This morning, those on Manus Island received a letter. They would not be coming to Australia, and they would not be able to stay in PNG. So what happens to them now?
Questions of constitutionality and humanity are inextricably linked to life on Manus Island. This morning, the PNG refugee crisis continues, with Josh Butler’s tweet addressing the controversial definition of a ‘refugee’ itself and how this affects displaced people’s access to justice:
“This letter is being given to some men on Manus – deemed not refugees, but recognised as at risk if returned to home country, PNG can’t deport them but say the men will stay in detention until they voluntarily go home. Can’t stay in PNG? Can’t go to AUS? Can’t go home – now what?
Asylum seekers v refugees
According to instruments of international law, an asylum seeker is an individual who is seeking international protection, however, their claim for asylum has not yet been granted/denied by the country in which he/she has submitted it. These people may flee due to war, poverty, violence, and natural or man-made disasters.
A refugee, on the other hand, is a person who has ‘fled their country of origin and is unable or unwilling to return because of a well-founded fear of persecution due to their race, religion, nationality, association with a social group or political opinion.’
Or, simply put: The individual’s safety is compromised in their country of origin because of a systematic, discriminatory attack. However, there are two subtle nuances between these definitions which become important when interpreting this letter:
- The fear of persecution must be well-founded – that is, the person needs to have experienced discriminatory persecution or be highly likely to experience it directly if they return.
- If the country is indiscriminately violent and unsafe, although a State’s treaty obligations may prevent it from deporting asylum seekers, this doesn’t mean that these people are automatically classified as ‘refugees’. Refugee status is only for those who are being targeted in their home country due to a particular attribute or affiliation.
In short: Not every asylum seeker is later deemed a refugee. However, all refugees are initially asylum seekers.
Regarding the above letter from the PNG Immigration & Citizenship Service Authority (ICSA), statistics tendered to the PNG Supreme Court last year show that 12.3% of detainees on Manus Island were not refugees because they lacked valid claims for protection. Before the detention centre was shut down in October of last year, there were 690 people in the facility. This means that the 85 people still dwelling in PNG who aren’t considered ‘refugees’ received this ICSA notice.
“As you are not a refugee, you do not have the right to remain in Papua New Guinea and your removal and detention orders remain in effect…You will never be permitted to go to Australia”.
Due to a dutiful adherence to legal definitions, this response is considered both lawful and just.
Likewise, PNG has abided its treaty obligations by assessing whether there is a real risk of torture, cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty if the asylum seeker was to return home.
“The assessment found that there is a real risk of one or more of these events and therefore the Government of PNG will not remove you to your home country”
From a legal standpoint, no rights have been violated, no obligations have been ignored. However, where does this leave the asylum seekers?
“You can continue to access assistance to voluntarily return to your home country”
Our responses to asylum seekers are just according to the law, but are they fair? Are there better ways to deal with the issue that may, in turn, lead to economic prosperity and highly skilled global workforce?
These are the questions we’ll carry with us this 2018.