Government obfuscation in its asylum seeker language leaves detainees in indefinite detention with no way forward or back. By David Corlett.

Responsibility for asylum seekers obscured

As the Rudd government entered its final throes, three Syrians arrived by boat in Australia and were sent to detention in Manus Island. Two more of their countrymen joined them a short time later.

These men were part of what the United Nations High Commissioner for Refugees, Antonio Guterres, has called the worst refugee crisis in nearly two decades.

About two and a half million Syrians are refugees. Millions more are internally displaced. While Lebanon is temporary home to more than 800,000 Syrians, and Jordan accommodates nearly 600,000, Australia has promised to resettle 500.

At a donors’ meeting earlier this year, Australia pledged $11 million in aid to Syria, the previous Labor government having spent about $100 million since the conflict began.

But for the five men who arrived in late 2013, and who are now in Manus Island, and for three others who arrived at a similar time and were transferred to Nauru, even these modest commitments are almost inconsequential.

By late last year at least two of the Syrians in the Manus Island detention centre were starting to unravel, according to documents seen by The Saturday Paper. Damage to mental health has long been a feature of Australia’s immigration detention system, and it is a factor in the current offshore processing regimen.

Minutes of a meeting between different service providers to discuss vulnerable asylum seekers in the centre reveal that one of them, whom we shall call “Ali”, had been unable to make contact with family for more than 40 days. Uncertainty about their safety was affecting Ali’s mental state.

Ali, the minutes tell us, was on a hunger strike, along with a second Syrian who was being hydrated intravenously every 48 hours. They were refusing to eat because “no progress” was being made on their refugee claims and because they were not allowed to return to their families in Syria “due to the situation being unsafe”.

After a recent visit to Papua New Guinea, Scott Morrison, the minister for immigration and border protection, insisted that a number of cases are “almost decision-ready”. But only one refugee decision has been made across both Nauru and Manus Island since the offshore processing system was re-established in September 2012.

At the same, a spokesperson for the minister insisted, “All transferees, whether at Manus Island or Nauru offshore processing centre, can depart voluntarily at any time, with the assistance of the International Organisation for Migration.”

But according to Ana Fonseca, senior specialist in migration assistance at the IOM in Geneva, the organisation is not currently assisting people to return to Syria, and a number of other countries, “in light of the security conditions in these countries and the lack of conditions to assist with reintegration”.

This puts the Syrians in a diabolical situation: with no progress on their refugee claims and no prospect of getting home, they are stuck in detention on Manus Island.

And it gets worse.

According to the service-provider meeting’s minutes, the Department of Immigration and Border Protection officials suggested that the very act of requesting to go home means that asylum seekers “nullify their claim that they have a well-founded fear of persecution”. The logic would seem to be that it is inherently inconsistent for a person to claim at the same time that because of a fear of persecution they cannot return home, while also asking to do exactly that.

According to refugee law expert and executive director of the Refugee and Immigration Legal Centre David Manne, such an assertion has “no foundation whatsoever in law or fact. The fundamental focus must be to properly identify whether or not they need protection as refugees – that is, whether, in reality, they face a real chance of being persecuted.”

On their request to return, the key issue, according to Manne, is “whether the circumstances they have been placed in by Australia are so inhumane and harmful to them, and so traumatic, that they are left feeling that they have no option but to return.

“This leads to the question about whether really this is a form of constructive coercion by our government, which has placed these people under such severe pressure, which has caused such profound distress and despair, that they feel that they have no other option but to return to a place where they continue to fear they will face brutality.”

Central here are notions of informed consent and voluntariness. The IOM maintains that it assists only voluntary returns. “The decision to return,” Ana Fonseca said, “is made by the individual concerned, based on his or her informed consent.”

But the Syrians in offshore processing demonstrate that it is not so simple.

It is reasonable to consider the Syrians’ request to return not as an act of free will, but a result of the punitive and harsh circumstances on Manus Island, including those which last month saw one man beaten to death and dozens more injured.

This convenient confusion between voluntary and coercive return points to something bigger than the plight of the eight Syrians currently stuck on Manus Island and Nauru, namely the obfuscation of lines of responsibility for the fate of people who are trapped within Australia’s offshore detention system.

The relationship between the IOM and Australia is an interesting case in point. The Australian government pays the IOM to help asylum seekers return to their homelands, permitting the government to assert that those who have done so – a couple of hundred people since the new government came to office – have done so of their own free will. And, given that they have returned voluntarily, there is apparently no need to investigate their protection claims, nor the circumstances that have led to the decision to return. Nor is there a need to investigate whether they are safe upon return.

At the same time, the Australian government provides the IOM with cover for its returning people in less-than-voluntary circumstances. The IOM can state that it is facilitating the will of individuals who are “considered by the asylum determination processes, as individuals not in need of international protection”, including “those whose asylum claims were rejected or those who decide to withdraw their asylum application,” as Fonseca said.

No further questions need be asked.

Indeed, the IOM takes no responsibility for determining whether those it assists to return may face persecution or other human rights violations. Such determinations, according to Fonseca, “are usually undertaken by asylum/refugee
entities responsible for processing asylum claims”.

We might assume that the Australian government is such an entity, but, in practice, such an assumption would be wrong.

Australia has transferred its obligations to conduct refugee status determination to Papua New Guinea and Nauru, the latter a country that recently exiled its top judicial officers, thereby casting doubts over its capacity to deliver justice according to the rule of law.

The distortion of words like “voluntary” to shift responsibility within our immigration system is regrettably not unusual. The onset of psychological destruction of individuals within Australia’s duty of care, for instance, is called “detention fatigue”.

This article was first published in the print edition of The Saturday Paper on March 15, 2014 as "Trapped in limbo".

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David Corlett is a writer and adjunct research fellow at the Swinburne Institute for Social Research.

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