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Nauru designated for regional processing



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CHRIS BOWEN MP

MINISTER FOR IMMIGRATION AND CITIZENSHIP

MEDIA RELEASE

10 September 2012

NAURU DESIGNATED FOR REGIONAL PROCESSING

The Minister for Immigration and Citizenship, Chris Bowen MP, has this morning signed the legislative instrument designating the Republic of Nauru as a regional processing country under the Migration Act.

“I will today table the designation documents in Parliament. Subject to both houses passing a resolution approving the designation, the designation will allow for the transfer of irregular maritime arrivals who arrived after 13 August to Nauru,” Mr Bowen said.

“These documents outline the terms of agreement with the Nauruan Government and the fact I have now designated Nauru as a regional processing country.”

The Minister has determined that it is in the national interest to begin transferring people to Nauru as set out in the Statement of Reasons, including:

• Nauru has given Australia the assurances around the principle of non-refoulement and the assessment of asylum claims in line with the Refugee Convention; • Designating Nauru as a regional processing country will discourage irregular and dangerous maritime voyages and thereby reduce the risk of the loss of life at sea; • The designation promotes the maintenance of a fair and orderly Refugee and

Humanitarian Program that retains the confidence of the Australian people; • Designating Nauru as a regional processing country promotes regional cooperation on irregular migration and people smuggling and its undesirable consequences; and • Arrangements already in place in Nauru and those that are proposed to be put in

place in Nauru are satisfactory.

The Memorandum of Understanding with the Nauruan Government was signed on 29 August. Construction work on the temporary facility is nearing completion and the Government expects to be able to begin transferring people to Nauru later this week.

Mr Bowen said the Government was committed to implementing the recommendations of the Expert Panel on Asylum Seekers.

“The designation I have tabled today is the next step in implementing the Expert Panel’s recommendations,” he said.

Further announcements about processing arrangements in Nauru will be made in due course.

The Nauru Designation and Statement of Reasons are attached.

Media Contacts: Bill Kyriakopoulos 0400 510 802 / Laura Stevens 0432 833 769

Commonwealth of Australia

Migration Act 1958

INSTRUMENT OF DESIGNATION OF THE REPUBLIC OF NAURU

AS A REGIONAL PROCESSING COUNTRY UNDER SUBSECTION 198AB(1)

OF THE MIGRATION ACT 1958

I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under

subsection 198AB(1) of the Migration Act 1958 (“the Act”), thinking it is in the

national interest to do so, DESIGNATE that The Republic of Nauru is a regional

processing country.

Dated:

CHRIS BOWEN

Minister for Immigration & Citizenship

NOTE: Subsection 198AB(1) provides that the Minister may, by legislative instrument, designate that a country is a regional processing country. Subsection 198AB(2) provides that the only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country. Subsection 198AB(3) of the Act, provides that in considering the national interest for the purposes of subsection (2), the Minister: (a) must have regard to whether or not the country has given any assurances to the effect that: (i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and (ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol and: (b) may have regard to any other matter, which in the opinion of the Minister, relates to the national interest.

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STATEMENT OF REASONS FOR THINKING THAT IT IS IN THE

NATIONAL INTEREST TO DESIGNATE NAURU TO BE A REGIONAL

PROCESSING COUNTRY

THE DESIGNATION

1. I, CHRIS BOWEN MP, Minister for Immigration and Citizenship, have

exercised my power under s 198AB(1) of the Migration Act 1958 (the Act) to

designate that the Republic of Nauru (Nauru) is a regional processing

country.

2. This document sets out my reasons for thinking that it is in the national

interest to designate Nauru to be a regional processing country.

THE LEGISLATIVE FRAMEWORK

3. The power conferred on me by s 198AB(1) to designate that a country is a

regional processing country is contained in Part 2 Division 8 Subdivision B of

the Act. That Subdivision was introduced into the Act by the Migration

Legislation Amendment (Regional Processing and Other Measures) Act 2012

(the Amendment Act). Section 198AA states that the Subdivision was

enacted because Parliament considers that:

(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b) offshore entry persons, including offshore entry persons in respect of who Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country;

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(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

4. Subsection 198AB(2) provides that the only condition for the exercise of the

power conferred on me by s 198AB(1) is that I think it is in the national

interest to designate the country to be a regional processing country.

