The prospects of the 131 people who have been determined by PNG not to be refugees is even bleaker, as only recognised refugees are offered resettlement in third countries or in PNG itself (although being recognised as a refugee under PNG law hasn’t appeared to have had much impact on the assessment of claims by the US).
Yet it is far from clear that these people are not really refugees. The refugee determination process lacks many procedural safeguards, such as the right to choose one’s lawyer and the right to information needed to ensure an independent and fair decision-making. UNHCR has also continued to voice concerns that people may not have been able to engage in the process for valid reasons, meaning that any deportations prior to a thorough, appropriate review run a very real risk of returning people to danger.
Unlike in the first regime of offshore processing known as the ‘Pacific Solution’, this time the PNG government was responsible for determining whether people were refugees, although the process was set up and heavily supported by the Australian Government. When those arrangements were made, however, there was little in PNG law to govern the process of determining those claims (known as refugee status determination, or RSD).
The initial attempt to clarify in law the definition of refugees was found by UNHCR to be inconsistent in several respects with PNG’s commitments under the Refugee Convention and other human rights treaties. UNHCR also found significant inadequacies in the operation of those processes in several reports in 2013, but it has not subsequently reported on the process. (There was an amendment in 2014 to the regulation that contains the definition of refugee, although the procedural elements appear to be governed by policy).
It was not until 2014 that refugee processing really began, with the first initial assessment made in April 2014. The first interviews were conducted by Australian immigration officers on behalf of PNG immigration (Immigration Citizenship and Service Authority, ICSA), until the ICSA officers were trained. Many people seeking asylum were confused as to why they were being interviewed by someone from Australian immigration but being told they would be assessed under PNG law. There were also issues with the availability of interpreters (for example, the Bangladeshis preferred Bangla interpreters who are ethnic Bangladeshis, rather than Rohingyas who lived in Bangladesh).
For different reasons, around 60 people in PNG did not engage with the process of applying for protection. Some did not trust the system. Others were afraid they would be resettled in PNG if they were found to be a refugee. Some said they sought protection from Australia, not PNG, and so they should be processed and assessed in Australia. Those who did not participate were presumably assessed on paper, based on their interviews on Christmas Island before they were transferred to Manus Island, or other available information. Some were nevertheless granted refugee status, but around 45 of those who did not engage were refused refugee status. (UNHCR has continued to call for a review of these cases)
The RSD process in PNG is complex and opaque. There is an initial assessment issued by a Protection Officer (which is legally only a recommendation to the PNG Minister for Foreign Affairs and Immigration). This is followed (sometimes several months later) by a Minister’s Final Determination signed by the Minister. There is a non-transparent review process with a Refugee Assessment Review Panel, with members from PNG and Australia. Contracted providers assisted people with their claims and during the review process. However, unlike in Australia, there is no access to judicial review to ensure the law was properly applied. This undermines people’s right to a fair asylum process.
For those who have not been granted refugee status after a review, PNG officials conducted a Deportation Risk Assessment (DRA) to determine if they could be deported. Some people chose not to participate in the DRA process. However, if it was found that it was not safe to return them after a DRA, those people were left in limbo as they are still considered not to be refugees. According to Amnesty, around 40 people were reported to have been in this situation in February 2018. These people live in continual anxiety:
Today I went for interview. There were two officers and were insisting [that I should] voluntary[il]y return to [my] homeland. If I [do,] they will give me some money (I don’t know how much) in US dollars. If I refuse to go, they will forcibly deport me and do not give any supports. They said they only take [those] who has been found to be refugee and not negatives [people found not to be refugees]. In the end of the day, they will deport every negatives. And I continually convince them and indicate that I cannot be returned as my life is in danger, but they don’t listen to me.
– Person seeking asylum, 1 February 2017.
For the people who have not been recognised as refugees, there is no way out at all, other than the option of returning to danger.