nauru, 31 January 2018) n 7. 115 Refugees Convention Act, ss 13, 19. 116 Republic of Nauru Government Gazette No 164 (16 October 2013) 15–16; Republic of Nauru Government Gazette No 91 (2 July 2014) 9–10. 117 Refugees Convention Act, s 43. 118 Appeals to the High Court lay as of right pursuant to the terms of a treaty between Australia and Nauru and implementing legislation in both countries: Agreement Between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (6 September 1976); Appeals Act 1972 (Nr) s 44; Nauru (High Court Appeals) Act 1976 (Cth) s 5. In December 2017, Nauru gave Australia notice of its intention to terminate the agreement, meaning no new appeals could be filed with the High Court after 90 days: Jeremy Gans, ‘High Court’s Nauru Jurisdiction Silently Disappears’ (Opinions on High, 6 April 2018) <https://blogs.unimelb.edu.au/opinionsonhigh/2018/04/06/news-high-courts-nauru-jurisdiction-silently-disappears/comment-page-1/> accessed 3 May 2018. For an analysis of the High Court’s appellate jurisdiction with regard to Nauru, see Gregory Dale, ‘Appealing to Whom? Australia’s “Appellate Jurisdiction” over Nauru’ (2007) 56 International & Comparative Law Quarterly 641. 119 Migration (Amendment) Act, 1989 (PNG). 120 Letter from the Department of Immigration and Citizenship to the Parliamentary Joint Committee on Human Rights, ‘Examination of the Migration (Regional Processing) Package of Legislation’, answer to question No 11 (30 January 2013). 121 UNHCR, ‘UNHCR Mission to Manus Island, Papua New Guinea: 15–17 January 2013’ (4 February 2013) 9–10. 122 ibid 8. 123 ibid. 124 ibid 10. 125 Migration (Amendment) Regulation 2013 (PNG). 126 In this article, references to asylum seekers determined to be ‘refugees’ in PNG do not include people found to engage PNG’s complementary protection obligations under the ICCPR, as those obligations have not been transposed into domestic law or explicitly enshrined in its RSD procedures. For the opposite position under Nauruan law, see n 100. 127 One of these exclusions arose if the person would be a threat to the national security or defence of PNG if he or she were to remain in the country; two exclusions related to the person’s involvement in terrorism either within or outside PNG, if the continued presence of that person in PNG would constitute a threat to public safety; and there was a final broadly framed exclusion of any person who ‘has, during the period of his or her residency at the regional processing centre anywhere or within Papua New Guinea, exhibited a demeanour incompatible with a person of good character and standing’: Migration Regulation 1979 (PNG), reg 14(2)(e)–(h). 128 UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 11–13 June 2013’ (12 July 2013) 6. 129 UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 23 to 25 October 2013’ (26 November 2013) 7. 130 Migration (Amendment) Regulation 2014 (PNG). 131 UNHCR (n 128) 6–7. 132 ibid 7. 133 ibid. 134 Mark Cormack, Evidence to Senate Legal and Constitutional Affairs References Committee, Incident at the Manus Island Detention Centre from 16 to 18 February 2014 (Canberra, 10 June 2014) 12. 135 Rimbink Pato, ‘Statement to Parliament on the Regional Resettlement Arrangements (RRA) for Asylum Seekers Transferred to Papua New Guinea’ (18 September 2013) 6–7. 136 UNHCR (n 129) 8. 137 ibid. 138 ibid. 139 Rimbink Pato, Press Release, ‘PNG Takes Action on Refugees’ (4 November 2014) 2. 140 UNHCR (n 129) 10. 141 PNGICSA, ‘Refugee Status Determination Process’ (undated) <http://www.immigration.gov.png/images/documents/refugee_fact_sheets/Fact%20Sheet%20-%20RSD.pdf> accessed 3 May 2018. 142 Administrative Arrangements for the Temporary Regional Processing Centre (RPC) Supporting the Memorandum of Understanding between the Government of the Independent State of Papua New Guinea (PNG) and the Government of Australia, relating to the transfer to and assessment of persons in Papua New Guinea, and Related Matters (30 April 2013) cl 4.6. 