5. Subsection 198AB(3) provides that, in considering the national interest for the

purposes of s 198AB(2), I must have regard to whether or not the country has

given Australia any assurances to the effect that:

(i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and

(ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol;

and I may have regard to any other matter which in my opinion relates to the

national interest.

6. Subsection 198AB(4) provides that the assurances referred to in s 198AB(3)

need not be legally binding.

7. Section 198AD of the Act has the effect that, subject to ss 198AE, 198AF and

198AG, an officer must, as soon as reasonably practicable, take an offshore

entry person who is detained under s 189 from Australia to a regional

processing country. Section 198AE confers on me a personal non-compellable

power to determine in writing that s 198AD does not apply to an offshore

entry person, if I think that it is in the public interest to do so. Section 198AF

provides that s 198AD does not apply to an offshore entry person if there is no

regional processing country. And s 198AG provides that s 198AD does not

apply to an offshore entry person if the regional processing country, or each

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regional processing country (if there is more than one such country), has

advised an officer that the country will not accept the offshore entry person.

BACKGROUND

8. On 28 June 2012, the Prime Minister appointed an independent expert panel

(the panel) to provide advice and recommendations to the Government on

policy options available to prevent asylum seekers risking their lives on

dangerous boat journeys to Australia. The panel consisted of Air Chief

Marshal Angus Houston AC AFC (Retired), Mr Paris Aristotle AM, Director

of the Victorian Foundation for Survivors of Torture Inc and Professor

Michael L’Estrange AO, Director, National Security College.

9. The panel consulted widely on asylum issues with political leaders, other

members of the Parliament, agencies and departments of Government, non-government organisations, academics and other experts as well as those in the

wider community. The panel also held discussions with representatives of

some refugee communities in Australia and refugees who travelled to

Australia through irregular means. The panel received more than 550 written

submissions.

10. The panel released its report on 13 August 2012. The panel recommended,

among other things, that “a capacity be established in Nauru as soon as

practical to process the claims of IMAs [irregular maritime arrivals]

transferred from Australia in ways consistent with Australian and Nauruan

responsibilities under international law”.

11. Following the report of the panel, the Government introduced the Migration

Legislation Amendment (Regional Processing and Other Measures) Bill 2012.

That Bill passed both Houses of Parliament with the support of both the

Government and the Opposition.

SUBMISSION

12. To facilitate my consideration of whether I think that it is in the national

interest to designate Nauru to be a regional processing country, a submission

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was provided to me by my Department, which included the following

attachments:

(1) Memorandum of Understanding between the Republic of Nauru and

the Commonwealth of Australia, relating to the transfer to and

assessment of persons in Nauru, and related issues, which was signed

on 30 August 2012 (the MOU) (Attachment A)

(2) a statement about arrangements that are in place, and are to be put in

place, in Nauru for the treatment of persons taken there under s 198AD

of the Act (the statement of arrangements) (Attachment B)

(3) advice received from the Office of the United Nations High

Commissioner for Refugees (the UNHCR) in relation to the

designation (the UNHCR advice) (Attachment C).

MY REASONS

13. I think that it is in the national interest to designate Nauru to be a regional

processing country, because:

(1) Nauru has given Australia the assurances referred to in

s 198AB(3)(a)(i) and (ii) of the Act and other assurances;

(2) I consider designating Nauru to be a regional processing country will

discourage irregular and dangerous maritime voyages and thereby

reduce the risk of the loss of life at sea;

(3) I consider designating Nauru to be a regional processing country will

promote the maintenance of a fair and orderly Refugee and

Humanitarian Program that retains the confidence of the Australian

people;

(4) I consider designating Nauru to be a regional processing country will

promote regional co-operation in relation to irregular migration and

address people smuggling and its undesirable consequences;

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(5) I consider the arrangements that are already in place in Nauru and that

are proposed to be put in place in Nauru to be satisfactory.

14. It is my opinion that, in addition to the assurances to which I must have regard

pursuant to s 198AB(3), each of the other matters referred to in the preceding

paragraph relates to the national interest.

