Offshore processing: Australia's obligations with respect to asylum seeker children who may be sent to Nauru

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This factsheet sets out Australia’s responsibilities under international law with respect to asylum seeker children who may be sent to Nauru to have their protection claims processed. It should be read together with the factsheet on Australia’s responsibility under international law for asylum seekers and refugees in Nauru and Papua New Guinea.1 These two factsheets are part of a series on offshore processing, which also includes factsheets on conditions in the offshore detention centres, refugee status determination in Nauru and PNG, and an In Focus brief on the resettlement of refugees from Nauru to Cambodia.2


 

  • 1. Andrew & Renata Kaldor Centre for International Refugee Law, ‘Factsheet: Offshore Processing: Australia’s Responsibility for Asylum Seekers and Refugees in Nauru and Papua New Guinea’, 8 April 2015, http://www.kaldorcentre.unsw.edu.au/sites/default/files/State%20responsi....
  • 2. All publications are available on the website of the Andrew & Renata Kaldor Centre for International Refugee Law, at http://www.kaldorcentre.unsw.edu.au/publications. The In Focus brief is available at http://www.kaldorcentre.unsw.edu.au/news/focus-resettlement-refugees-nau....
  • 3. UN Convention on the Rights of the Child (CROC), art. 4 (emphasis added).
  • 4. UN Committee on the Rights of the Child, General Comment No. 14, [15(a)].
  • 5. Ibid., [6(c)], [14(b)].
  • 6. Ibid., [98].
  • 7. UN Human Rights Committee, Mohammad Munaf v Romania, CCPR/C/96/D/1539/2006, August 21, 2009, para. 14.2. See also: UN Human Rights Committee, Roger Judge v Canada, CCPR/C/78/D/829/1998, October 20, 2003, para. 10.6.
  • 8. CROC, arts. 27(1), 37(a).
  • 9. Ibid., arts. 19, 24, 36.
  • 10. Ibid., art. 39.
  • 11. International Covenant on Civil and Political Rights (ICCPR), art. 9(1); CROC, art. 37(b). See also: Migration Act, s. 4AA; UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012 (Detention Guidelines), Guideline 9.2.
  • 12. Immigration (Guardianship of Children) Act 1946 (Cth), s. 6.
  • 13. CROC, art. 18(1).
  • 14. Regional resettlement arrangement between Australia and Papua New Guinea, 19 July 2013, http://dfat.gov.au/geo/papua-new-guinea/Pages/regional-resettlement-arra....
  • 15. Karen Barlow, ‘First group of asylum seekers granted refugee status on Nauru’, ABC News, 23 May 2014, http://www.abc.net.au/news/2014-05-22/first-refugees-on-nauru-released-a....
  • 16. Sarah Whyte, ‘First two refugees move out of Manus detention compound to resettlement centre’, The Sydney Morning Herald, 21 January 2015, http://www.smh.com.au/federal-politics/political-news/first-two-refugees....  
  • 17. These obligations arise inter alia from the express prohibitions on refoulement in article 33(1) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Australia is also bound by an implicit prohibition on refoulement in articles 2, 6 and 7 of the ICCPR. According to the UN Human Rights Committee, ‘the article 2 obligation requiring that States Parties respect and ensure the [ICCPR] rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’: UN Human Rights Committee, General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004 (General Comment No. 31), [12].
  • 18. UN Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6, 1 September 2005 (General Comment No. 6), [27] (emphasis added). Article 6 of the CROC affirms the inherent right to life of each child and establishes States’ obligation to ‘ensure to the maximum extent possible the survival and development of the child’. Article 37 prohibits the torture, cruel, inhuman or degrading treatment or punishment, and arbitrary detention of children, and guarantees rights to children deprived of their liberty.
