Ms Azadeh Dastyari*

Faculty of Law, Monash University

"Offshore processing: an Australian phenomenon?"

• Abstract:
  
  In September of 2001, a ‘national crisis’ caused by a perceived  influx of asylum seekers led the Australian government to negotiate a series of hasty regional arrangements with its pacific neighbours that led to the so-called ‘pacific solution’. Under the ‘pacific solution’ all asylum seekers who land in an excised territory are detained and processed in Nauru or Papua New Guinea’s Manus Island. Although a bill seeking to allow the processing of all asylum seekers arriving by boat in Nauru was withdrawn in August of 2006, areas of excised territory have been extended  by the Coalition government over the years to the extent that it is now almost impossible for the majority of asylum seekers to access Australian territory.
       
  Australia is not the first country to detain asylum seekers heading for its soil in neighbouring countries. In 1981, twenty years prior to the Tampa crisis in Australia, the then president of the United States, Ronald Regan declared that asylum seekers had become “a serious national problem detrimental to the interests of the United States”. The US adopted a policy of interdiction of Haitian asylum seekers which led to the detention and processing of asylum seekers on boats and in the US military base of Guantanamo Bay, Cuba. The United States also negotiated hasty agreements with its Caribbean and South American neighbours to share the perceived burden of those seeking protection.
       
  This paper will compare the offshore processing regimes of the United States and Australia. It will show that 'Offshore processing is in fact not an Australian Phenomenon and that Australia’s use of offshore processing is an alarming extension of a tried and failed policy.
   

On 26 August 2001, the Australian government refused a Norwegian registered container ship, the MV Tampa, permission to dock and land on the Australian territory of Christmas Island. The ship had on board 433 people it had rescued at sea and it was believed that the ‘rescuees’(i) were asylum seekers. The Australian government prevented any of the occupants from disembarking by deploying 45 Special Air Service (SAS) troops to board and take control of the ship when it came within four nautical miles of Australian territory. The Prime Minister declared that Australia “was not going to allow these people to be processed on Australian soil or in Australian territory”.(ii)

The ‘Tampa’ incident led to bi-partisan support for a raft of new legislation in the Federal parliament(iii) and was the genesis of the so-called ‘Pacific solution’.(iv) Under the ‘Pacific solution’, certain Australian territory can be ‘excised’ from the migration zone.(v) Any asylum seekers who land in an excised place can be taken to a ‘declared country’(vi) for processing. Following the Tampa incident, the Department of Foreign Affairs and Trade had formal consultations with Nauru, Papua New Guinea (PNG), Kiribati, Fiji and Palau  and informal discussions with Tuvalu, Tonga and French Polynesia, in the hope that Pacific countries would agree to detention centres on their shores for third country processing of Australia’s asylum seekers.(vii) However, only the Republic of Nauru and PNG agreed to host Australia’s asylum seekers and are currently recognised as ‘declared countries’.

Since 2001, more than 4,891 islands have been excised from Australian territory. Christmas Island, Ashmore Island and Cartier Islands were excised from Australian territory on 8 September 2001. Cocos (Keeling) Islands were excised on 17 September 2001. In July 2005, the Coalition government used its new Senate majority to excise Coral Sea Islands Territory, Queensland islands north of latitude 21 degrees south, Western Australian islands north of latitude 23 degrees south and Northern Territory islands north of latitude 16 degrees south. Areas of excised territory have been expanded by the Federal government over the years to the extent that it is now almost impossible for the majority of asylum seekers to access territory to which the Migration Act 1958 applies.

Since the introduction of the ‘pacific solution’ in 2001 only 57 individual asylum seekers travelling on 2 boats have been able to land in an area that has not been excised from the migration zone. The federal government responded strongly to the arrival of the boats and attempted to change existing laws pertaining to excised territories on both occasions.

On 4 November 2002, the boat carrying 14 Kurdish asylum seekers from Turkey reached Melville Island. A few hours after the arrival of the asylum seekers, the government retrospectively excised Melville and many other islands off the northern coastline from the migration zone. The Senate disallowed the regulations less than two weeks after they were introduced, however, the government argued that the Kurdish asylum seekers had not validly applied for protection because the excision order was valid at the time of their arrival. Melville Island is now excised territory as a result of the 2005 excisions.

The second group to land in territory that was not excised from the migration zone were 43 West Papuans fleeing the Indonesian territory of West Papua in January 2006. The decision to grant refugee status to 42 members of this group caused a major international incident, with Indonesia objecting vehemently and withdrawing its ambassador from Australia. The coalition government attempted to respond swiftly to the concerns expressed by Indonesia. A Bill was introduced in the House of Representatives on 11 May 2006 that would see all asylum seekers who arrived by boat processed offshore.(viii) The Bill was ultimately withdrawn on 14 August of 2006 due to a lack of support from key coalition senators. The withdrawal of the Bill has not changed Australia’s policy of offshore processing. Australia continues to detain and process asylum seekers that land in ‘excised territories’ in offshore processing centres. 