Assurances by Nauru

15. As stated above, s 198AB(3) provides that, in considering the national interest

for the purposes of s 198AB(2), I must have regard to whether or not the

country has given Australia any assurances to the effect set out in paragraph 5

above.

16. Nauru has given those assurances. They are contained in clause 14 of the

MOU. I consider that the “Transferees” who are referred to in clause 14 of the

MOU are people who will be taken to Nauru pursuant to s 198AD of the Act.

17. Nauru has given an additional assurance in clause 14 of the MOU that it will

not send a transferee to another country where there is a real risk that the

transferee will be subjected to torture, cruel, inhuman or degrading treatment

or punishment, arbitrary deprivation of life of the imposition of the death

penalty.

18. Nauru has also assured Australia that it will permit Australian officials to

prepare assessments against Article 1A of the Refugees Convention, as

amended by the Refugees Protocol.

19. Whether or not the assurances referred to above are legally binding, I expect

that Nauru will act in accordance with them and that, as a consequence,

offshore entry persons who are transferred to Nauru will not be at risk of

being sent to another country where they have a well founded fear of

persecution, and will have any claims that they may make to be refugees

within Article 1A of the Refugee Convention assessed. That was part of my

thinking as to why it is in the national interest to designate Nauru to be a

regional processing country.

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Discouragement of irregular and dangerous maritime voyages

20. I think that it is in the national interest to take action that is directed to

discouraging irregular and dangerous maritime voyages to Australia and

thereby to reducing the risk of loss of life at sea. In my view, s 198AA(a) of

the Act supports that conclusion.

21. I think that designating Nauru to be a regional processing country may act as a

circuit breaker in relation to the recent surge in the number of irregular and

dangerous maritime voyages to Australia. The surge in arrivals is indicated by

the following figures my Department has provided to me:

(1) From 2002 to 2008 there were fewer than 10 boats a year. The total

number of passengers was fewer than 200 each year.

(2) In 2009, there were 60 boats carrying 2,726 passengers.

(3) In 2010, there were 134 boats carrying 6,555 passengers.

(4) In 2011, there were 69 boats carrying 4,565 passengers.

(5) In the year to 8 September 2012, there have been 135 boats carrying

8,851 passengers. The number of passengers who arrived in Australia

in the first seven months of 2012 (7,120) exceeded the number who

arrived in total in each of 2011 and 2010. The number of passengers

who arrived in August 2012 (1,933) constituted the largest ever

monthly number and was the largest ever number for the fourth month

in a row.

(6) Passenger numbers per boat arrival have also been increasing.

22. A substantial number of lives have been lost at sea as a result of the activities

of people smugglers. Since 2001, it is estimated that 1064 passengers have

died (or gone missing, presumed dead). Of these, 704 deaths have occurred

since October 2009. The figures above include the most recent tragedy on 30

August 2012, during which an estimated 100 people lost their lives following

the sinking of a vessel some 42 nautical miles off the Indonesian coast.

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23. I think that the cost of irregular maritime voyages, in terms of the loss of

human life and in respect of the substantial financial and resourcing costs to

the Commonwealth in dealing with such arrivals (estimated to be in excess of

$5 billion over the forward estimates period), means that it is in the national

interest to attempt to reduce the number of such voyages, and to do so

urgently.

24. I think that, as people who are considering travelling to Australia on irregular

maritime voyages become aware that their protection claims may be assessed

in Nauru rather than in Australia, they may be discouraged from risking their

lives by so doing, because it will change the equation between risk and reward

for prospective IMAs.

I also think that designating Nauru to be a regional processing country will make it

more difficult for people smugglers to sell the opportunity to resettle in

Australia

Maintenance of a fair and orderly Refugee and Humanitarian Program

25. I think that it is in the national interest to take action that will promote the

maintenance of a fair and orderly Refugee and Humanitarian Program that

retains the confidence of the Australian people.

26. Many of the people who arrive in Australia as IMAs are refugees within the

meaning of Article 1A of the Refugees Convention. But many persons who

need protection under that Convention are also located outside Australia.