143 DIBP, Answer to Question on Notice from Senate Legal and Constitutional Affairs Legislation Committee, Estimates, question BE14/090 (Canberra, 26–27 May 2014). 144 Migration Act, s 46A. 145 The asylum seekers who arrived in Australia after 19 July 2013 and who should have been liable to offshore processing were exempted from transfer and permitted to remain in Australia as part of the legacy caseload as a result of the Australian Abbott government’s political negotiations to secure votes to pass the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). See eg Scott Morrison, ‘Reintroducing TPVs to resolve Labor’s Asylum Legacy Caseload, Cambodia’ (26 September 2014) <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov.au/media/sm/2014/sm218131.htm> accessed 2 May 2018; Commonwealth of Australia, Parliamentary Debates: Senate (Canberra, 4 December 2014) 10313 (Glenn Lazarus); Commonwealth of Australia, ‘Specification of Class of Persons Defined as Fast Track Applicants’, Legislative Instrument IMMI 16/008 (31 March 2016); Scott Morrison, ‘Babies Born to IMAs Transferred from Nauru to Remain in Australia’ (18 December 2014) <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov.au/media/sm/2014/sm220187.htm> accessed 2 May 2018. 146 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). 147 These two categories of visa are known as ‘temporary protection visas’ and ‘safe haven enterprise visas’. See Mary Crock and Kate Bones, ‘Australian Exceptionalism: Temporary Protection and the Rights of Refugees’ (2015) 16 Melbourne Journal of International Law 522. 148 Refugee Convention, art 34. 149 See eg Letters (n 43) (5 September 2012) 2, (9 October 2012) 1–2; UNHCR, Protection Policy Paper (n 15); UNHCR, Guidance Note (n 15). 150 Michigan Guidelines (n 14) para 3. 151 See eg UNHCR, ‘Australia Must Secure Solutions for Refugees Abandoned on Manus Island’ (22 December 2017) <http://www.unhcr.org/en-au/news/briefing/2017/12/5a3cce224/australia-must-secure-solutions-refugees-abandoned-manus-island.html> accessed 5 September 2018. 152 Julia Gillard, ‘Moving Australia Forward’ (Lowy Institute, Sydney, 6 July 2010) <https://pmtranscripts.pmc.gov.au/release/transcript-17435> accessed 2 May 2018. 153 Australian Government (n 2) 11. 154 ibid 8. 155 Amber Jamieson, ‘No Advantage? Nobody Knows What That Means’ (Crikey, 13 September 2012) <https://www.crikey.com.au/2012/09/13/no-advantage-nobody-yet-knows-what-that-means/> accessed 2 May 2018. 156 ibid; Chris Bowen, ‘Press Conference’ (Sydney, 14 September 2012) <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/1914303/upload_binary/1914303.pdf> accessed 5 September 2018; Angus Houston, Michael L’Estrange, and Paris Aristotle, Evidence to Parliamentary Joint Committee on Human Rights (17 December 2012) 19–20. 157 In announcing the ‘no advantage’ policy, the Australian Immigration Minister said he was ‘not going to provide a how-to guide to people smugglers’ about how the policy would work: Bowen (n 156). 158 Letters (n 43) (5 September 2012) 3, (9 October 2012) 4. 159 Frank Brennan, Tania Penovic, Sarah Joseph, Philip Lynch, Kon Karapanagiotidis, and David Manne, Evidence to Parliamentary Joint Committee on Human Rights (17 December 2012) 47, (19 December 2012) 3, 9–10, 17, 27–28; Amnesty International, Nauru Offshore Processing Facility Review 2012 (23 November 2012) 1. 160 2012 Nauru MOU (n 33) cl 11; 2012 PNG MOU (n 33) cl 13. 161 ABC, ‘No Advantage: Inside Australia’s Offshore Processing Centres – Extended Interview with Kieren Keke’ (Four Corners, 29 April 2013) <http://mpegmedia.abc.net.au/news/fourcorners/video/20130429_4c_keke_288p.mp4> accessed 15 November 2017. 162 ABC, ‘No Advantage: Inside Australia’s Offshore Processing Centres’ (Four Corners, 29 April 2013) <http://www.abc.net.au/4corners/no-advantage/4660004> accessed 2 May 2018. 163 AG v Secretary of Justice [2013] NRSC 10 (18 June 2013) para 15. 164 Immigration (Amendment) Regulations 2012 (Nr) preamble para 2 (emphasis added). 