Australia’s adoption of offshore processing was justified at the time of the Tampa ‘crisis’ as a reaction to a perceived national emergency. The Prime Minister John Howard declared on 28 August 2001:

• We appear to be losing control of the flow of people coming into this country. Now we have decided with relation to this particular vessel to take a stand.(ix)

Australia hosts relatively small numbers of refugees and asylum seekers in comparison with many other nations.(x) In August 2001, the month of the Tampa incident only 969 asylum seekers made refugee applications in Australia. In comparison, 9,138 refugee applications were submitted in Germany in August 2001; 8,600 in the United Kingdom; 4,370 in the United States and 4,370 in Canada.(xi)

 Australia continues to process asylum seekers in third countries and has even attempted to promote the ‘pacific solution’ internationally. The then Minister for Immigration, Philip Ruddock, used the meeting of United Nations High Commissioner (UNHCR), Executive Committee in early October 2002 to advocate Australia’s use of offshore processing.(xii) There has been some interest in what has come internationally to be known as the ‘Australian model’ especially from the UK, Denmark, Netherlands and Italy.(xiii)

Third country processing was not an original idea unique to Australia in 2001. Even the language used by the Australian government to justify offshore processing in 2001 had been used before. In fact, the ‘Australian model’ as it has come to be known was never truly Australian. It was greatly influenced by the United States practice of third country processing in Cuba in the 1990s.

Haitian asylum seekers and US policy under the Reagan Administration

In 1981, twenty years prior to the Tampa ‘crisis’ in Australia, the then president of the United States, Ronald Regan declared that asylum seekers had become “a serious national problem detrimental to the interests of the United States”.(xiv) He was referring to the more than 24,530 Haitians who had come to the United States by boat in 1980 alone.(xv)

The United States had received undocumented Haitians for some years. 7, 837 undocumented Haitians reached the United States between 1972 and 1979. A further 65,000 Haitians were intercepted by the United States en-route to the US between 1981 and 1993.(xvi) The people fleeing Haiti for the United States did so and continue to do so, for a myriad of reasons including political and racial persecution, destitution and environmental disasters.

Haiti is the poorest country in the western Hemisphere with 80% of the population living in abject poverty. 50% of Haiti’s wealth is owned by 1% of its population and is concentrated in the hands of French speaking Mulattos. The black, Creole-speaking majority make up the country’s poor. Human Rights Watch has identified violence, lawlessness, corrupt judiciary, policy abuse and instability as some of the human rights concern in the country.(xvii) Haiti is prone to natural disasters including hurricanes and earthquakes and has also been plagued by political instability.

Haiti’s fate has been much influenced by its close, powerful neighbour the United States. In 1915, US troops seized Haiti's gold deposits, revamped the constitution and disbanded the army. They used prison labour to implemented public works, building hospitals, clinics and roads. Rebellions against US occupation were brutally quashed killing thousands of Haitians.

The US pulled out of Haiti in 1934 and left behind a shattered economy, devastated infrastructure and racial tension. Between 1956 and 1983, Haiti was ruled by the dictatorships of Dr François 'Papa Doc' Duvalier and later his son Jean Claude 'Baby Doc' Duvalier. The Duvalier regimes instituted brutal state repression of political opponents forcing many Haitians to flee Haiti to seek asylum in the United States.

In 1981, The Reagan administration negotiated an agreement with Haiti to establish a cooperative interdiction program.(xviii) Under the Haitian Migration Interdiction Program,(xix) the US coast guard vessels were to stop and board Haitian or un-flagged vessels on the high seas. Haitians were to be interviewed or ‘screened’ onboard the coast guard cutters. If they were found to have a ‘credible fear’ of persecution they were theoretically to be taken to the United States where they could lodge an asylum claim. (xx) All other undocumented Haitians on the boat were to be returned directly to Haiti.(xxi)

However, the guarantee that genuine refugees would not be returned to Haiti appeared to be an empty promise. Despite known political persecution in Haiti, 23,551 interdicted Haitians were returned to Haiti between September 1981 and September 1991.(xxii) In the same period, only 28 individuals were ‘screened in’ and were taken to the United States to apply for asylum.(xxiii)

Aristide and US policy under George H.W Bush

US  asylum policy towards Haiti changed in 1990 when a young Catholic priest Jean-Bertrand Aristide took power in Haiti only to be overthrown by the military a short time later. According to Amnesty International, the army attacked and killed 1 500 of Aristide’s supporters.(xxiv)  Following the overthrow of President Aristide by the military the United States adopted mandatory sanctions, while the Organization of American States instituted voluntary sanctions aimed at restoring constitutional government in Haiti.

