Onshore processing: what it means for asylum seekers

Julia Gillard and Immigration Minister Chris Bowen after the High Court ruled the Malaysian Solution invalid. AAP

The Federal Government’s position on handling asylum seekers is in disarray.

The High Court has ruled its Malaysia Solution invalid and the Coalition has indicated it will not support moves to amend the Migration Act in order to make the offshore processing of asylum seekers possible.

Legal experts contend that the Opposition’s own solution - reviving the Nauru processing policy - may also be unworkable in light of the High Court ruling.

So until the Government can find support in the House of Representatives for its version of offshore processing, something that looks highly unlikely given the parliamentary arithmetic, asylum seekers who arrive by boat will be processed on Australian territory.

And in a development that could see more asylum seekers finding grounds to be successful with their cases, Federal parliament this week passed new regulations offering more protections to claimants.

The Conversation spoke to Monash University expert Maria O'Sullivan to find out the legal framework asylum cases will now be fall within.

Is it correct that Australia must process now process asylum seekers arriving by boat onshore?

Yes. The High Court invalidated the particular declaration made under Section 198a as they related to Malaysia. They did not rule definitively on Nauru or Papua New Guinea but the Solicitor-General’s advice was that transfer to those countries was also doubtful.

What are the different legal positions for those undergoing onshore processing to offshore?

With Chistmas Island, even though [asylum seekers held there] are offshore, the High Court did say last year that they are still entitled to natural justice, a very important protection. That involves the right to be heard in relation to any adverse allegations and judicial review from the courts.

But of course if they go to Malaysia they are subject to Malaysian domestic law. The same applies to Nauru – they cannot utilise our legal system and that is why there is such a need for the rights in Malaysia to be in accordance with international law.

We have what is called the Refugee Review Tribunal which is a merits review tribunal and any decision of the Department of Immigration can then be appealed to that tribunal and then on to the Federal and High Court eventually.

That is a very important review structure that obviously offshore people don’t get.

Will the new protections increase the number of claimants who are successful?

A lot of other countries do have complementary protection because the 1951 Convention on Refugees talks about persecution. That is quite a limited concept. You have to be persecuted because of a religion or your gender or some other sort of personal characteristic.

Many other countries say “You might be at risk of torture or other ill treatment”. This particularly came from the European context. It was recognised that you couldn’t return someone to a place where they are at risk of torture of other ill treatment.

That comes from a number of conventions, the Convention on Torture and the Covenant on Civil and Political Rights.

Before we had complementary protection, we did have Section 417 of the Migration Act which allows a person who has been rejected from the Refugee Review tribunal to appeal personally to the Minister for Immigration for exercise of personal discretion.

The guidelines that the minister has made in relation to this very personal discretion has incorporated things like the Convention against torture and the International Covenant on Civil and Political Rights.

It does mean now that it is a matter of legislation rather than personal discretion and that is an important improvement. I don’t think there is going to be great increase in the number of people who get some sort of status, be it refugee status or complementary protection status. There might be a slight increase, but now it is a more transparent and open procedure than just ministerial discretion.

As I understand it, this Section 417 discretion hasn’t been repealed, it is still under the Migration Act, so even if you are not going to be at risk of torture, and there is some special personal reason why you can’t go back to your country of origin, some compassionate reason, then the minister can still consider that.

Mainly, the complementary protection is to bring us in line with other countries which recognised that you shouldn’t return someone to a place where they might be subjected to torture.

Can you explain why the government has amended its changes to the Migration Act, in particular its need to include the phrase “national security”?

The national interest is more national security I would have thought. They are both very vague terms. The object clause in the Migration Act does talk about either the public or national interest and other statutes do refer to the public interest but they usually try and limit the criteria.

It is quite unusual to have a really wide discretion that says the minister can do something in the national interest.

Can Australia re-legislate for offshore processing without breaking the spirit, if not practice, of the refugee convention?

Other countries have tried to play around with the words of the 1951 Convention. For instance, there was the US trying to send asylum seekers back to Haiti in the 1980s and 1990s.

We are not the only country to try and evade our responsibilities but there is an argument that if you return someone, and take them to a place where they are not going to be protected under international obligations, that we are breaking our international obligations.

There is refoulement which is Article 33 (of the Refugee Convention) and that is considered to be the most important part of the convention. But often people forget that there are a lot of other sections in the refugee convention which talk about protections like access to courts, freedom of movement, education.

It is considered to be not sufficient to just not return someone, it is also considered to be important to give them protection and human dignity while they are in your country.

For example, Greece has been criticised in the EU because even though they don’t return people to countries of origin like Afghanistan, they have been criticised for not properly processing them. They detain them in sub-standard conditions and they don’t have enough detention centres so a lot of asylum seekers are homeless.

There is more to the convention that just not returning them to Malaysian or wherever their country of origin is.