While the Australian Government has recently increased the number of visas

available under its Refugee and Humanitarian Program each year, that number

remains limited. The policy of successive governments has been that grants of

visas to both offshore and onshore refugees, including those who have arrived

as IMAs as a result of the activities of people smugglers, are required to be

within this limit. As a result, for each visa granted to an onshore claimant in a

given year, there is one less visa available to be granted to an offshore

claimant in that year. In 2011-2012, for the first time more visas were

granted to onshore claimants than to offshore claimants, shifting the balance

of the program from its traditional offshore focus.

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27. The designation of Nauru as a regional processing country will have the effect

that officers will be obliged to take offshore entry persons who are detained

under s 189 of the Act from Australia to Nauru as soon as reasonably

practicable (unless I also designate another country or countries to be regional

processing countries or I exercise my personal non-compellable power under s

198AE). For that reason, I consider that the designation of Nauru to be a

regional processing country is likely to have the effect that a greater

proportion of visas will be given to offshore claimants than is presently the

case. I think that this would result in a fairer and more orderly Refugee and

Humanitarian Program, and one which is more likely to retain the confidence

of the Australian people. This is because I think that the allocation of

protection visas to refugees under Australia’s Refugee and Humanitarian

Program should not be determined by whether or not the refugee has

undertaken an irregular and dangerous maritime voyage to Australia.

Promotion of regional co-operation

28. I think that it is in the national interest to take action that will promote

regional co-operation in relation to addressing people smuggling and its

undesirable consequences.

29. Irregular migration is a continuing challenge for the Asia-Pacific region. At

the Fourth Ministerial Conference of the Bali Process on People Smuggling,

Trafficking and Related Transnational Crime held in Indonesia on 29-30

March 2011, Ministers agreed to a regional cooperation framework that would

provide a more effective way for interested states to cooperate to reduce

irregular migration in the region. That framework was to be given effect

through arrangements entered into on a bilateral or sub-regional basis.

30. I think that the designation of Nauru as a regional processing country will

encourage the development of further regionally integrated arrangements to

address the humanitarian and other problems caused by people smuggling, by

providing a practical demonstration of regional co-operation to address

irregular migration.

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Arrangements

31. I think that the arrangements that are in place and are to be put in place, in

Nauru for the treatment of persons taken to Nauru - being the arrangements

described in the statement of arrangements - are satisfactory.

32. I am aware that:

(1) some aspects of the arrangements that it is proposed would operate in

Nauru if I designate Nauru to be a regional processing country are still

the subject of negotiation between the Commonwealth and Nauru;

(2) work is still continuing to establish the accommodation and other

facilities that will be available to Transferees taken to Nauru.

These facts do not alter my view as to the national interest.

International obligations

33. If Nauru is designated as a regional processing country it will follow, as is

noted in s 198AA(b), that offshore entry persons, including offshore entry

persons in respect of whom Australia has or may have protection obligations

under the Refugees Convention as amended by the Refugees Protocol, may be

taken to Nauru.

34. The content of Australia’s international obligations is contestable. In

particular, there is a range of views held by lawyers, academics, non-government organisations and others as to the content of Australia’s

international obligations with respect to persons transferred to another

country, some of which differ from the Department’s position.

35. On the basis of the material set out in the submission from the Department, I

think that it is not inconsistent with Australia’s international obligations

(including but not limited to Australia’s obligations under the Refugees

Convention) to designate Nauru as a regional processing country,

notwithstanding that this will create a duty under s 198AD to take offshore

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entry persons to Nauru (subject to the exercise of my personal non-compellable power in s 198AE).

36. However, even if the designation of Nauru to be a regional processing country

is inconsistent with Australia’s international obligations, I nevertheless think

that it is in the national interest to designate Nauru to be a regional processing

country.

37. In considering whether I think it is in the national interest to designate Nauru

to be a regional processing country, in addition to the matters outlined above I

have:

(1) had regard to the UNHCR advice;

(2) chosen not to have regard to the international obligations or domestic

law of Nauru.

Concluded opinion

38. In light of the matters identified above, I think that it is in the national interest

to designate Nauru to be a regional processing country.

………………………………………..

Chris Bowen MP

Minister for Immigration and Citizenship

September 2012