In the eight month period following the coup 38, 000 Haitians were intercepted fleeing their country by the United States.(xxv) The US found itself in a political bind. It had publicly denounced the coup that had removed Aristide and had placed sanctions on Haiti but did not wish to give Haitians who were fleeing the very same coup the administration condemned, asylum in the US. The administration of Bush Snr feared that bringing Haitians interdicted at sea to the United States may lead to mass exodus of people from Haiti.(xxvi)

The US initially responded by  ceasing repatriations and holding all Haitians intercepted by the United States en route to the US on Coast Guard Cutters.(xxvii) As more Haitians fled Haiti, more coast guard cutters were deployed in the area. (xxviii) By mid-November 1991 the coast guard cutters were at capacity. Holding Haitians intercepted at sea became increasingly impractical.

As Australia was to do a little more than a decade later, the United States sought a regional arrangement with it’s neighbours to share the burden of the interdicted asylum seekers. US diplomats began negotiating with Caribbean and South American countries in the hope that some would accept Haitian asylum seekers and share the perceived burden of interdicted Haitians. However, few countries approached were willing to take asylum seekers that had been intercepted by the United States. Many Caribbean and South American countries were sceptical about the US claim that the influx of Haitian asylum seekers constituted an ‘emergency’. They argued that the wealth disparity between their countries and the United States made it illogical for them to be carrying the burden of asylum seekers who were headed for the United States.(xxix)

The Bahamas and the Dominican Republic refused US requests for assistance. After much negotiation Honduras, Venezuela, Belize, Trinidad and Tobago agreed to host Haitian refugees intercepted by US coast guards. However, the numbers were small. Only 550 Haitians were taken to the countries which agreed to host Haitians intercepted at sea by the United States.(xxx)

Faced with growing asylum seeker numbers, the refusal of Caribbean countries to take more than a mere token number of Haitians and a firm resolution to refuse Haitian asylum seekers into the US, the Bush Snr administration made the highly contentious decision of resuming the repatriation of Haitians to Haiti on 18 November 1991. Screening in interviews for asylum seekers, many shorter than 5 minutes were resumed on the cutters. Those ‘screened out’ were to be returned to Haiti. Those ‘screened in’ on board the cutters would continue to be permitted to make asylum claims in the US. 

On 19 November 1991, only one day after the resumption of repatriations to Haiti, a law suit was filed against the US government by the Haitian Refugee Centre. In Haitian Refugee centre v Baker,(xxxi) the complainants successfully argued that the refugee determination interviews conducted on board the Coast Guard cutters by Immigration and Naturalization Service (INS) personnel may result in the repatriation of refugees. The District court held that repatriation should not continue while the issue of the legality of interception was being challenged by the courts. However, the court did not order that Haitians held on coast guard cutters be brought to the United States.

In response the United States built a series of tent cities as shelters in its US base of Guantanamo Bay for asylum seekers that could no longer be accommodated on the cutters. In 1902, when Cuba was under military occupation by the United States, it incorporated into its constitution a provision that allowed the US the right to lease naval bases in Cuba. A lease agreement was signed for the Cuban Territory of Guantanamo Bay in 1903. (xxxii) In a 1934 treaty, the terms of the lease became indefinite so that the lease agreement could only be broken by mutual agreement or by abandonment of the property.(xxxiii)

The ‘shelter’ or ‘safe haven’ in Guantanamo Bay was in effect a detention centre, guarded by US troops and surrounded by barbed wire.(xxxiv) The territory of Guantanamo Bay in Cuba became the site of third country processing. INS Asylum Officers were sent to Guantanamo bay and by the end of November 1991, the first major migrant screening program at Guantanamo Bay was fully functional. Asylum interviews were conducted at the ‘shelter’ and Haitians unsuccessful in their asylum claims were returned to the Haiti. Between November 1992 and May 1993 the United States interviewed 34,000 interdicted Haitians in Guantanamo Bay and on board coast guard cutters. More than 10,000 established a ‘credible fear’ and were taken to the United States to lodge an asylum claim.(xxxv)

Guantanamo Bay also became the site of a HIV camp.   The United States adopted a policy in June 1987 that mandated the exclusion of HIV positive immigrants from entry into the United States.(xxxvi) 7,315 Haitians, 15 years old and above held in Guantanamo Bay were tested for HIV.  The HIV positive Haitians who were found to have a credible fear were not permitted to enter the United States and lodge an asylum claim like other Haitians who were also found to satisfy the credible fear requirement but were not found to be HIV positive. The HIV positive Haitians were instead detained in a separate section of Guantanamo Bay called camp Bulkeley. Judge Johnson of the District court described the living conditions of the HIV detainees in the following way:

• "They live in camps surrounded by razor barbed wire. They tie plastic garbage bags to the sides of the building to keep the rain out. They sleep on cots and hang sheets to create some semblance of privacy. They are guarded by the military and are not permitted to leave the camp, except under military escort. The Haitian detainees have been subjected to predawn military sweeps as they sleep by as many as 400 soldiers dressed in full riot gear. They are confined like prisoners and are subject to detention in the brig without a hearing for camp rule infractions...."(xxxvii)

A new policy was introduced in February 1992 which led to second interviews of HIV positive Haitians. Under the second round of interviews, HIV positive Haitians had to prove that they had a ‘well founded fear’ rather than the less demanding ‘credible fear test’.  HIV positive Haitians who refused the second interviews or who were found to have a ‘credible fear’ but not a ‘well founded fear’ were returned to Haiti. Lawyers were not permitted to assist the Haitian asylum seekers, and Haitian asylum seekers who tested negative to the HIV test were not required to undergo a ‘well founded fear assessment’.(xxxviii) The asylum seekers who satisfied the well founded fear test remained detained on Guantanamo Bay.

