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Durable Solutions for Australian Refugee Partnerships

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As of the end of November, the US will have reportedly resettled somewhere between 110 and 140 refugees from Manus Island, Papua New Guinea (PNG) and Nauru, with between approximately 1200 and 2000 refugees remaining on the two islands. Up to this point, what has been termed the ‘Pacific Solution’ had not been effective in providing durable solutions for refugees.

According to the United Nations High Commissioner for Refugees (UNHCR) 2013 Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers, durable solutions need to be guaranteed to each transferred asylum seeker that has been recognized as a refugee within a reasonable time. In fact, according to the Guidance Note, this “obligation … rests with the transferring State, prior to entering into such arrangements.”

The Australian government has made numerous attempts at resettling the asylum seekers and refugees kept on Manus Island and Nauru anywhere but Australia. None, except the US resettlement deal, could be called an effective durable solution. This is especially so when assessing the outcome against the standards of another durable solution – voluntary repatriation.

Durable Solutions

Traditionally, durable (also called permanent) solutions are the mandate of the UNHCR. They are ‘voluntary repatriation’ to the country of origin, ‘local integration’ in the country of asylum or ‘resettlement’ to another State. Apart from voluntary return, durable solutions do not have a basis in, or create any obligations under international law. Nonetheless, the three durable solutions share the characteristic of giving displaced persons access to permanent status such as residency and/or citizenship, with all the rights and protections thereof. In other words, durable solutions provide refugees the protection of a State, be it their own country once that protection becomes available, or a neighbouring or another country.

The durable solution of voluntary repatriation terms this guarantee as legal safety. It then supplements this with two other conditions of physical and material security that should be met to facilitate return in safety. These requirements have never previously applied to resettlement because most resettlement States have been wealthy with a developed democracy. With Australia’s attempts to engage developing States in providing durable solutions through resettlement, these conditions may be the standard needed against which the ability of those States can be assessed to provide legal safety (eg, access to permanent status and/or citizenship), physical security (eg, protection from armed attacks and persecution), and material security (access to land and/or means of livelihood).

When looking at Australia’s attempts at durable solutions through various resettlement programs in the frame of legal safety as well as physical and material security, the inevitable failure of these deals becomes apparent.

Australia’s attempts at durable solutions

In 2013, the Australian government announced that any asylum seeker arriving by boat after 19 July 2013 will not be settled in Australia. Thus began over four years’ worth of attempts at durable solutions, ongoing to this day.

The first ‘resettlement’ option was returning to Australia the several hundred asylum seekers that had been sent Nauru and PNG as the first cohort between September 2012 and July 2013. Despite the fact that those from Nauru had gone through a refugee assessment and had decisions that were ready to be handed down at the time of transfer, it wasn’t until 2015 that Australia permitted this cohort of asylum seekers to apply, but only for a three-year Temporary Protection Visa or a five-year Safe Haven Enterprise Visa, with little to no practical chance of accessing permanent residency and/or citizenship.

Simultaneously in 2013, in addition to superseding the Memorandum of Understandings (MoUs) signed with PNG and Nauru, the Australian government also entered into an agreement with the PNG government allowing for the settlement of recognised refugees in PNG. This arrangement has proven to be unrealistic due to the outward and often violent hostility of the local Manus population towards the refugees when they have ventured into the community.

Nauru signed no such deal, as it is neither willing nor able (financially, geographically or environmentally) to accommodate new arrivals permanently. Nonetheless, Australia has recently suggested that those that do not take up or are rejected from the US resettlement offer will remain on Nauru. Irrespective of refugees being only given permission to remain on Nauru for a maximum of 20 years, without access to permanent residency or citizenship or employment possibilities.

In September 2014, a controversial deal was signed with Cambodia for the resettlement of interested refugees. To date, seven people have taken up the offer with four of them returning to their country of origin despite the recognized risk of persecution there. While Cambodia has been touted as offering durable solutions, this has not been guaranteed. Nor is there a likelihood of the refugees being able to participate in the open economy of a developing country, which has itself, until recently, been one of the refugee producing States.

It is the 2016 US resettlement deal that is the closest that Australia’s government has come to providing refugees on Manus Island and Nauru with a viable durable solution. As was stated quite clearly by Turnbull in his conversation with Trump, while the US agreed to consider resettling between 1,250 and 2,000 refugees on Manus Island and Nauru, there is no requirement to take any. While US resettlement is a viable durable solution for the refugees selected for it, what durable solutions are envisaged for refugees the US has considered but chose not to resettle?

Finally, an offer from NZ to resettle 150 people, rejected in 2013, is now tentatively being considered, but only after the years-long process of US resettlement is complete. It is unlikely that the deal will be approved by the Australian government without legislative steps taken to restrict the movement of any potential refugees, as NZ is seen as a “backdoor” entry to Australia, and therefore a circumvention of the 2013 policy that no asylum seeker arriving by boat after 19 July 2013 would set foot on Australian soil.

Conclusions

It is clear that Australia has failed to provide durable solutions for the asylum seekers and refugees on Manus Island and Nauru. At the outset, by not entering into resettlement arrangements prior to or upon embarking on the 2012 Pacific Solution, Australia has remained on the back foot. It not only failed in providing timely durable solutions but, apart from the US deal, has also failed in providing effective durable solutions. This is because the other resettlement agreements have not succeeded in providing legal safety through access to residency status and/or citizenship, physical security through protection from physical attacks, or material security through access to land and/or livelihood opportunities.

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