165 Between September 2012 and March 2013, reg 9A(2)(c) of the Immigration Regulations 2000 (Nr) provided that an Australian regional processing visa could be granted to a person determined to be a refugee for the purpose of that person remaining in Nauru ‘but only until a durable solution for the refugee’s permanent settlement in Australia or elsewhere is found by or on behalf of the Commonwealth of Australia’. Since March 2013, reg 9(4)(d) of the Immigration Regulations 2013 (Nr) and the Immigration Regulations 2014 (Nr) have provided that a regional processing centre visa can only be granted to a person determined to be a refugee ‘to remain in Nauru pending the making of arrangements for his or her settlement in another country’. 166 Liam Fox, ‘Sri Lankan, Iranian Families Sent to Manus Island’ ABC Radio Australia (30 November 2012) <http://www.radioaustralia.net.au/international/2012-11-30/sri-lankan-iranian-families-sent-to-manus-island/1054224> accessed 2 May 2018. 167 Chris Bowen, ‘Doorstop Interview’ (Sydney, 22 November 2012) <http://pandora.nla.gov.au/pan/67564/20130204-1043/www.minister.immi.gov.au/media/cb/2012/cb191923.htm> accessed 1 May 2018; Marius Benson, Interview with Chris Bowen, Minister for Immigration and Citizenship, ABC News Radio (22 November 2012). 168 Simon Cullen, ‘First Asylum Seekers Arrive on Manus Island’ (ABC News, 21 November 2012) <http://www.abc.net.au/news/2012-11-21/first-asylum-seekers-arrive-on-manus-island/4383876> accessed 1 May 2018. 169 RRA (n 58) para 6. 170 ibid para 3. 171 ibid. 172 2013 PNG MOU (n 59) cl 13. 173 RRA (n 58) paras 8–9; 2013 PNG MOU (n 59) cl 6. 174 ‘Immigration Minister Scott Morrison Says PNG Refugee Resettlement Program Faces “Difficult and Frustrating Problems”’ (ABC News, 10 September 2014) <http://www.abc.net.au/news/2014-09-10/morrison-on-difficulties-of-png-refugee-resettlement/5735016> accessed 1 May 2018. 175 2013 Nauru MOU (n 59) cls 12, 13 (emphasis added). 176 ibid cls 12, 14. 177 ibid cl 6; 2013 PNG MOU (n 59) cl 6. 178 UNHCR (n 107) 23–24. 179 ibid. 180 ibid 24. 181 ibid. 182 Gleeson (n 53) 227–36. 183 Scott Morrison, ‘First Refugees Settled in Nauru’ (22 May 2014) <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov.au/media/sm/2014/sm214755.htm> accessed 1 May 2018. 184 ibid. 185 Immigration Regulations 2014 (Nr), reg 9A, inserted by Immigration (Amendment) Regulations 2014 (No 4 of 2014) (Nr). 186 Immigration Regulations 2014 (Nr), regs 7(1A) and 9A(2)(a)(v), inserted by Immigration (Amendment) Regulations 2014 (Nr). 187 Health care was provided by International Health and Medical Services (IHMS), the same service provider that provided health services within the Nauru and Manus Island RPCs, and in Australian immigration detention centres. Settlement support services were originally provided by Save the Children Australia, who were replaced by Connect Settlement Services, an Australian consortium of refugee settlement agencies, in January 2015. In December 2016, Connect Settlement Services withdrew from Nauru and were replaced by HOST International, an Australian charity. Unlike the previous two settlement support service providers, HOST International’s contract was with Nauru directly, however Australia assisted with the arrangements: Morrison (n 183); Republic of Nauru, Nauru Bulletin Issue 1-2015/119 (20 January 2015); Cheryl-Anne Moy, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 27 February 2017) 163–64. 188 Republic of Nauru, Nauru Bulletin Issue 4-2016/136 (6 May 2016) 1. 189 UNHCR (n 40) 19. 190 ibid. 191 See eg Republic v Nemati [2016] NRDC 3 (9 February 2016); Republic v Nemati [2016] NRDC 5 (16 February 2016). 192 Nauruan Department of Justice and Border Control, ‘Information and Q&A to Support GoN Group Messaging to Transferees Prior to Determination Hand Downs’ (2014) 1 (emphasis added) <https://www.theguardian.com/world/interactive/2014/apr/28/leaked-nauru-resetttlement-document-in-full> accessed 1 May 2018; Republic of Nauru, ‘Nauru-Australia Talks Result in Temporary Resettlement of Refugees’ (11 April 2014) <http://www.naurugov.nr/government-information-office/media-release/nauru-australia-talks-temporary-settlement.aspx> accessed 1 May 2018. 