Detention in Guantanamo Bay did not stop asylum seekers fleeing the oppressive regime in Haiti. On 31 January 1992, the Supreme Court overturned the District court’s order to halt repatriation and opened the door to the return of Haitians to Haiti.(xxxix) Faced with continuing high asylum numbers, George HW Bush made one of his most controversial decisions. On May 24, 1992 he gave an executive order for the return of all Haitians to Haiti.(xl) The executive order came to be popularly known as the ‘Kennebunkport Order’ because it was made from the president’s holiday house in Maine. Under the order, coast guard were permitted to repatriate Haitians interdicted outside US territorial waters without determining if the interdicted persons were in fact refugees. The order stated that the non-refoulment obligation under the Convention Relating to the Status of Refugees (xli) (Refugee Convention) did not extend to persons located outside the territory of the United States. The Attorney General retained the discretion to not return a person who was found to be a refugee but that discretion was not reviewable.(xlii) Furthermore, no procedures were to be put in place to determine whether anyone was in fact a refugee.

The legality of the ‘Kennebunkport Order’ order was tested domestically in 1993 by the United States Supreme court in the case of Sale v. Haitian Centers Council.(xliii) The UNHCR submitted an Amicus Curiae Brief to the United States Supreme Court expressing the view that the clear wording and intent of the non-refoulment obligation under Article 33 of the Refugee Convention did not allow refoulement on the high seas. On June 21, 1993, the US Supreme Court, with a majority of 8–1, disagreed with the UNHCR and found that the Refugee Convention  applied only to ‘aliens’ who had already managed to reach US soil and not to Haitians intercepted on the open sea by the Coast Guard. UNHCR continues to maintain that the Refugee Convention does not permit the arrest of boatloads of asylum-seekers on the High Seas and their forcible return to their country of origin.(xliv)

In the two years following the ‘Kennebunkport Order’ , 53,735 Haitians were interdicted and returned to Haiti without asylum determinations.(xlv) This included asylum seekers held at Guantanamo Bay who had not as yet been subject to a refugee determination interview. The forced repatriation of asylum seekers held at Guantanamo Bay was justified by the US government at the time on the grounds that the detainees in Cuba were in territory under the sovereignty of Cuba and were thus not protected by US law.(xlvi) A similar argument regarding ‘enemy combatants’ held at Guantanamo Bay was rejected by the US supreme court  in 2004 in the case of Shafiq Rasul et al. Ptitioners v George W. Bush.(xlvii) HIV positive refugees who had been found to have satisfied the ‘well founded fear’ test prior to the ‘Kennebunkport Order’ remained detained at camp Bulkeley and were not repatriated to Haiti.

There is evidence that many repatriated Haitians, forcefully returned to Haiti without refugee determinations, were persecuted upon their return.(xlviii)

Hope for Haitians under Clinton?

There was strong opposition in the US to the policy of forced repatriation without asylum determination. As a presidential candidate, Bill Clinton denounced George Bush Snr’s policy calling the ‘Kennebunkport Order’ ‘cruel’. (xlix)  However, a week after his inauguration, Bill Clinton broadcast a radio message to Haiti announcing that interdiction and forced return of Haitians to Haiti without refugee determinations would continue under his administration. Clinton confirmed that the ‘Kennebunkport Order’ would remain unchanged.(l) HIV positive Haitians, who were found to have satisfied the ‘well founded fear’ test under the previous administration prior to ‘Kennebunkport Order’, would remain on Guantanamo Bay and would not be brought to the United States.

In 1993, Judge Sterling Johnson, Jr., of the US District Court issued an opinion that effectively ordered the United States to shut down its HIV detention center at Guantanamo Bay.(li) The District court found ongoing constitutional, statutory, and regulatory violations of the rights of detainees. The Clinton administration did not appeal the decision in the Supreme Court and brought the remaining HIV positive detainees to the United States. The policy of returning Haitians to Haiti without refugee determination continued.

Despite the closure of the HIV camp, Bill Clinton continued to face sharp opposition for forcefully returning Haitians to Haiti without refugee determinations. In March 2004, Aristide publicly denounced the US policy toward Haitian asylum seekers, calling it “racist” at a meeting of the Congressional Black Caucus in Miami.  A 27-day media-intensive hunger strike by Randall Robinson, and protests in which members of Congress were arrested helped convince Clinton to overturn Bush's policy. In May 1994 Bill Clinton announced a resumption offshore processing for Haitians. All Haitians fleeing their country would be granted an asylum hearing on board coast guard cutters in the high seas or in third countries. The administration declared that asylum seekers who satisfied the ‘well founded fear’ of persecution, rather than the previously used test of ‘credible fear of persecution’ would be transferred to the United States.

