On 28 January 2017, American President Donald Trump made a phone call to Australian Prime Minister, Malcolm Turnbull. During that conversation, Turnbull pressed Trump on whether he would honour the refugee resettlement arrangement that was struck by the Australian Government with the outgoing Obama administration. While President Trump said that he would honour the deal, he later tweeted that it was a “dumb deal” and that he was going to study it.

On the same day, Trump signed an executive order to ban nationals from seven countries (Syria, Iran, Iraq, Lybia, Somalia, Sudan and Yemen) from entering the United States (“US”) for 90 days, indefinitely bar entry by Syrians into the US and suspend the US Refugees Admission Program for 120 days, subject to a review to institute ‘extreme vetting’ measures.

Background to the resettlement arrangement 

Since 2012, the Australian Government has held asylum seekers who have arrived in Australia by boat on offshore processing centres on Nauru and Manus Island. Under a policy of deterrence that has bi-partisan support, those on the island who are found to be refugees are not eligible for resettlement in Australia. For the last few years, the Australian government has sought to find resettlement options for them, but with limited success. Only a handful of refugees have been resettled pursuant to an agreement with Cambodia. New Zealand has a long-standing offer to resettle 150 refugees a year from the islands, but this offer has been rejected on the grounds that it might offer people a back-door way into Australia. This is due to special arrangements that make it easy for New Zealand citizens to enter and stay in Australia.

As of 20 February 2017, 689 people on Manus Island and 998 on Nauru have received positive refugee status determinations. The Australian government has come under intense political pressure to find resettlement options and close the offshore detention centre amid mounting evidence of abuse and systemic dysfunction. A number of asylum seekers have died on the island since 2012 and the situation has arguably damaged Australia’s international reputation.

What we know about the Australia-US arrangement

According to evidence given by Australia’s Department of Immigration to a Senate Inquiry in late 2016, the arrangement is a bilateral agreement entered into ‘through diplomatic means’. The arrangement follows an announcement by the Australian Government to assist the US with the resettlement of Central American refugees currently in Costa Rica.  The Australian government has strongly denied that the arrangements constitute in any way a ‘refugee swap’.

Under the arrangement, refugees on Manus Island and Nauru will be referred by Australia to the US for resettlement under its Refugees Administration Program (USRAP). The United Nations High Commissioner for Refugees (UNHCR) is not a party to the arrangement, but has stated that it will endorse referrals made by Australia ‘on a one-off, good offices, humanitarian basis, in light of the acute humanitarian situation’. It is then a matter for the US to consider whether to accept any refugees after it has conducted health, security and character checks.

Beyond this, little else is known about the arrangement. There is no timeframe or indication as to how many refugees may be resettled or who may be prioritised. According to evidence given by Australian officials, this is a ‘process driven’ rather than a ‘numbers driven’ exercise. There were reports that US officials had begun to arrive on Nauru and Manus Island in December 2016 in order to start the vetting process. Since the Trump administration has taken office, those officials have left and it is unclear when new officials will come.

It is important to emphasise that time is of the essence for refugees on Manus and Nauru, many of whom have waited 4 years for a durable solution. Trump’s executive order suspends the USRAP for 120 days, although exceptions can be made on a case-by-case basis. Normal resettlement procedures under the USRAP can take up to 18-24 months. It is a complex process that involves numerous government agencies, security checks, and personal interviews. Even on the most optimistic outlook, it may be many months before any refugees are resettled.

A number of other issues also remain unclear. What will happen to those who have been positively identified as refugees but are rejected by the US as a result of the screening process? Will family members of refugees who are resettled to the US — some of whom are in Australia — be able to join them?

International law Implications

It is important to recognise that the arrangement does not constitute a treaty. As such, the Trump administration is under no international legal obligation to honour the arrangement.

The US has ratified the 1967 Protocol to the Refugee Convention, which requires it to apply the provisions of the Refugee Convention. However, important protections under the Convention that include prohibition on return (non-refoulement) to a place of persecution (Article 33) and non-discrimination (Article 3) only apply in respect of refugees within a state’s jurisdiction. So, while the travel ban contained in the executive order is clearly a breach of the Convention in relation to those who can access US territory, the same protections do not apply to resettlement.

Resettlement — the act of providing protection to refugees from another state’s jurisdiction — is purely a discretionary matter.

The question of Australia’s international legal obligations with respect to asylum seekers and refugees on Manus Island and Nauru is, I would argue, clear-cut. As noted above, a State that is a party to a human rights treaty is bound to respect and uphold the rights contained in that treaty for all persons within the State’s ‘jurisdiction’. A State is generally considered to have jurisdiction over persons outside its territory if it has a certain degree of power, authority or ‘effective control’ over them, or over the territory in which they are located. The legal question boils down to whether, as a matter of fact, Australia exercises effective control over Nauru and Manus Island.

The Australian government has repeatedly argued that it is not legally responsible for what happens to the asylum seekers and refugees on Nauru and Manus, either because they reside on the territory of another State, or that it does not have the ‘effective control’ necessary to establish jurisdiction.

However, several members the High Court of Australia in the case of Plaintiff M68 held that Australia was responsible for the detention of asylum seekers on Nauru. In doing so, members of the Court referred to facts that support the case that Australia exercises ‘effective control’ over the island. These facts include that Australia had removed persons to Nauru under the Migration Act 1958 (Cth), and through contracted service providers, funded and retained a degree of control over how the detention centres operated.

If it is accepted that Australia has effective control over Nauru and Manus Island, Australia must abide by its international obligations — under international refugee law and other international human rights law — to ensure that refugees are not subjected to cruel, inhuman or degrading treatment. It is arguable that the conditions on Nauru and Manus are so poor as to reach the level of severity necessary to constitute cruel, inhuman and degrading treatment. If Nauru and Manus Island are not places where effective protection can be found for refugees, Australia has an obligation to find suitable resettlement options elsewhere, or preferably, to resettle the refugees in Australia.

Where to from here?

For the refugees on Manus Island and Nauru, there is no doubt that resettlement to the US is a desirable outcome. The US has a rich history of refugee resettlement and robust settlement services capable of providing a durable solution. That said, the arrangement represents little more than a band-aid solution to a problem that requires major surgery. It is unlikely that all the refugees on Manus and Nauru will be offered resettlement by the US.

Australia can no longer pretend that, as a matter of international law, it is not responsible for the welfare and safety of those on Manus and Nauru. Offshore processing is not a sustainable solution for Australia or the refugees it is bound to protect. Yet it remains a major plank of current Australian refugee policy that also includes boat turnbacks and temporary protection visas. These measures, it is argued, save lives by deterring people from engaging in dangerous boat journeys to Australia. This justification lacks force when one considers that the offshore regime subjects people to cruel and inhumane conditions that have also resulted in deaths.

Australia does not, and arguably should not, have to rely on the US or other countries to help it discharge its international obligations.

If the primary policy objective is to deter people from undertaking dangerous sea journeys, there are alternative solutions to offshore processing. Australia could make available alternative and legal pathways for refugees to enter Australia, including introducing visas that allow people to travel safely to Australia to seek asylum. It could address barriers to family, skill and student visas that could provide an alternative avenue for entry and protection. It could also increase aid to countries in the Asia-Pacific region that host asylum seekers and help to promote laws and policies that allow them legal status and access work and education while waiting for a durable solution.

Khanh Hoang is an Associate Lecturer in the Australian National University’s Migration Law Program and a PhD Candidate at the Andrew and Renata Kaldor Centre for International Refugee Law at the University of New South Wales.