193 Nauruan Department of Justice and Border Control (n 192) 2–3. 194 Republic of Nauru (n 188) 1. 195 Kieran Gilbert, Interview with Malcolm Turnbull, Prime Minister of Australia (Sky News, 21 September 2016). 196 ‘Nauru Calls for Help to Resettle Refugees’ Radio New Zealand (20 September 2016) <https://www.radionz.co.nz/international/pacific-news/313771/nauru-calls-for-help-to-resettle-refugees> accessed 1 May 2018. 197 Nauru (RPC) Corporation Act 2017 (Nr) s 5. 198 HOST International, ‘Nauru Settlement Program’ (undated) <https://www.hostinternational.org.au/nauru-settlement-services> accessed 2 May 2018. 199 Immigration Regulations 2014 (Nr) reg 9(4)(d). 200 Chris Kenny, Interview with Peter Dutton, Minister for Immigration and Border Protection (Sky News, 26 April 2015); Michael Pezzullo, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 (Canberra, 15 November 2016) 21. 201 Letters (n 43) (9 October 2012) 3. 202 UNHCR (n 129) 25. 203 ibid 3, 25–26; UNHCR, ‘Australia-Papua New Guinea Asylum Agreement Presents Protection Challenges’ (26 July 2013) <http://www.unhcr.org/print/51f2426e6.html> accessed 5 September 2018. 204 Pato (n 135) 7. 205 UNHCR (n 129) 26. 206 ibid. 207 Human Rights Watch, ‘Australia/PNG: Refugees Face Unchecked Violence’ (25 October 2017) <https://www.hrw.org/news/2017/10/25/australia/png-refugees-face-unchecked-violence> accessed 30 April 2018. 208 Pato (n 135) 8. 209 Kevin Rudd, Tony Burke, and Peter O’Neill, ‘Transcript of Joint Press Conference’ (Brisbane, 19 July 2013) <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2611766%22> accessed 30 April 2018. 210 cf Refugee Convention, arts 17–19, 26–28. 211 Letter from PNGICSA to Reza Mollagholipour (27 March 2015) <http://www.refugeeaction.org.au/wp-content/uploads/2015/06/Reza-letter.jpg> accessed 30 April 2018. 212 Gleeson (n 53) 344–45; Human Rights Watch (n 207); Ben Doherty, ‘A Life in Limbo: The Refugees Who Fled Torture Only to End Up Trapped Indefinitely on Manus’ The Guardian (5 September 2015) <https://www.theguardian.com/australia-news/2015/sep/04/a-life-in-limbo-the-refugees-who-fled-torture-only-to-end-up-trapped-indefinitely-on-manus> accessed 30 April 2018. 213 PNG, ‘National Refugee Policy’ (June 2015) <http://www.immigration.gov.pg/images/PNG_National_Refugee_Policy_FINAL_ENDORSED_BY_CABINET.pdf> accessed 30 April 2018. 214 Rimbink Pato, ‘Media Release: Government Approves the National Refugee Policy’ (20 October 2015) 2 <https://www.immigration.gov.pg/images/Media_Release_-_Government_Approves_the_National_Refugee_Policy.pdf> accessed 30 April 2018. 215 PNG (n 213) 7. 216 ibid 9. 217 ibid. 218 ibid 10. 219 ibid 11; Constitution of the Independent State of Papua New Guinea (PNG) s 67; Citizenship Act 1975 (PNG) s 6; Citizenship Regulation 1975 (PNG) reg 6. 220 Amnesty International, ‘Punishment Not Protection: Australia’s Treatment of Refugees and Asylum Seekers in Papua New Guinea’ (11 January 2018) 21. 221 DIBP (n 97) question BE17/215; Michael Gordon, ‘Desperate Refugees Arrested Trying to Return to Manus Island Centre’ Sydney Morning Herald (22 April 2016) <https://www.smh.com.au/politics/federal/desperate-refugees-arrested-trying-to-return-to-manus-island-centre-20160422-gocyg1.html> accessed 30 April 2018. 222 Joshua Epe, ‘52 Refugees to Settle in PNG’ (Loop PNG, 11 December 2015) <http://www.looppng.com/content/52-refugees-settle-png> accessed 30 April 2018. See also Amnesty International (n 220) 20. 223 Migration Regulation 1979 (PNG) reg 2(4) inserted by Migration (Amendment) Regulation 2014 (PNG). 224 Ben Doherty, ‘“No Future for You Here”: Australia and PNG Push to Clear Out Manus Detainees’ The Guardian (27 September 2016) <https://www.theguardian.com/australia-news/2016/sep/27/no-future-for-you-here-australia-and-png-push-to-clear-out-manus-detainees> accessed 30 April 2018. 