The Clinton administration signed a Memorandum of Understanding (MOU) with Jamaica and the UK. Under the MOU with Jamaica, a hospital ship was used for on-board processing of Haitian asylum seekers in Jamaican waters.(lii) The MOU with the United Kingdom allowed the United States to conduct third country processing in the islands of Turks and Caicos.(liii) The Clinton administration was also forced to re-open Guantanamo Bay as a third country processing centre. Between May and July 1993, 30% of all Haitian asylum seekers processed were found to have a ‘well founded fear’ of persecution and were taken to the United States.(liv)

In July 1994, the Clinton administration changed the policy again by ceasing refugee determinations and instead offering Haitians a ‘safe haven’.(lv) Under the new agreement, Haitian asylum seekers would be protected in third countries or in Guantanamo Bay but would not be permitted in to the United States. Panama agreed to allow the United States to admit 10,000 Haitian refugees but later rescinded its approval as a result of international pressure. On July 25, Honduras announced that it would shelter up to 40,000 Haitians temporarily in exchange for increased US aid.(lvi)

In October 1994, US pressure led to Aristide’s returned to power in Haiti. By the middle of November 1994, the majority of Haitian refugees had returned to Haiti from ‘safe havens’. This was despite continuing allegations of electoral irregularities, ongoing extra-judicial killings, torture and brutality in Haiti.

Offshore Processing: US and Australian Policies Compared

There are striking similarities between Australia’s use of offshore processing and the policies adopted under the United States administrations of Reagan, Bush and Clinton. This is no accident. There is evidence that Australia modelled its policy of offshore processing on the United States experience.(lvii)

Australia has not copied all aspects of US policy. Unlike the United States, Australia has not at any time had a public policy of repatriation without refugee determination. However, as discussed below, poor refugee determinations in third country processing centres could be leading to refoulement of refugees. This is an important distinction. Unlike the United States, Australia has not directly breached its non-refoulment obligations under Article 33 of the Refugee Convention. However, as discussed below, poor refugee determinations in third country processing centres and lack of access to independent review of refugee decisions could be constructive refoulement as refugees who are not recognised as such by an deficient system are returned to persecution.

Australia also applies the ‘well founded fear of persecution’ test to asylum seekers detained in offshore processing centres and conducts full asylum determinations. The United States applied the ‘credible fear test’ to all but the HIV positive asylum seekers and those processed between May and July 1994. In theory, the Australian model is more restrictive as it requires asylum seekers to meet a higher threshold before they are transferred to Australia. However, in practice the ‘credible fear’ test has not proven to be very generous. As stated above  between September 1981 and September 1991, only 28 individuals were found to have a ‘credible fear’ of persecution in Haiti and 23,551  Haitians were found not to have a credible fear, despite known persecution of political dissent in Haiti. The ‘credible fear’ test has not proven to be more generous in practice.

Finally, Australia does not use its own territory for third country processing. Guantanamo Bay, whilst situated in Cuba is a navel base leased from Cuba by the United States. PNG and Nauru are independent states.

The United States used Guantanamo Bay for the same reasons that Australia has chosen to process asylum seekers in PNG and Nauru. Australian and US policies of offshore processing were both instigated to deny asylum seekers rights enjoyed in Australian and US territory. Until 2004, it was believed that US law did not extend to those detained in the navel base of Guantanamo Bay.(lviii) US law also does not apply on the high seas(lix) or in safe havens in foreign countries like Honduras, Venezuela, Belize, Trinidad and Tobago, Jamaica, Islands of Turks and Caicos.  Likewise, Australian law does not extended to asylum seekers on Nauru and Manus Island. In an interview on SBS Dateline on 3 May 2006, Senator Vanstone stated as follows: “We can't make rules in relation to facilities in other countries. We can influence them but we can't make rules… Nauru is another country”. 

Asylum seekers processed in offshore facilities in both the United States and Australia have limited access to independent review of their primary refugee determination decision. Asylum seekers processed in the United States have a right of review of their primary refugee determination before an Immigration Judge at the Executive Office for Immigration Review. No right of review was enjoyed by asylum seekers held on board coast guard cutters, Guantanamo Bay or in Safe Havens. Likewise, asylum seekers processed in Australia have a right to merit review at the Refugee Review Tribunal (RRT). However, there is no right to merits review for applicants who are processed outside Australia.(lx)

A further restriction applied to asylum seekers processed offshore relates to their right to legal representation. Asylum seekers processed in the United States have a right to a lawyer present during their refugee determination interviews.(lxi) Lawyers were not present on board coast guard cutters for refugee determinations by United States officials. Lawyers were also denied the right on several occasions to enter the military controlled naval base of Guantanamo Bay to assist their Haitian clients.(lxii)

The experience of offshore processing in Australia has been similar.  According to a submission to the Senate Legal and Constitutional References Committee Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, between August 2001 and March 2003 many lawyers volunteered to travel to Nauru to provide legal assistance to asylum seekers detained there. However, their visa applications were refused by Nauru even though they were supported by UNHCR. No reasons were provided for the refusals.(lxiii) This is in stark contrast to asylum seekers processed in mainland Australia. Most asylum seekers in detention in Australia (as well as some applying from within the community) are given access to government-funded assistance if they sign a form requesting such help.

