Transfer of asylum seekers to third countries
Updated 6 January 2016
In August 2012 the Australian Government introduced a third country processing regime for asylum seekers who come to Australia by boat, without a valid visa. There are many aspects of this regime which may lead to breaches of Australia’s human rights obligations.
The third country processing regime
Following the release of the report by the Expert Panel on Asylum Seekers on 13 August 2012, the Australian Government introduced a system of third country processing for asylum seekers. Under this system, asylum seekers who arrive by boat without a valid visa must be transferred to a third country as soon as is reasonably practicable, unless the Minister for Immigration decides otherwise.
In order to implement this system, the Federal Parliament passed amendments to the Migration Act 1958 (Cth) and legislative instruments designating Nauru and Papua New Guinea (PNG) as ‘regional processing countries’. Under the Migration Act certain documents must be tabled with the designations of 'regional processing countries', including a statement of reasons from the Minister as to why he/she thinks it is in the national interest to designate the country, and the advice the Australian Government received from the UN High Commissioner for Refugees about the designation. The designation documents for Nauru (pdf) were tabled on 10 September 2012, and the designation documents for PNG (pdf) were tabled on 9 October 2012.
The timeline below shows the development of the third country processing system:
- 13 August 2012 - system of third country processing introduced, initially only for asylum seekers who arrived in Australia at an ‘excised offshore place’ (such as Christmas Island).
- September 2012- Australian Government commenced transferring asylum seekers who had arrived in Australia by boat to Nauru.
- November 2012 - Australian Government commenced transferring asylum seekers to Manus Island in PNG.
- May 2013 - the third country processing system was extended to apply to all asylum seekers who arrive (without authorisation) by boat anywhere in Australia (that is, including the mainland).
- 19 July 2013 - Australian Government announced a Regional Resettlement Arrangement (RRA) with the Government of PNG, and on 6 August 2013 the Australian Government entered into a new Memorandum of Understanding (MOU) with PNG to support the RRA. Under the RRA and MOU, asylum seekers arriving unauthorised by boat to Australia after 19 July 2013 will be transferred to PNG for processing under PNG law, and if found to be refugees they will be resettled in PNG, rather than Australia. If found not to be refugees they will be returned to their country of origin or a country where they have a right of residence.
- 3 August 2013 - Australian Government signed a new MOU with Nauru which provides that the Nauruan Government will enable individuals whom it has determined are in need of international protection to settle in Nauru, ‘subject to agreement between Participants on arrangements and numbers’.
- September 2014 - Australian Government signed a Memorandum of Understanding with the Government of Cambodia that would allow asylum seekers who have been transferred by Australia to Nauru and recognised by the Nauruan Government as refugees to be resettled in Cambodia.
On 30 December 2015 there were 537 asylum seekers (including 68 children) in the 'regional processing centre' in Nauru, and 922 adult male asylum seekers in the centre on Manus Island.
Human rights concerns about sending asylum seekers to third countries
Seeking asylum in Australia is not illegal. In fact, it is a basic human right. All people are entitled to protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia.
Parliamentary Joint Committee on Human Rights’ Report
In June 2013 the Australian Parliamentary Joint Committee on Human Rights expressed concern about the ‘absence of legally-binding requirements relating to minimum conditions in regional processing facilities’ in Nauru and on Manus Island. The Committee considered that the Australian Government had not demonstrated that the conditions were consistent with the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Committee found that the cumulative effect of the third country processing arrangements was likely to have a significant impact on the physical and mental health of asylum seekers, contrary to the right to health, and the prohibition against degrading treatment.
The Parliamentary Joint Committee on Human Rights’ full report is available here.
National Inquiry into Children in Immigration Detention 2014
In 2014 the Commission conducted the National Inquiry into Children in Immigration Detention. The Commission made the following findings regarding Australia’s transfer of child asylum seekers to Nauru:
- children on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress
- the inevitable and foreseeable consequence of Australia’s transfer of children to Nauru is that they would be detained in breach of article 37(b) of the Convention on the Rights of the Child
- Australia transferred children to Nauru regardless of whether this was in their best interests, in breach of article 3(1) of the Convention on the Rights of the Child.