225 Peter O’Neill, ‘Westpac Address’ (National Press Club of Australia, Canberra, 3 March 2016) 18 <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/4538803/upload_binary/4538803.pdf> accessed 30 April 2018. 226 Richard Ackland, ‘Refugees Forced to Choose between PNG Resettlement or “Custody in New Prison”’ The Guardian (14 August 2015) <https://www.theguardian.com/australia-news/2015/aug/14/refugees-forced-to-choose-between-png-resettlement-or-custody-in-new-prison> accessed 30 April 2018; Behrouz Boochani, Ben Doherty, and Nick Evershed, ‘Revealed: Year-Long Campaign to Make Conditions Harsher for Refugees’ The Guardian (16 May 2017) <https://www.theguardian.com/australia-news/2017/may/17/revealed-year-long-campaign-to-make-conditions-harsher-for-manus-refugees> accessed 30 April 2018; Amnesty International (n 220) 7. 227 Petrus Thomas, ‘Closure of the Manus Regional Processing Centre’ (29 October 2017) 1 <https://www.immigration.gov.pg/images/documents/Media_Realeases/Media_Release-Minister_Thomas_on_Closure_of_Manus_RPC.pdf> accessed 30 April 2018. 228 Michael Koziol, ‘Manus Island Facility Upgrade Cost $8.1m for 24 Days’ Work’ Sydney Morning Herald (12 November 2017) <https://www.smh.com.au/politics/federal/manus-island-facility-upgrade-cost-81m-for-24-days-work-20171112-gzjj0x.html> accessed 30 April 2018. 229 ABF, ‘Misreporting about the Situation in PNG’s Manus Province’ (3 November 2017) <http://newsroom.border.gov.au/channels/Operation-Sovereign-Borders/releases/misreporting-about-the-situation-in-png-s-manus-province> accessed 30 April 2018; UNHCR, ‘Australia Urged to Ensure Protection, Assistance and Solutions for Refugees on Manus Island’ (21 November 2017) <http://www.unhcr.org/en-au/news/briefing/2017/11/5a1465d14/australia-urged-ensure-protection-assistance-solutions-refugees-manus-island.html> accessed 5 September 2018; UNHCR, Medical Expert Mission to Papua New Guinea: 10 to 16 November 2017 (18 December 2017) 3–4. 230 Petrus Thomas, ‘All Refugees and Non-Refugees Now Residing at New Facilities’ (26 November 2017) <https://www.immigration.gov.pg/images/documents/Media_Realeases/Media_Release_by_Minister_Thomas-All_residents_moved_out_of_Manus_RPC.pdf> accessed 30 April 2018; Amnesty International (n 220) 7–8. 231 Watna Mori, ‘Resettlement in PNG Was Never a Viable Option’ The Interpreter (Lowy Institute, 19 March 2018) <https://www.lowyinstitute.org/the-interpreter/resettlement-png-was-never-viable-option> accessed 30 April 2018. 232 UNHCR, ‘UNHCR Fact Sheet on Situation of Refugees and Asylum-Seekers on Manus Island, Papua New Guinea’ (21 January 2018) 2. 233 ibid 2–3; UNHCR, ‘UNHCR Factsheet on Situation of Refugees and Asylum-Seekers on Manus Island, Papua New Guinea’ (15 December 2017) 1–2; Amnesty International (n 220) 14–19; Eric Tlozek, ‘Manus Island Staff Forced to Leave for Their Own Safety after Landowner Protest’ (ABC News, 30 November 2017) <http://www.abc.net.au/news/2017-11-30/manus-island-staff-forced-to-leave-after-protest/9208850> accessed 30 April 2018. 234 Australian Council for International Development, ‘Refugees on Manus: An Impending Mental Health Crisis’ (28 November 2017) 11 <https://acfid.asn.au/sites/site.acfid/files/ACFID%20Fact%20Finding%20Mission%20to%20Manus%20FINAL.pdf> accessed 30 April 2018. 235 Amnesty International (n 220) 20. 236 ibid 13; UNHCR (n 232) 1; Australian Council for International Development (n 234) 5. 237 DIBP (n 97) question BE17/064. 238 Leon Byner, Interview with Peter Dutton, Minister for Immigration and Border Protection Radio FIVEaa (13 November 2017). 239 O’Neill (n 225) 19–20 (emphasis added). 240 Thomas (n 227). 241 ibid. 242 Reuters, ‘Manus Island: UN Calls on Australia to Resolve Plight of Asylum Seekers’ (ABC News, 23 December 2017) <http://www.abc.net.au/news/2017-12-23/un-urges-australia-to-resolve-plight-of-manus-island-detainees/9283884> accessed 30 April 2018. See also UNHCR, Australia Urged to Ensure Protection (n 229). 