The other similarity between the US and Australian policies is the extraordinary human and financial cost of third country processing. Processing in Guantanamo Bay cost the US government $US 700,000 per day and required a start up cost of $US 100 million dollars.(lxiv) The running of offshore processing centres   by the International Organisation for Migration (IOM) cost the Australian government $119,463,592.51 between 2002 and 2005.(lxv) This did not include associated costs such as transport of asylum seekers to offshore processing centres.

Offshore processing has also led to the deterioration in the mental health of asylum seekers. In a submission to the Senate Legal and Constitutional Legislation Committee, the Department of Immigration and Multicultural Affairs (DIMA) conceded that the detainee population of Nauru suffered high rates of mental illness. They made reference to numerous acts of self-harm, suicide attempts, moderate and severe depression, acute stress reaction, adjustment disorder and anxiety disorders.(lxvi) The mental health problems associated with offshore processing are not unique to Nauru. DIMA also reported incidents of self harm, threats of suicide and three attempted suicides in PNG amongst the detainee population between October 2001 and December 2002.(lxvii)

The detention centre at Guantanamo Bay was also plagued by hunger strikes and deteriorating mental health of detainees.(lxviii) Detainees who were finally transferred to the United States continue to suffer the effects of the time they spent in the offshore processing centre of Guantanamo Bay. According to Dr. Marie Carmel Pierre-Louis, the director of the HIV/AIDS program of the Haitian Centers Council "A few people were able to pull their lives together. [But] a lot of them are still struggling."(lxix)

Conclusion

Offshore processing was not a new policy in 2001. Despite Australia’s attempts to promote the ‘pacific solution’ as an ‘Australian model’ overseas, Australia’s use of third country processing owes much to the US model of offshore processing in the 1990s and should more accurately be referred to as the ‘US model’.

Offshore processing has led to significant financial and human costs with long term consequences for both the United States and Australia. There are sound reasons why Australia should not follow the US example and should abandon the policy of offshore processing. Refugee determination procedures in third countries are inferior to those in Australia. There is evidence of systematic problems in Australia’s processing of asylum seekers detained in Nauru and PNG. Migration Agent Marion Le who was the advocate for all the detainees on Nauru as of December, 2003 found serious inequities and discrepancies between the decisions being handed down for asylum seekers processed onshore and those processed offshore.(lxx) The United States has also had problems with its offshore processing in Guantanamo Bay, on board cutters and in other third countries. For example the Senior Asylum Officer and Quality Control Coordinator from Guantanamo Bay admitted that 2,500 files for people already screened had been misplaced in the offshore processing centre.(lxxi) These inadequacies in processing combined with a lack of independent review and access to legal assistance increases the risk that genuine refugees will fail to be recognised.

Australia’s ‘Pacific Solution’ like the policies of the Reagan, Bush and Clinton administrations does not offer long term solution for refugees. Five years on from the Tampa, Australia continues to detain people on Nauru. This is despite the fact that the majority of asylum seekers held in offshore processing centres were found to be refugees and brought to Australia.

Finally, if one objective of the Pacific Solution is to deter further boat arrivals, this is likely to fail in the long term. Haitian refugees continued to take the dangerous journey to the United States despite its policy of offshore processing because they preferred offshore processing to the persecution that awaited them in their own country.(lxxii) Likewise, the hope of any protection is enough to motivate asylum seekers to risk their lives to reach safety in Australia. Instead of adopting the ‘US model’, Australia should aspire to a truly ‘Australian model’, one that is more humane, cost effective and just for refugees.