In addition the Commission raised serious concerns that the conditions in which children are detained on Nauru are in breach of the Convention on the Rights of the Child, articles 16(1), 19(1), 20(1), 24(1), 27(1), 27(3), 28, 31, 34 and 37(a).
Moss Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru
In October 2014 the Minister for Immigration and Border Protection announced a review by Philip Moss into allegations relating to conditions and circumstances at the Centre in Nauru.
The Moss Review confirmed many of the Commission’s concerns about the safety of the children in the Centre in Nauru. It found that ‘there were both reported and unreported allegations of sexual and other physical assault’ in relation to children. It also found that the ‘marquee accommodation’ in Nauru presents ‘significant personal safety and privacy issues’ and the ‘lack of privacy may be a factor in the sexualised behaviours of some children in the Centre through observing adult sexual activity.’
The Moss Review also found that between October 2013 and October 2014, 17 children engaged in self-harm (including one attempted hanging). The youngest child involved in self-harm was an 11 year old.
Visit to Nauru by the UN Subcommittee on the Prevention of Torture
The UN Subcommittee on the Prevention of Torture visited Nauru on 4-6 May 2015. During its visit, the Subcommittee visited the regional processing centre where asylum seekers who had been transferred from Australia were detained. The Subcommittee commented on the pressing need for Nauru to establish a monitoring body to address the needs and situation of people detained on the island. On 11 December 2015 the Subcommittee provided to the Nauruan Government a confidential report containing its findings from the visit.
Report of the Senate Select Committee
On 26 March 2015 the Senate established the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru. The Committee received 101 submissions, and conducted 4 public hearings, including with the Department and key service providers for the RPC in Nauru. In its final report released on 31 August 2015, the Committee concluded that ‘the RPC in Nauru is neither a safe nor an appropriate environment for children and that they should no longer be held there.’ The Committee recommended that the Government remove all children and their families from the RPC in Nauru as soon as possible. The Select Committee also expressed concerns about the level of accountability and transparency that applied to the operation of the RPC in Nauru.
The Select Committee's full report is available here.
The Commission's position
In the Commission’s view, all people who arrive in Australia and make claims for asylum should have those claims assessed on the Australian mainland through the refugee status determination and complementary protection system that applies under the Migration Act. If they are found to be owed protection, they should be granted a Permanent Protection Visa and allowed to live in Australia.
The Commission holds serious concerns that the system of third country processing creates a significant risk that Australia may breach its human rights obligations. In particular, the Commission has concerns about:
- the potential for breaches of Australia’s non-refoulement obligations
- the potential that asylum seekers will be subjected to arbitrary detention
- conditions for asylum seekers on Nauru and Manus Island
- the detention of child asylum seekers
- the impact on families, including potential separation
- the situation of unaccompanied children
- the lack of robust independent monitoring mechanisms.
For further information, see the following Commission publications:
- The Forgotten Children: National Inquiry into Children in Immigration Detention 2014 (2015) (see Chapter 12: Children in detention in Nauru)
- Asylum seekers, refugees and human rights: snapshot report 2013
- Tell Me About: Children in immigration detention in Nauru (June 2015)
- Human rights issues raised by the third country processing regime (March 2013)
- Submission to Inquiry into the responsibilities of the Commonwealth Government in connection with the management and operation of the Regional Processing Centre in Nauru (April 2015)
- Submission to the Inquiry into the incident at the Manus Island Detention Centre from 16 February to 18 February 2014 (May 2014)
- Submission to the Examination of the Migration (Regional Processing) package of legislation (January 2013)
- Submission to the Inquiry into the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (December 2012)
- Submission to the Inquiry into the Migration Amendment (Health Care for Asylum Seekers) Bill 2012 (25 October 2012)
- Submission to the Expert Panel on Asylum Seekers (2012)
- Australian Government’s third country processing regime: what are the human rights implications? Speech delivered to the Refugee Advice and Casework Service by Commission President, Professor Gillian Triggs) (6 June 2013)
- Current issues Australia faces in relation to its treatment of refugees, speech delivered to the United Nations Association of Australia (WA Division) by Commission President, Professor Gillian Triggs (24 October 2012)