243 Memorandum of Understanding between the Government of the Kingdom of Cambodia and the Government of Australia relating to the Settlement of Refugees (26 September 2014) (Cambodia MOU); Operational Guidelines for the Implementation of the Memorandum of Understanding on Settlement of Refugees in Cambodia (26 September 2014) (Operational Guidelines). 244 Michael Pezzullo, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 19 October 2015) 120. 245 ibid. 246 Cambodia MOU (n 243) arts 4–5. 247 DIBP (n 97) question BE17/308. 248 Cambodia MOU (n 243) arts 11, 12; Operational Guidelines (n 243) arts 4, 7, 15, 21–22. 249 Operational Guidelines (n 243) arts 11 and 12. 250 Steven Groves, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 26 May 2015) 65; Pezzullo (n 244) 121–22; Michael Pezzullo, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 11 November 2016) 28. 251 Pezzullo (n 244) 121–22; Craig Chittick, Evidence to Senate Foreign Affairs, Defence and Trade Legislation Committee, Estimates (Canberra, 3 June 2015) 171–72. 252 Gleeson (n 53) 294–95. 253 ibid 300–02; Paul Farrell, ‘Resettlement Offer to Asylum Seekers May Have Breached Cambodia Deal’ The Guardian (22 April 2015) <https://www.theguardian.com/australia-news/2015/apr/22/australian-officials-on-nauru-may-have-breached-terms-of-cambodia-agreement> accessed 1 May 2018. 254 Gleeson (n 53) 301–02. 255 Daniel Pye, ‘4 Nauru Refugees Said to be in Australia’ Phnom Penh Post (13 May 2015) <http://www.phnompenhpost.com/national/4-nauru-refugees-said-be-australia> accessed 1 May 2018; Lauren Crothers and Paul Farrell, ‘First Four Refugees from Nauru Land in Cambodia in $40m Resettlement Deal’ The Guardian (4 June 2015) <https://www.theguardian.com/australia-news/2015/jun/04/four-refugees-arrive-in-cambodia-from-nauru-under-deal-with-australia> accessed 1 May 2018. 256 DIBP, ‘Submission to the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ (May 2015) 58. 257 Liam Cochrane, ‘Australia Engages Second Agency for Sole Refugee in Cambodia’ (ABC News, 11 August 2016) <http://www.abc.net.au/news/2016-08-11/australia-brings-in- second-refugee-agency-on-cambodia-deal/7718334> accessed 1 May 2018; Erin Handley and Shaun Turton, ‘With One Nauru Transfer Remaining, Second Oversight Agency Added’ Phnom Penh Post (9 August 2016) <https://www.phnompenhpost.com/national/one-nauru-transfer-remaining-second-oversight-agency-added> accessed 1 May 2018. 258 Shaun Turton, ‘Australia Pushes Refugee Reunions’ Phnom Penh Post (1 November 2016) <http://www.phnompenhpost.com/national/australia-pushes-refugee-reunions> accessed 1 May 2018. 259 Per Liljas, ‘“I need my family”: How a Refugee Held on Nauru is Struggling to Make a New Life in Cambodia’ The Guardian (14 January 2018) <https://www.theguardian.com/world/2018/jan/14/i-need-my-family-how-a-refugee-held-on-nauru-is-struggling-to-make-a-new-life-in-cambodia> accessed 1 May 2018; Erin Handley, ‘Syrian Refugee Reunited with Family in Cambodia after Nauru, Christmas Island Detention’ (ABC News, 8 January 2019) <https://www.abc.net.au/news/2019-01-08/syrian-refugee-reunited-with-family-in-cambodia/10688506> accessed 22 February 2019. 260 Parliament of Australia, Journals of the Senate No 56 (4 September 2017) 1820; Letter from Peter Dutton to Senator Stephen Parry (7 September 2017) (on file with author). 261 UNHCR, ‘UNHCR to Endorse Australia-United States Relocations as “Offshore Processing” Arrangements Fail Refugees’ (13 November 2016) <http://www.unhcr.org/en-au/news/press/2016/11/58290a5b4/unhcr-to-endorse-australia-united-states-relocations-as-offshore-processing.html> accessed 5 September 2018. 262 Malcolm Turnbull and Peter Dutton, ‘Refugee Resettlement from Regional Processing Centres’ (13 November 2016) 1 <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/4934736/upload_binary/4934736.pdf> accessed 2 May 2018. 263 ibid. 264 UNHCR (n 261). 