UNACCOUNTABLE TO ANYONE:
THE ‘PACIFIC SOLUTION’

The inquiry also heard evidence about the refugee assessment process for asylum seekers who arrived on Australian territory excised from the migration zone or who were intercepted at sea under Operation Relex between 2001 and 2003. They were taken to detention centres on Nauru and Manus Island, managed on behalf of the Howard government by the International Organisation for Migration (IOM), and processed under legislation introduced in the wake of the Tampa incident.205 The legislation rendered them unable to apply for an Australian protection visa, although the immigration minister can allow such an application if it is deemed in the public interest.206

During this period, 1524 asylum seekers were taken to offshore detention centres and 23 babies were born there. The overwhelming majority were Afghans or Iraqis. Some processing on Nauru was initially undertaken by UNHCR, although it quickly ended its involvement.207 Most asylum seekers were assessed by Department of Immigration officials. Those rejected by the department were unable to access the RRT or Australian courts. Their only option for review was for their case to be reconsidered by another departmental officer.

Refugee lawyer Julian Burnside has argued that the term ‘offshore processing’ is misleading and that it amounts to a repudiation of Australia’s obligations under the Refugee Convention:

When Department of Immigration officials do the ‘processing’, they will not be applying Australian law; they will not be applying Nauruan law; they will not be applying any domestic legal rules at all. They will simply be looking to see if an individual satisfies the test under the Convention. They will therefore not be amenable to correction by Australian courts or Nauruan courts … the net result is Australian public servants operating entirely outside the legal system in determining the fate of human beings who have come to Australia and asked for protection … that is an attack on the rule of law. You should not remove people from the protection of the Australian legal system, have them processed by Australian officials and have those officials unaccountable to anyone …208

In a submission to a Senate Inquiry, immigration and refugee law lecturer Angus Francis argued the process failed to protect asylum seekers from being returned to countries where they faced danger. He concluded that key elements of a fair process were absent, including:

… a right of appeal to an independent body, the right to legal assistance and representation at all stages, special consideration given to unaccompanied children, access to impartial and qualified interpreters, an opportunity to present evidence of his or her personal circumstances and country of origin information, and a reasoned, written decision deciding the claim.209

Between 2001 and 2004, the period during which many asylum seekers on Nauru and Manus Island had their claims rejected by the Immigration Department, the RRT overturned onshore departmental decisions for Afghans and Iraqis at an average rate of 61 per cent and 53 per cent respectively.210

The inquiry heard that many of the flaws in the refugee determination process for asylum seekers on Nauru and Manus Island were the same as those for applicants assessed onshore. They included the department obstructing asylum seekers’ access to legal advisors, using interpreters speaking different languages, inadequately researching asylum seeker claims and treating unaccompanied minors as adults.

Obstructing Legal Advice

In December 2002, Aladdin Sisalem arrived on Thursday Island, then within Australia’s migration zone, and asked for asylum. He was removed to Manus Island by Australian officials and told to ask the Papua New Guinea government for asylum. According to refugee lawyer Julian Burnside, the government argued in court that he had no asylum claim in Australia because:

… the only way you can seek asylum is by filling out form 866, and although he said he wanted to seek asylum, he didn’t ask for form 866. Therefore the minister does not have any obligation to consider his claim for a protection visa. And there’s no point giving him a form 866 now, because they can only be completed in Australia.211

In April 2004, three Afghan asylum seekers including Mohammad Arif Ruhani, who had travelled on the Tampa and been held on Nauru since December 2001, instituted proceedings in the Supreme Court of Nauru for release on the grounds that they had been brought to Nauru and were being held there against their will. The Australian government paid Nauru’s legal costs engaging Peter Hanks QC, barrister Stephen Lee and Australian government solicitor Tony Fell to argue on Nauru’s behalf, at the same time claiming it had ‘nothing to do with the matter’, and that legal representation in the case was up to Nauru.212

Lawyers acting for the asylum seekers, Julian Burnside QC, solicitor Eric Vadarlis and two other lawyers had visas to travel to Nauru. However, when they tried to board the same plane as the lawyers paid for by the Australian government, they were told that Nauru’s justice minister and president had ordered that they not be allowed to board on the grounds there was sufficient legal representation for the asylum seekers on Nauru. Julian Burnside told Lateline:

It’s farcical and it’s just transparently corrupt … The last thing they want is for us to win because if they win, Australia stops paying them tens of millions of dollars to lock up 84 children and 200 adults who have fled the Taliban or Saddam Hussein.213

He later told The Age:

It is interesting Mr Hanks was only retained to go to Nauru after we had been in court on Friday (morning) and, by 4pm, he had visa, application for admission to practice in Nauru, and was about to arrange a ticket. This same process had taken us about six weeks.214

The asylum seekers’ case was dismissed by the Supreme Court of Nauru. The High Court of Australia later refused an appeal by the asylum seekers against the decision, a judgement which effectively endorsed the ‘Pacific Solution’.215

The sheer distance between Australia and offshore detention centres also made it difficult for lawyers to assist asylum seekers held there. In 2006, Julian Burnside secured permission to visit Nauru to assist two other asylum seekers, but said:

It costs an arm and a leg to get there and there’s a very limited number of pro bono lawyers who will be able to afford time off work and the airfares to get to Nauru. I managed to get there for the first time just a couple of weeks ago, but it cost me two days away from chambers, and $5000 in airfares just to get a few hours with my clients. That’s absurd.216

In 2007, former immigration minister Philip Ruddock told the radio program PM that asylum seekers should not consider legal help a right:

I suspect that most asylum seekers around the world, when claims are made, are not represented by lawyers. The idea that every asylum seeker, wherever they are in the world, is entitled to Australian legal representation as a right I think flies in the face of what is either reasonable or possible.217

The only legal representative allowed to go to Nauru during the pre-Cornelia Rau period was migration agent Marion Le, who represented 282 of the 284 people held there, all of whom were eventually granted visas. Marion and two assistants processed the cases without funding during an 18 month period. However, she told the inquiry that she secured permission to go accidentally:

Amanda Vanstone basically recognised me publicly, whether by accident I don’t know, but she said Marion Le is the representative of these people on Nauru. That was news to me at that time, but I leapt up and said ‘OK, if that’s what she said, then I want to go there.’

Interpreting

Marion Le told the inquiry that Kurds held on Nauru had been made to use an Arabic interpreter despite the two languages being completely unrelated:

They didn’t speak any Arabic. One person spoke a bit and he was asked to translate so they had no proper assessment and at the end of the day three of them were accused of being non-cooperative with the interviewer because they sat there and said, ‘This is a joke, we don’t speak this language and you are asking us to tell you about our horrific history and we won’t go through with it.’

Researching

Marion Le also told the inquiry that Department of Immigration officers assessing asylum seekers failed to check easily verifiable claims, resulting in their prolonged detention:

There was a man who sewed his lips. If you met him you would be amazed that he would be driven to that because he worked with the UN and had all his documents with him and they just totally ignored his documentation. He had the contact numbers of all the UN and World Vision people he had worked with. I contacted World Vision here, who contacted their officers, who said he’s our colleague. And the UN people said we have been wondering what happened to him. And there he was stuck on Nauru.

In another case, an unaccompanied minor who was held on Nauru but had family in Australia was disbelieved on the basis of ‘body language’ when a phone call could have confirmed his story:

He said that one of his brothers was a uni student in Australia and another one was in prison in Iraq. A file note next to ‘in prison’ stated in block capitals TELLING LIES! BODY LANGUAGE. This is obviously a totally subjective statement by the DIMIA officer, which once placed on the file influenced all other decision-makers who read it. Did the department, saying they don’t believe his family connections, ring that brother in Australia? No. And did they ever answer that brother’s letters? No.

Unaccompanied Minors

A study into unaccompanied minors raised concerns about the way the department determined the age of children where this was in doubt. It found assessments appeared to have relied heavily on physiological factors including bone density testing and appearance, without consideration of psychological maturity or the child’s personal, family and cultural background.218 Marion Le told the inquiry about disturbing practices involving unaccompanied children held on Nauru:

I think I had six hours sleep over the five days I was there. I worked day and night to interview as many people as I could. We were there very late one night and seven young people came in. I looked and I thought, My God, how old are you? One said I think I’m 14. This is 2004. They had been over three years and he thought he was 14.

On at least one of the files was written a file note from a DIMIA woman officer. ‘I have been asked to change this child’s age to make him over 18 and because I am asked I am doing it, but I do not agree.’ That night I was so tired, I looked at these kids and I just picked up the files and threw them against the wall in total anger. I am guilty of not making a statement about that publicly because I wanted to ensure all of the people on Nauru got off. If I had gone out and talked about the abuses of process we were seeing they wouldn’t have come here. I would have been stopped going to Nauru.

She also told the inquiry about a 16-year-old boy who had been interviewed and rejected as a refugee by a UNHCR assessor, a decision that was later reaffirmed by the Department of Immigration:

What I find most offensive about this interview is that the applicant, still legally a child, was repeating again and again that he did not want to join a group that might force him to kill innocent people and the interviewer was totally unsympathetic to the situation. I’m particularly concerned about comments like ‘What’s the problem, why is that a problem?’ I don’t hold DIMIA unaccountable for that because that was on the record. We found it; DIMIA should have found it when they got the files from UNHCR.

In September 2005, the International Organisation for Migration psychiatrist treating the 27 asylum seekers remaining on Nauru warned the government they were at high risk of committing suicide. Shortly afterwards, 25 of them were granted visas with the government making no mention of the psychiatric advice.219

The Howard government claimed the fall in boat arrivals was a result of its offshore processing system. However, UNCHR figures220 show that in the five years to 2006, applications to developed countries have more than halved. In 2006, Denmark, New Zealand, the United Kingdom, Norway and France recorded their lowest level of applications in decades.221

In August 2003, a Senate committee recommended that the Pacific Solution should be abandoned, with a unanimous view amongst government and nongovernment senators that the detention centres on Nauru and Manus Island should close.222 In February 2008, the newly elected Labor government closed them, but its policy remained to process asylum seekers who did not reach the mainland outside the Australian legal system on Christmas Island, 2600 kilometres from Perth.