* BA,LLB (Hon I) Syd, Assistant Lecturer, Faculty of Law, Monash University and member of the Castan Centre for Human Rights Law.  Many thanks to Susan Kneebone for her valuable comments and Lorien Vecellio for his patient assistance with the editing of this paper.
(i)The term “rescuees” was used by the Australian courts to refer to the asylum seekers rescued by the Tampa See Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs(2001) 110 FCR 452 ; Ruddock v Vadarlis(Tampa) (2001) 110 FCR 491; Ruddock Vadarlis (No 2) (2001) 115 FCR 229
(ii) September 2001, Transcript Of The Prime Minister, The Hon John Howard Mp Joint Press Conference With The Minister For Immigration The Hon Philip Ruddock Mp – Sydney<http://www.pm.gov.au/news/interviews/2001/interview1206.htm>
(iii) On the 26th and 27th of September the Commonwealth Parliament passed the following bills:  Migration Amendment (Excision from Migration Zone) Act 2001 ; Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001; Border Protection (Validation and Enforcement Powers) Act 2001; Migration Legislation Amendment (Judicial Review) Act 2001; Migration Legislation Amendment Act (No 1) 2001 ; Migration Legislation Amendment Act (No 5) 2001; Migration Legislation Amendment Act (No 6) 2001 
(iv) Migration Amendment (Excision from Migration Zone) Act 2001 and  Border Protection (Validation and Enforcement Powers) Act 2001
(v) Section 5(1) Migration Act 1958 (Cth)
(vi) Section 198A Migration Act 1958 (Cth)
(vii) Senate Select Committee for an Inquiry into a Certain Maritime Incident, Inquiry into a certain maritime incident ( Australian Government Publishing Service, Canberra, 2002)
(viii) Unauthorised Arrivals Migration Amendment (Designated Unauthorised Arrivals) Bill 2006
(ix) Transcript Of The Prime Minister
The Hon John Howard Mp, Interview With Mike Munro, A Current Affair , 28 August 2001 , <http://www.pm.gov.au/News/interviews/2001/interview1190.htm>
(x) In 2001 Australia hosted a total of 55,146 refugees. In comparison Pakistan hosted 2,198,797 refugees and the Islamic Republic of Iran hosted 1,868,000 refugees. See United Nations High Commissioner for Refugees Statistical Yearbook 2001 <http://www.unhcr.org/static/home/statistical_yearbook/2001/toc.htm>
(xi) Ibid.
(xii) Response by Minister Philip Ruddock to the ACBC Statement on Refugees and Asylum Seekers with Comments by the Australian Catholic Migrant and Refugee Officer <http://www.acmro.catholic.org.au/policies/docs/ruddock.pdf>
(xiii) Valda Kelly ‘The Legality of Processing Applications for Asylum and Refugee Status in Third States’ < http://www.uel.ac.uk/ssmcs/research/fmsc/papers/Kelly.pdf>
(xiv) Proclamation No. 4865, 46 Fed. Reg. 48, 107 (1981)
(xv) Christopher Mitchell ‘US Policy Towards Haitian Boat People 1972-93’ (1994) 53 Annals of the American Academy of Political and Social Science 69-80
(xvi) Christopher Mitchell ‘US Policy Towards Haitian Boat People 1972-93’ (1994) 53 Annals of the American Academy of Political and Social Science 69-80
(xvii) Human Rights Watch, ‘Human Rights Overview : Haiti’ <http://hrw.org/english/docs/2006/01/18/haiti12210.htm>
(xviii) Agreement on Interdiction of Haitian Immigration to the US, Sept. 23, 1981, US-Haiti, 33 U.S.T. 3559
(xix) Proclamation No. 4865, 46 Fed. Reg. 48, 107 (1981)
(xx) Agreement on Interdiction of Haitian Immigration to the US, Sept 23, 1981, US-Haiti, 33 U.S.T. 3559 at 3560.
(xxi) Arthur Helton ‘The United States Government Program of Intercepting and Forcibly Returning Haitian Boat People to Haiti: Policy Implications and Prospects’ (1993) 10 New York law School Journal of Human Rights 325
(xxii) Ibid.
(xxiii) Ibid.
(xxiv) Amnesty International Haiti: The Human Rights Tragedy: Human Rights Violations Since the Coup (Amnesty International, New York, 1992).
(xxv) Helton, above n 21.
(xxvi) Vernon Briggs, ‘US asylum policy and the new world order’ (1993)1(3) People and Place, 1-9.
(xxvii) Victoria Clawson, Elizabeth Detweiler and Laura Ho ‘Litigating as Law Students: An Inside Look at Haitian Centre Council’ (1994) 103 The Yale Law Journal, 2337-2389.
(xxviii) Briggs, above n26.
(xxix) Helton, above n21.
(xxx) Briggs, above n26
(xxxi) 953 F.2d 1498 (11th Cir.)
(xxxii) Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations; Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16-23, 1903, US-Cuba, T.S. No. 418
(xxxiii) Treaty Between the United States of America and Cuba, May 29, 1934, US-Cuba, art. III, T.S. No. 866,
(xxxiv) Jane Franklin ‘How Did Guantanamo Become a Prison’ (2005) <http:hnn.us/articles/11000.html>
(xxxv) US citizenship and Immigration Services ‘INS History, Genealogy, and Education - This Month in Immigration’ < www.uscis.gov/text/aboutus/history/nov91.htm >