  • 19. At the Ministerial Meeting of States Parties to the Refugee Convention in 2001, States acknowledged ‘the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement’: Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (Geneva, 12-13 December 2001), [4]. The principle of non-refoulement is also described as the ‘cornerstone’ of international refugee law: UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, [5]; UNHCR Executive Committee, Conclusion No. 6 (XXVIII): Non-refoulement, 1977, [(c)].
  • 20. Although the Refugee Convention contains an exception to the principle of non-refoulement in article 33(2), such that a refugee will not be protected against refoulement if there are reasonable grounds for regarding him or her as a danger to the security of Australia, or if he or she has been convicted by a final judgment of a particularly serious crime and constitutes a danger to the Australian community, Australia’s non-refoulement obligations under the ICCPR and CAT apply to all people without exception. In this respect, human rights law has, in effect, limited the application of the article 33(2) exception: Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd ed., Oxford University Press, Oxford, 2007, pp. 243-244.
  • 21. Australia’s non-refoulement obligations are incorporated into domestic law to a limited extent through provisions of the Migration Act that allow for the grant of a protection visa to a person who is owed protection obligations under the Refugee Convention, or who would face a real risk of significant harm if removed from Australia (see, for example, s. 36 and the definition of ‘non-refoulement obligations’ in s. 5(1) of the Migration Act). For an analysis on how the incorporation of Australia’s non-refoulement obligations into domestic law is imperfect, and how the Migration Act may not provide protection to all those who are entitled to it under international law, see Part 5 of the joint submission of the Andrew & Renata Kaldor Centre for International Refugee Law and Associate Professor Michelle Foster to the Senate Legal and Constitutional Affairs Legislation Committee on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), available at: http://www.kaldorcentre.unsw.edu.au/sites/default/files/Final%20legacy%2....
  • 22. Under the Migration Act, all ‘unauthorised maritime arrivals’ and ‘transitory persons’ are barred from applying for a visa, including a protection visa, unless the Minister thinks that it is in the ‘public interest’ to lift this bar and exercises a non-compellable discretion to do so: ss. 46A, 46B. These sections effectively preclude asylum seekers who are in Australia having arrived by boat without a visa, or who have been transferred back to Australia from Nauru on a temporary basis, from accessing the visas that give effect to Australia’s non-refoulement obligations.
  • 23. Under section 72 of the Maritime Powers Act 2013, Australian maritime officers are authorised to take any person found on a vessel in or outside of Australian waters to any place in or outside of Australia. Section 75A provides that the exercise of this power is not invalid even if (a) there has been a failure to consider Australia’s international obligations; (b) there has been a ‘defective consideration’ of those obligations; or indeed (c) the taking of a person to that place is inconsistent with these obligations.
  • 24. For more information, see the joint submission of the Andrew & Renata Kaldor Centre for International Refugee Law and Associate Professor Michelle Foster to the Senate Legal and Constitutional Affairs Legislation Committee on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), available at: http://www.kaldorcentre.unsw.edu.au/sites/default/files/Final%20legacy%2....

