In September 2016, the United States agreed to consider resettling refugees held in Australia’s offshore processing centres in Nauru and on Manus Island in PNG, as well as those who had been transferred back to Australia for medical reasons. The agreement was made by then Australian Prime Minister Malcolm Turnbull and US President Barack Obama. While US President Donald Trump publicly criticised the deal after taking office, the US has continued to honour it under the Trump and Biden administrations.

The US is not a party to the 1951 Convention relating to the Status of Refugees, but did accede to the 1967 Protocol to the Convention, which requires it to apply the provisions of the Refugee Convention. The US is a longstanding resettlement country. While the refugee intake was significantly reduced under the Trump administration, it has been raised again by the Biden administration, with a resettlement cap of 62,500 for Fiscal Year 2021 and 125,000 for Fiscal Year 2022.

The bilateral agreement between Australia and the US was agreed at the executive level. UNHCR is not a party to it, and it did not require parliamentary approval. Former US Deputy Secretary of State Heather Higginbottom has stated that the US made the agreement to ‘relieve the suffering of these refugees’. While the terms of the agreement have never been made public, it appears that the US undertook to consider resettling up to 1,250 refugees. A leaked transcript of a telephone call between Prime Minister Turnbull and President Trump in January 2017 suggested that the US had agreed to consider resettlement, but was ultimately not obliged to resettle ‘any’ of the refugees. In return, Australia agreed to resettle refugees from Costa Rica, although there was some debate at the time about whether these two commitments constitute a ‘refugee swap’.

UNHCR undertook to ‘endorse referrals made from Australia to the United States, on a one-off, good offices, humanitarian basis, in light of the acute humanitarian situation.’ Refugees are vetted by US officials and, under the Trump administration, were subject to ‘extreme vetting’. The US is paying for the costs of resettlement, including flights and accommodation.

A first group of 54 refugees were resettled in the US in September 2017. As of 30 June 2021, 968 refugees had departed for the US (398 from Nauru, 420 from PNG and 150 from Australia), including families and single adults from a range of nationalities. Many others have applications pending or have been approved and are awaiting departure.

As of 30 June 2021, there were 108 refugees and asylum seekers in Nauru and 125 in PNG. These 233 people, as well as a further 1223 refugees and asylum seekers who had been transferred back to Australia to receive medical treatment or accompany others receiving treatment, are still awaiting a durable solution or other humanitarian outcome.

UNHCR, welcomed the agreement as a ‘much-needed, long-term solution for some refugees who have been held in Nauru and Papua New Guinea for over three years and who remain in a precarious situation.’ However, it expressed grave concern for those who had not been found to be refugees and remained vulnerable and noted that its endorsement of referrals for resettlement ‘[did] not alter Australia’s obligations under international law, including the right to seek asylum irrespective of the mode of arrival’.

Amnesty International described the announcement as ‘an extreme step in shirking responsibility by the Australian Government’.  While noting that the US would give resettled refugees a genuine chance at restarting their lives in a safe place, Amnesty argued that Australia should be ‘leading by example’ given the record levels of global displacement.

Save the Children welcomed the plan as ‘an opportunity to restore hope and provide a pathway towards a safe and prosperous future for refugees who have spent years languishing on Nauru and Manus Island.’

In July 2017, the UN High Commissioner for Refugees criticised Australia’s refusal to honour an understanding that vulnerable refugees with close family ties would be allowed to settle in Australia in exchange for UNHCR’s assistance in the resettlement of refugees to the US. 

A number of overseas commentators expressed concern that US resettlement places were being taken up by refugees who were Australia’s responsibility as a matter of international law.