Thursday, January 30, 2014

Challenging the "Pacific solution"

Since 2012, refugees seeking asylum in Australia have instead been dumped on Nauru and Papua New Guinea in appalling and inhumane conditions. But for some of them, that may be about to change: Papua New Guinea's Supreme Court has ruled that asylum seekers detained there may challenge their detention under PNG's constitution:

Asylum seekers detained at the Australian-funded Manus processing centre have equal rights like any citizen to challenge their detention.

That was the view of the Supreme Court Wednesday after it queried whether asylum seekers flown in from Australia know that they have a right under the PNG Constitution to apply to the courts for alleged human rights abuses.

A five-man bench comprising Deputy Chief Justice Gibbs Salika and Justices Bernard Sakora, Ambeng Kandakasi, David Cannings and Goodwin Poole said this when deliberating on an application by Opposition Leader Belden Namah, which found that he had standing to challenge the constitutionality of the Manus processing centre.

The Supreme Court said the asylum seekers could make a complaint to the National Court under section 42(5) or file a human rights enforcement application under section 57 to enforce their rights, including rights under section 42 of the PNG Constitution.

The actual case is about whether a PNG MP can challenge the constitutionality of their detention (and of the entire refugee detention deal) on their behalf, but in the process it has made it clear that PNG's constitution applies to everyone. So it looks like the Australian government's quest for a legal black hole to unlawfully dump its unwanted refugees in has failed. Sadly, I expect their response will be to wash their hands of the problem, and dump them in Papua New Guinea (using aid funding as a weapon to coerce the PNG government into accepting it), rather than accept their legal responsibilities under the Refugee Convention to properly process them and grant them asylum if it is found that they have a well-founded fear of persecution.