265 ibid. 266 Malcolm Turnbull, ‘Speech at President Obama’s Leaders’ Summit on Refugees’ (New York, 21 September 2016) <http://pandora.nla.gov.au/pan/154649/20160927-1201/www.pm.gov.au/media/2016-09-21/speech-president-obamas-leaders-summit-refugees.html> accessed 2 May 2018; Malcolm Turnbull, ‘United Nations Doorstop’ (New York, 21 September 2016) <http://pandora.nla.gov.au/pan/154649/20160927-1201/www.pm.gov.au/media/2016-09-21/united-nations-doorstop.html> accessed 2 May 2018. 267 ‘Donald Trump and Malcolm Turnbull’s Phone Call: The Full Transcript’ (ABC News, 4 August 2017) <http://www.abc.net.au/news/2017-08-04/donald-trump-malcolm-turnbull-refugee-phone-call-transcript/8773422> accessed 1 May 2018. 268 ibid. 269 Zoe Daniel and Stephanie March, ‘US Refugee Deal: Architect of Deal Says Arrangement Loosely Based on Australia “Doing More”’ (ABC News, 22 March 2017) <http://www.abc.net.au/news/2017-03-22/us-refugee-deal-architect-says-based-on-australia-doing-more/8375250> accessed 4 May 2018. 270 Mandy Newton, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 23 October 2017) 20. 271 Linda Geddes, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 23 October 2017) 20; Mandy Newton, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 26 February 2018) 118. 272 Linda Geddes, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates (Canberra, 21 May 2018) 170. 273 See eg Greg Jennett, ‘APEC Summit: Malcolm Turnbull Plays Down Possible Refugee Resettlement Deal with Malaysia’ (ABC News, 20 November 2016) <http://www.abc.net.au/news/2016-11-20/turnbull-plays-down-any-refugee-resettlement-with-malaysia/8040310> accessed 5 September 2018. 274 DIBP (n 97) question BE17/211. See also DIBP, Answer to Question on Notice from Senate Legal and Constitutional Affairs Legislation Committee, Estimates, question AE17/220 (Canberra, 27 February 2017). 275 DIBP (n 97) question BE17/211. 276 Letters from Peter Dutton and Michaelia Cash to Rosemary Laing, Clerk of the Senate, and Ian Macdonald, Chair of the Senate Legal and Constitutional Affairs Legislation Committee (17 and 21 November 2016) (on file with author). 277 Jessica Longbottom, ‘Asylum Seeker Pair Leaves Nauru “Black Hole” to be Reunited with Family in Canada’ (ABC News, 21 February 2016) <http://www.abc.net.au/news/2016-02-21/asylum-seekers-leave-nauru-for-life-in-canada/7187416> accessed 1 May 2018. 278 Josh Butler, ‘Canadian Family Takes in Manus Refugee Left Behind by Australia’ (Huffington Post, 8 November 2017) <https://www.huffingtonpost.com.au/2017/11/07/canadian-family-takes-in-manus-refugee-left-behind-by-australia_a_23270040/> accessed 1 May 2018. 279 Julia Gillard and John Key, ‘Transcript of Joint Press Conference’ (Queenstown, 9 February 2013) <http://pandora.nla.gov.au/pan/121064/20130221-0004/www.pm.gov.au/press-office/transcript-joint-press-conference-36.html> accessed 7 May 2018. 280 AAP, ‘Gillard’s New Zealand Asylum Seeker Deal “Won’t Stop People Smugglers” Says Opposition’ (News.com.au, 9 February 2013) <http://www.news.com.au/national/gillards-new-zealand-asylum-seeker-deal-wont-stop-people-smugglers-says-opposition/news-story/a4fc44c8f04122cbe3b75e3506c179b0> accessed 7 May 2018. 281 Claire Trevett, ‘Government Offers to Take 150 Refugees’ New Zealand Herald (28 April 2016) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11630218> accessed 7 May 2018. Following the ruling of the Supreme Court of Papua New Guinea in April 2016, asylum seekers detained at the Manus RPC were given limited options to travel by bus into the town of Lorengau each day, and PNG authorities claimed that ‘no asylum seeker or refugee is in detention’ on Manus Island: Eric Tlozek, ‘Manus Island: Asylum Seekers and Refugees No Longer in Detention, PNG Authorities Say’ (ABC News, 12 May 2016) <http://www.abc.net.au/news/2016-05-12/png-authorities-say-manus-refugees-no-longer-in-detention/7407826> accessed 7 May 2018. Despite this change, asylum seekers continued to be required to sleep overnight at the Manus RPC. Following the closure of the RPC on 31 October 2017, Amnesty International reported that asylum seekers and refugees remained in ‘detention-like centres’ on Manus Island: Amnesty International (n 220) 23. 