    In the absence of effective domestic legal protections against refoulement for asylum seekers being considered for transfer to Nauru (and PNG), the Australian Government seeks to give effect to its non-refoulement obligations by conducting a ‘pre-transfer assessment’ (PTA) for each asylum seeker prior to removing him or her to a regional processing country. The Department of Immigration and Border Protection (DIBP) has described the PTA as being ‘used to consider whether appropriate support and services are available at the [offshore processing centre] and confirm that there are no barriers to the transfer occurring’. DIBP, Submission to the Australian Human Rights Commission’s National Inquiry into Children in Immigration Detention 2014, 30 May 2014, https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%..., p. 73.

  • 26. See, for example: Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention 2014, November 2014 (The Forgotten Children), [12.14].
  • 27. Ibid.; UNHCR, UNHCR Monitoring Visit to the Republic of Nauru - 7 to 9 October 2013, 26 November 2013, pp. 25-26.
  • 28. UNHCR, UNHCR Mission to the Republic of Nauru: 3-5 December 2012, 14 December 2012, pp. 2, 13-14; UNHCR, UNHCR Monitoring Visit to the Republic of Nauru - 7 to 9 October 2013, 26 November 2013, pp. 3, 25-27.
  • 29. In December 2014, the UN Committee against Torture expressed concern about Australia’s policy of transferring asylum seekers to the regional processing centres in Nauru and Papua New Guinea, and noted that ‘[t]he combination of the harsh conditions, the protracted periods of closed detention and the uncertainty about the future [in both centres] reportedly creates serious physical and mental pain and suffering’: UN Committee against Torture, Concluding observations on the combined fourth and fifth periodic reports of Australia, CAT/C/AUS/CO/4-5, 23 December 2014, [17]. Similarly, in response to a complaint about escalating violence in the regional processing centre on Manus Island, Papua New Guinea, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concluded in March 2015 ‘that the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment’: UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/28/68/Add.1, 6 March 2015, [19].
  • 30. For information about comparable suspensions in relation to Greece and Italy in the European context, see: Andrew & Renata Kaldor Centre for International Refugee Law, ‘Factsheet: Offshore Processing: Australia’s Responsibility for Asylum Seekers and Refugees in Nauru and Papua New Guinea’, 8 April 2015, pp. 5-6, http://www.kaldorcentre.unsw.edu.au/sites/default/files/State%20responsi....
  • 31. CROC, art 3(1).
  • 32. UN Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/GC/14, 29 May 2013 (General Comment No. 14), [1].
  • 33. Ibid., [11].
  • 34. The UN Committee on the Rights of the Child has noted that in a decision concerning an individual child, his or her interests should not be understood as being the same as those of children in general. Rather, ‘the best interests of a child must be assessed individually’: Ibid., [24], [32], [34].
  • 35. Ibid., [32].
  • 36. Ibid., [49].
  • 37. Ibid., [76].
  • 38. The UN Committee on the Rights of the Child has noted that ‘[t]he best interests of the child – once assessed and determined – might conflict with other interests or rights’: ibid., [39] (emphasis added).
  • 39. For example, the Full Court of the Federal Court of Australia in Wan held that the Administrative Appeals Tribunal ‘was required to identify what the best interests of Mr Wan's children required … and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration’: Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan), [32] (emphasis added). This passage was approved by Lady Hale giving the leading judgment for the Supreme Court of the United Kingdom in ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4 (ZH), [26].
  • 40. UN Committee on the Rights of the Child, General Comment No. 14, [36].
  • 41. Ibid., [39].
  • 42. Ibid., [37].
  • 43. For example, the Full Court of the Federal Court of Australia held in Wan at [32] that ‘[p]rovided that the tribunal did not treat any other consideration as inherently more significant than the best interests of [the] children it was entitled to conclude, after proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children.’ See also Lady Hale in ZH, [26] and [33].
  • 44. UN Committee on the Rights of the Child, General Comment No. 14, [97].
  • 45. Ibid.
  • 46. CROC, art. 4 (emphasis added).
  • 47. UN Committee on the Rights of the Child, General Comment No. 14, [15(a)].
  • 48. Ibid., [6(c)], [14(b)].
  • 49. Ibid., [98].
  • 50. UN Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights of all Children in the Context of International Migration, 2013, [72], [74].
  • 51. In the United Kingdom, this rule is recognised in the UK Home Office’s guidelines about processing asylum applications from children, which state that the best interests principle requires ‘a continuous assessment that starts from the moment the child is encountered and continues until such time as a durable solution has been reached’: United Kingdom Border Agency, Asylum Process Guidance: Processing an Asylum Application From a Child, 16 April 2013, https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil..., [1.3].
  • 52. Section 55 of the Borders, Citizenship and Immigration Act 2009 (UK) provides inter alia that the Secretary of State must make arrangements for ensuring that a range of functions relating to immigration and customs ‘are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom’. Statutory guidance in relation to this provision also states: ‘in accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children’: UK Border Agency, Every Child Matters: Statutory Guidance to the UK Border Agency on Making Arrangements to Safeguard and Promote the Welfare of Children, November 2009, https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil..., [2.7].
  • 53. Section 25(1) of the Immigration and Refugee Protection Act (Canada) provides that the Minister may exercise a discretion to grant permanent residence status to a foreign national ‘if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected’ (emphasis added).
  • 54. UNHCR, UNHCR Monitoring Visit to the Republic of Nauru - 7 to 9 October 2013, 26 November 2013, [105].
  • 55. UN Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 of the Convention. Concluding observations: Australia, CRC/C/AUS/CO/4, 28 August 2012, [31].

    The Committee ‘stresse[d] the need for [Australia] to pay particular attention to ensuring that its policies and procedures for children in asylum seeking, refugee and/or immigration detention give due primacy to the principle of the best interests of the child’,Ibid., [32].

  • 57. Ibid., [81(b)].
  • 58. DIBP, ‘Best Interests Assessment for transferring minors to an RPC (forming part of the Pre-Transfer Assessment)’, Version 1.4, 13 February 2014, http://www.immi.gov.au/About/foi/Documents/FA140201097.pdf.
  • 59. DIBP, BIA Form, p. 1. (emphasis added)
  • 60. Australian Human Rights Commission, The Forgotten Children, [12.15].
  • 61. UN Human Rights Committee, Mohammad Munaf v Romania, CCPR/C/96/D/1539/2006, August 21, 2009, para. 14.2. See also: UN Human Rights Committee, Roger Judge v Canada, CCPR/C/78/D/829/1998, October 20, 2003, para. 10.6.
  • 62. For more information, see: Andrew & Renata Kaldor Centre for International Refugee Law, ‘Factsheet: Offshore Processing: Australia’s Responsibility for Asylum Seekers and Refugees in Nauru and Papua New Guinea’, 8 April 2015, http://www.kaldorcentre.unsw.edu.au/sites/default/files/State%20responsi...
  • 63. For more information about these obligations, see: Andrew & Renata Kaldor Centre for International Refugee Law, ‘Submission to the Senate Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’, 30 April 2015, http://www.kaldorcentre.unsw.edu.au/sites/default/files/Select%20Committ....
  • 64. CROC, art. 3(2).
  • 65. Ibid., art. 27(1).
  • 66. Ibid., art. 6(2).
  • 67. Ibid., art. 37(a).
  • 68. Ibid., arts. 19, 24, 36.
  • 69. Ibid., art. 39.
  • 70. Ibid., art. 22.
  • 71. ICCPR, art. 9(1); CROC, art. 37(b). See also: Migration Act, s. 4AA; UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012 (Detention Guidelines), Guideline 9.2.
  • 72. UN Committee on the Rights of the Child, General comment No. 13 (2011) on the right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011, [37].
  • 73. Ibid., [46].
  • 74. In determining what is a safe environment, regard should be had to Australia’s obligation to ensure that children are only detained as a measure of last resort, for the shortest possible time, and never in circumstances where the detention is unlawful or arbitrary.
  • 75. CROC, art. 20(1) and (2).
  • 76. Immigration (Guardianship of Children) Act 1946 (Cth), s. 6.
  • 77. CROC, art. 18(1).
  • 78. Australian Human Rights Commission, The Forgotten Children, [12.15] (emphasis in original).
  • 79. UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, February 1997; UN Committee on the Rights of the Child, General Comment No. 6, [33].
  • 80. UNSW Human Rights Law Clinic, Andrew & Renata Kaldor Centre for International Refugee Law and UNSW Faculty of Arts and Social Sciences, Submission to the Australian Human Rights Commission National Inquiry into Children in Immigration Detention, June 2014, http://www.kaldorcentre.unsw.edu.au/sites/default/files/ahrc_submission_..., p. 14.
  • 81. For more information, see: Ibid.; Australian Human Rights Commission, The Forgotten Children, [10.5] and [12.9].
  • 82. Andrew & Renata Kaldor Centre for International Refugee Law, ‘Factsheet: Offshore Processing: Australia’s Responsibility for Asylum Seekers and Refugees in Nauru and Papua New Guinea’, 8 April 2015, http://www.kaldorcentre.unsw.edu.au/sites/default/files/State%20responsi....
  • 83. Andrew & Renata Kaldor Centre for International Refugee Law, ‘Submission to the Senate Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’, 30 April 2015, http://www.kaldorcentre.unsw.edu.au/sites/default/files/Select%20Committ....