(xxxvi) Peter A. Barta  ‘Lambskin Borders: An Argument for the Abolition of the United States' Exclusion of HIV--positive Immigrants’ (1998)12  George Town Immigration Law Journal  323
(xxxvii) Haitian Centers Council v. Sale 823 F.Supp 1028 (E.D. N.Y. 1993)
(xxxviii) Barta , above n 36.
(xxxix) Baker v. Haitian Refugee Centre 953 F.2d 1498 (llth Cir, 1992)
(xl) s 2(c)3 Executive Order No. 12 807, 57 Fed. Reg 23, 133 (1992).
(xli)  Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954
(xlii)  s 3 Executive Order No. 12 807, 57 Fed. Reg 23
(xliii) 113 S.Ct. 2549 (1993)
(xliv) UNHCR ‘The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93’ < http://www.unhcr.org/publ/RSDLEGAL/437b6db64.html>
(xlv) Americas Watch/National Coalition For Haitian Refugees/Jesuit Refugee Service USA, No Port in a Storm, 7 cited in UNHCR ‘Haiti: Prospects for Democracy’ < www.unhcr.org/publ/RSDCOI/3ae6a6c30.html>
(xlvi) Barbara Crossette “US starts Return of Haiti Refugees After Justice Act” New York Times, February 2, 1992 cited in Jane Franklin ‘How Did Guantanamo Become a Prison’ (2005) <http:hnn.us/articles/11000.html>.
(xlvii) 124 S.Ct 2686 (2004)
(xlviii) Anne Fuller ‘Persecution of Hatian Refugees Forcibly Returned to Haiti’  Memorandum, National Coalition for Haitian Refugees, 21 April 1994 cited in UNHCR ‘Haiti: Prospoects for Democracy < www.unhcr.org/pub/RSDCOI/3ae6a6c30.html>
(xlix) Michael J. McBride ‘Migrants and Asylum Seekers: Policy Responses in the United States to Immigrants and Refugees from Central America and the Caribbean’ (1999) 37 International Migrationolume 289
(l) Philip G. Schrag A well-founded fear: the Congressional battle to save political asylum in America (Routledge, New York: 2000)
(li) Haitian Centers Council v. Sale 823 F.Supp 1028 (E.D. N.Y. 1993) 
(lii) Carlos Ortiz Miranda ‘Haiti and the United States During the 1980s and 1990s: Refugees, Immigration and Foreign Policy’(1995) 32 San Diego Law Review 673
(liii) Ibid.
(liv) Ibid.
(lv) Presidential Decision Directive 9, (June 18, 1993)  at <http://www.fas.org/irp/offdocs/pdd9.txt>
(lvi) Migration News ‘Haitian Zig-Zags’ 1994 (4) Migration News <http://migration.ucdavis.edu/mn/comments.php?id=383_0_2_0>
(lvii) See for example Nathan Hancock , Law and Bills Digest Group ‘Border Protection (Validation and Enforcement Powers) Bill 2001’ < http://www.aph.gov.au/library/pubs/bd/2001-02/02bd062.pdf>
(lviii) The case of  Shafiq Rasul et al. Petitioners v George W. Bush lviii 124 S.Ct 2686 (2004) found that US law extends to the territory of Guantanamo Bay in Cuba.
(lix) Sale v. Haitian Centers Council 113 S.Ct. 2549 (1993)
(lx) s 411(2)(a) of Migration Act 1958
(lxi) 8 CFR § 208.5
(lxii) Clawson et all, above n27.
(lxiii) Australian Lawyers for Human Rights, Submission to Senate Legal and Constitutional References Committee inquiry on Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006.May 2004.
(lxiv) Harold Hongju Koh ‘Human Rights International Law Symposium: America’s Offshore Refugee Camps’ 1994 (29) University Richmond Law Review 139
(lxv) Questions Taken On Notice Supplementary Budget Estimates Hearing: 1 November 2005 < http://www.andrewbartlett.com/PDF-misc/settlement-services.pdf>
(lxvi) Senate Legal And Constitutional Legislation Committee Inquiry into the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, Public Hearing 26 May 2006, Response to Questions on Notice by DIMA <http://www.aph.gov.au/Senate/Committee/legcon_ctte/migration_unauthorised_arrivals/submissions/sub118a.pdf>
(lxvii) ibid
(lxviii) Clawson, et all, above n27.
(lxix) Lizzy Ratner ‘The Legacy of Guantánamo’ The Nation <http://www.thenation.com/doc/20030721/ratner>
(lxx) Marion Le, Submission to Senate Legal and Constitutional References Committee inquiry on Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. <http://www.aph.gov.au/Senate/committee/legcon_ctte/migration_unauthorised_arrivals/submissions/sub115.pdf>
(lxxi) Deposition of Irma Rios, Senior Asylum Officer and Quality Control Coordinator, Immigration and Naturalization Service at 40-43, Haitian Ctrs. Council, No. 92-1258 (E.D.N.Y. deposition taken Mar. 31, 1992); see also US Human Rights Policy Toward Haiti, Hearings Before the Legislation and National Security Subcommittee of the House Comm. on Government Operations, 102d Cong., 2d Sess. 7-11 (1992) (testimony of Harold J. Johnson, Director, Foreign Economic and Assistance Issues of the Division of National Security and International Affairs, US Gen. Accounting Office) cited in Victoria Clawson, Elizabeth Detweiler and Laura Ho ‘Litigating as Law Students: An Inside Look at Haitian Centre Council’ (1994) 103 The Yale Law Journal, 2337-2389
(lxxii) For statistics on the number of interdicted asylum seekers by the United States see Hancock , above n57.