282 Helen Davidson, ‘Turnbull Rejects New Zealand Offer to Take 150 Refugees from Detention’ The Guardian (29 April 2016) <https://www.theguardian.com/australia-news/2016/apr/29/turnbull-rejects-new-zealand-offer-to-take-150-refugees-from-detention> accessed 7 May 2018. 283 Under the Trans-Tasman Travel Arrangement, New Zealand citizens entering Australia can apply for a Special Category Visa (subclass 444) on arrival, subject to meeting certain health and character requirements, which gives them special privileges with regard to their stay, study, and work in Australia: Department of Home Affairs, ‘New Zealand Citizens’ (undated) <https://www.homeaffairs.gov.au/trav/life/new-> accessed 7 May 2018; Department of Home Affairs, ‘Special Category Visa (Subclass 444)’ (undated) <https://www.homeaffairs.gov.au/trav/visa-1/444-> accessed 7 May 2018. 284 Michael McGowan, ‘Turnbull Says He Will Consider NZ Refugee Deal Only after US Resettlements’ The Guardian (5 November 2017) <https://www.theguardian.com/australia-news/2017/nov/05/kevin-andrews-breaks-ranks-with-coalition-over-new-zealand-refugee-deal> accessed 7 May 2018. 285 David Speers, Interview with Peter Dutton, Minister for Immigration and Border Protection (Sky News, 16 November 2017). 286 ibid. 287 Paul Karp and Eleanor Ainge Roy, ‘New Zealand Seeks Deal with Australia to Resettle Manus and Nauru Refugees’ The Guardian (17 November 2017) <https://www.theguardian.com/australia-news/2017/nov/17/new-zealand-and-png-could-do-deal-on-refugees-peter-dutton-says> accessed 7 May 2018. 288 Colin Packham, ‘Australia Should Accept New Zealand Offer to Resettle Refugees: UNHCR’ (Reuters, 14 November 2017) <https://www.reuters.com/article/us-australia-asylum/australia-should-accept-new-zealand-offer-to-resettle-refugees-unhcr-idUSKBN1DE01J> accessed 7 May 2018. 289 Commonwealth of Australia, Parliamentary Debates: Senate (Canberra, 29 November 2017) 9243–44; Commonwealth of Australia, Parliamentary Debates: House of Representatives (Canberra, 4 December 2017) 12396–413. 290 Samantha Maiden and Paul Kelly, Interview with Peter Dutton, Minister for Immigration and Border Protection (Sky News, 10 December 2017); Simon Benson and Rachel Baxendale, ‘New Zealand PM Jacinda Ardern Defiant on Asylum-Seeker Offer’ The Australian (24 January 2018) <https://www.theaustralian.com.au/national-affairs/new-zealand-pm-jacinda-ardern-defiant-on-asylumseeker-offer/news-story/1637ac65bf82346611ec22f986b35fca> accessed 7 May 2018. 291 Speers (n 285). 292 Maiden and Kelly (n 290); Eddie McGuire, Interview with Peter Dutton, Minister for Immigration and Border Protection Triple M (6 December 2017). 293 AAP, ‘Asylum Seekers: Jacinda Ardern Bypasses Peter Dutton over Nauru’ The Australian (20 August 2018) <https://www.theaustralian.com.au/national-affairs/immigration/asylum-seekers-jacinda-ardern-bypasses-peter-dutton-over-nauru/news-story/167a8be7738e4ba3253b689836c57a70?login=1> accessed 5 September 2018. 294 Michigan Guidelines (n 14); Foster (n 16) 284–85; UNHCR, Protection Policy Paper (n 15); UNHCR, Guidance Note (n 15). See also UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Sweden’, UN doc CCPR/CO/74/SWE (24 April 2002) 4. 295 Michigan Guidelines (n 14) para 15. 296 ibid para 14. 297 UNHCR, UNHCR Factsheet (n 233) 1. 298 ibid 2. © The Author(s) (2019). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Protection Deficit: The Failure of Australia’s Offshore Processing Arrangements to Guarantee ‘Protection Elsewhere’ in the Pacific
JF - International Journal of Refugee Law
DO - 10.1093/ijrl/eez030
DA - 2019-12-31
UR - https://www.deepdyve.com/lp/oxford-university-press/protection-deficit-the-failure-of-australia-s-offshore-processing-VL1qub5FOF
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -