Refugee Status Determination by South Pacific Island Countries: Legal Overview, Recent Developments, and a Brief Critique

Lili Song
RefLaw, Editorial Advisory Panel
University of the South Pacific, Lecturer in Law 

 

In late January 2017, 21-year-old Iranian Loghman Sawari landed at Nadi International Airport, Fiji.[1] He hoped to apply for refugee status in Fiji, but several days after his arrival, while he and his lawyer were driving to Suva to file his asylum application, Fijian police officers stopped them, took Sawari to Nadi airport, and deported him back to Papua New Guinea (PNG).[2]

The case of Sawari is a reminder of the need for attention on refugee protection in South Pacific Island States (SPICs).[3] SPICs are usually known as far-flung tropical holiday paradises, rather than destinations for asylum seekers. In most SPICs, the number of asylum seekers remains relatively small; however, because of the opening and re-opening of Australian offshore processing centers on PNG and Nauru, large numbers of asylum seekers have been forcibly transferred to those countries since 2001.[4] Furthermore, however small the number of asylum seekers in other SPICs may be, available protection could make a life or death difference for each individual who does seek asylum there. This article aims to provide an introductory overview of the legal framework for refugee status determination (RSD) in SPICs, with a particular focus on Papua New Guinea (PNG), Nauru, Fiji, and Vanuatu.

As of 11 June 2018, six SPICs are parties to the 1951 Convention relating to the Status of Refugees (the 1951 Convention) and the 1967 Protocol relating to the Status of Refugees (the 1967 Protocol): PNG, Nauru, Fiji, Samoa, Solomon Islands, and Tuvalu.[5] Of these six SPICs, PNG, Fiji, and Nauru have domestic legal provisions on RSD; Samoa had previously developed a bill on RSD but it was never adopted.[6] In the Solomon Islands, both the Immigration Bill 2011 and the Passport Bill 2012 reference refugee status determination, but an explicit refugee status determination act has not come into being yet.[7] In addition, Vanuatu, which is not a party to the 1951 Convention or the 1967 Protocol, introduced legal provisions on RSD in 2010.[8] The rest of the SPICs do not have legal provisions on RSD as of 28 June 2017.[9] The respective legal framework for RSD in PNG, Nauru, Fiji, and Vanuatu is discussed below.

Papua New Guinea

PNG gained independence from Australia in 1975.[10] PNG has a land area of 462,840 sq. km with a population of about 8 million.[11] Although PNG did not become a party to the 1951 Convention and the 1967 Protocol until 1986, it has a history of hosting West Papuan refugees from Indonesia since the mid-1980s.[12] Additionally, the PNG National Court of Justice discussed the principle of non-refoulement already in 1985, finding that “any determination of the ‘refugee’ status of the applicants is a matter for the determination of the executive government, not the court.”[13] The court also found that the principle of non-refoulement, if incorporated into PNG law, would be contrary to provisions of the Migration Act at that time.[14]

On 17 July 1986, PNG acceded to the 1951 Convention and the 1967 Protocol.[15] In 1989, four short sections dealing with refugees were inserted into Section 15 of the PNG Migration Act 1978 by way of the Migration (Amendment) Act 1989, with further amendments made in 2015.[16] Of additional relevance is PNG’s Migration Regulation 1979, which was amended in 2014 to reflect and elaborate Section 15 in the PNG Migration Act.[17]

Under PNG law, the Minister responsible for immigration has the power to determine who qualifies as a refugee.[18] To qualify as a refugee in PNG, a person must satisfy the criteria under Section 14(1) of the Migration (Amendment) Regulation 2013 and must not satisfy any of disqualifying and exclusionary criteria outlined in Section 14(2) of the same regulation.[19] This criteria to qualify as a refugee generally reflects the criteria required by Article 1F of the1951 Convention.[20]

Section 14(2), however, contains grounds for exclusion which go beyond the exhaustive list of grounds set out in the Refugee Convention.[21] For example, the PNG criteria exclude any person who has during their stay in a processing centre, “exhibited a demeanor incompatible with a person of good character or standing.”[22] Furthermore, neither the amended Migration Act nor the Migration Regulation contains any provision on non-refoulement or provides for judicial review of the Minister’s decision.[23] Instead, Article 15(4) of the amended Migration Regulation provides that the Minister “must not re-open a decision for further consideration after his decision is made,” effectively preventing appeals.[24]

Nauru

Nauru is a one-island nation southeast of Australia with a population of around 10,000 people and a land area of 21 sq. km.[25] It became independent in 1968 from Australian administration.[26] Nauru became a party to the 1951 Convention and the 1967 Protocol on 28 June 2011,[27] the year before it signed an agreement with Australia to reopen the Australian offshore asylum processing center in Nauru.[28]

In 2012, Nauru passed its Refugees Convention Act, which was amended annually from 2014 to 2017.[29] Section 3 of this act defines refugee as “a person who is a refugee under the Refugee Convention as modified by the Refugee Protocol;” section 4 of this act expressly recognizes Nauru’s obligation of non-refoulement under the 1951 Convention and the 1967 Protocol as well as other relevant international treaties.[30] Applicants may apply for recognition as a refugee to the Nauruan Secretary for Justice and Border Control, who makes the first instance decision.[31] The Nauruan Refugee Convention Act provides for a Refugee Status Review Tribunal, which is empowered to conduct merits review of the Secretary’s decision.[32] Furthermore, the applicant has the right to appeal the decision of this Review Tribunal to the Nauruan Supreme Court on a point of law in accordance with article 43(1) of the Nauruan Refugee Convention Act.[33]

Prior to March 13, 2018, an applicant could appeal further to the High Court of Australia against a negative decision by the Nauruan Supreme Court, by virtue of a 1976 bilateral treaty between Nauru and Australia and statutes of their respective parliaments.[34] On December 12, 2017, Nauru quietly terminated this bilateral judicial appeal arrangement with a 90-day notice period.[35] Although Nauru has since announced a plan to establish a Court of Appeal and passed a Court of Appeal Act in May 2018,[36] such Court of Appeal has not been set up as of 28 June 2018. As commentators have pointed out,[37] Nauru’s failure to establish a replacement appeals mechanism upon the termination of the Nauru-Australia judicial appeal arrangement deprives refugees in Nauru the option to challenge negative decisions made by the Nauruan Supreme Court.

Fiji

Fiji is an archipelagic country with a land area of 18,274 sq. km and a population of about 900,000.[38] It gained independence from Britain in 1970.[39] Fiji became a party to the 1951 Convention and the 1967 Protocol on 12 June 1972.[40] However, it was not until 2003, with the passage of its Immigration Act, that Fiji finally enacted provisions governing RSD into its domestic law. The Immigration Act provides a definition of a refugee that is essentially the same as the definition under Article 1A(2) of the 1951 Convention.[41]

An application for refugee status can be made to an immigration officer,[42] and the Permanent Secretary responsible for immigration is empowered to make the first instance decision.[43] Section 41(2) of the Immigration Act provides a number of grounds for exclusion from refugee status that go beyond the exhaustive list of grounds set out in Articles 1D, 1E and 1F of the 1951 Convention.[44] For example, a person would be excluded from refugee protection in Fiji they are “at present receiving protection and assistance from a third country or international agency in the Fiji islands.”[45]

The applicant can appeal against the Secretary’s decision to the Minister responsible for immigration.[46] Although Fiji’s Immigration Act does not specify whether the Minister’s decision on RSD is subject to judicial review, the High Court of Fiji answered this question in the negative in Arfaoui v. Director of Immigration.[47] Here the court determined that the applicant, whose appeal was rejected by the Minister, did not have a right to appeal the decision to the court.[48]

Vanuatu

Vanuatu is not a party to the 1951 Convention or its 1967 Protocol.[49] However, it introduced a section of law to deal with refugees, i.e. Part 9 entitled “Determination of Refugee Status,” in its Immigration Act 2010.[50] The Vanuatu Immigration Act was subsequently amended in 2013, 2014, and 2016.[51] Incidentally, Vanuatu offered to host an Australian offshore processing center in 2010, in the midst of expanding RSD opportunities.[52]

According to the Vanuatu Immigration Act, an application for refugee status must be made to the Principal Immigration Officer,[53] who makes the first instance decision.[54] Like in Fiji, in Vanuatu the applicant may appeal against the decision by the Principal Immigration Office to the Minister responsible for immigration.[55] Unlike in Fiji, Vanuatu’s RSD statute explicitly provides for judicial review: the applicant may further appeal against the decision by the Minister to the Supreme Court of Vanuatu.[56]

Section 65 of the Vanuatu Immigration Act also provides the criteria for RSD in Vanuatu. The Immigration essentially adopts the definition of a refugee in Article 1A(2) of the 1951 Convention.[57] However, as noted by UNHCR in 2013,[58] the grounds for exclusion from refugee status Section 65(2) go far beyond the exhaustive list of grounds those set out in Article 1 sections D, E and F of the 1951 Convention. For example, Vanuatu excludes applicants who have been criminally convicted in another country of an offence and sentenced to either death or a term of imprisonment of two years or more, including for life.[59] Most notably, Vanuatu stipulates that travel through any third country in which the applicant has the right to enter and reside automatically disqualifies the applicant from refugee status.[60]

On top of its extensive exclusion grounds, Vanuatu also creates separate categories of “prohibited immigrants,” which allow for an exception to its statutory prohibition against non-refoulement. While section 73(1) of the Vanuatu Immigration Act expressly prohibits refoulement of refugees, section 73(2) provides an exception to the prohibition of refoulement in the case of a prohibited immigrant.[61] Section 50 of the Immigration Act contains an extensive list of prohibited immigrants in Vanuatu, including anyone who “breaches a condition of his or her visa,” “is wanted in another country by the relevant authorities in that country in relation to the commission of an offence in that country,” “arrives in Vanuatu as a stowaway,” “is in the process of being deported from or has been asked to leave any other country,” or is “a member of the family of a prohibited immigrant, unless the Principal Immigration Officer declares in writing that the member is not a prohibited immigrant.”[62]

Sections 73(2) and 50 thus make it possible for Vanuatu to refoule persons who should not be refouled under the Refugee Convention and Protocol. But, because Vanuatu is not yet a party to the Refugee Convention or Protocol, it is not bound by provisions of these instruments. However, scholars have argued that the principle of non-refoulement has become a principle of customary international law and thus binds all States.[63] Besides, Vanuatu is a party to the Convention against Torture (CAT).[64] Given that the Immigration Act contains no expressly prohibition of refoulement in accordance with the CAT, the rather wide coverage of section 50 may lead to refoulement of a refugee who cannot be refouled under the CAT. As of 28 June  2018, there is no report of cases brought in accordance with Section 71A (appeal to Supreme Court against the decision of the Minister) of the Immigration Act.

Brief Critique

As demonstrated above, in SPICs, laws relating to RSD have developed especially in recent years. Such development has probably, to a certain extent, been driven by Australia’s policy of offshore processing of asylum-seekers. Two of the four SPICs that recently introduced new RSD provisions in their domestic law system, namely PNG and Nauru, host Australian offshore processing centres. Vanuatu approached Australia about the possibility of hosting such a centre in the same year it introduced RSD provisions into its immigration law, raising the question of whether such introduction was made to pave the way for Vanuatu’s attempt to host an Australian offshore processing centre. Incidentally, the Solomon Islands, which has not introduced RSD provisions in its domestic law but whose Immigration Act 2012 and Passport Act 2012 make reference to a Refugee Status Determination Act, also repeatedly offered to host an Australian offshore asylum-seeker processing center.[65]

On the one hand, the development of new RSD laws should be welcomed because it fills a legislative gap in the relevant SPICs and supposedly helps enhance transparency of RSD process in the relevant SPICs. On the other hand, besides developing laws relating to RSD, the SPICs should carefully consider the legal and ethical issues relating to Australia’s practice of offshore asylum processing and the role they are playing and should play in such practice. For example, the PNG Supreme Court’s ruling that the Australian offshore processing centre on PNG’s Manus Island is unconstitutional illustrates the wider and deeper legal issues the SPICs may need to deal with in relation to hosting Australian offshore processing centres.

Relevant domestic laws in PNG, Fiji, and Vanuatu, as they currently stand, contain provisions that are significantly inconsistent with the 1951 Convention and the 1967 Protocol. And, while laws in PNG and Fiji contain no express prohibition of refoulement of refugees, Vanuatu’s Immigration Act 2010 allows extensive exceptions to non-refoulement beyond the Refugee Convention and Protocol. Only Nauru and Vanuatu allow judicial review of executive decisions on RSD. The SPICs should consider reviewing and amending these provisions that are inconsistent with relevant international standards.

Looking forward, one issue of relevance to the law of refugee status in the SPICs is forced migration caused by climate change. In November 2017, Fiji’s Attorney General told media the country was developing a legal framework to help climate change refugees.[66] In the same month, New Zealand, one of the major influencers and biggest aid providers in the SPICs, announced that it was considering creating an experimental humanitarian visa category for Pacific islanders displaced by climate change.[67] Traditionally, the SPICs tend to have a united front on climate change issues. It is interesting to see how the issue of climate change induced displacement will play into their law of refugee status.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Fiji Lawyer Fears for Deported Asylum Seeker’s Life, Radio New Zealand (Feb. 3, 2017), https://perma. cc/6ZLC-G789; Michael Gordon, Escape from Manus Island: Iranian refugee seeks asylum in Fiji, The Sunday Morning Herald (Jan. 28, 2017), https://perma.cc/89XY-ZNHD.

[2] Radio New Zealand, supra note 1; Statement from the Attorney-General, The Fijian Government (Feb. 3, 2017), https://perma.cc/2RCD-DLSZ.

[3] For the purpose of this article, the term “SPICs” refers to the twelve member states of the University of the South Pacific (USP), namely Cook Islands, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, as well as Papua New Guinea and the Federated States of Micronesia, both of whom have close relations with USP member states.

[4] See Elibritt Karlsen, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: a Quick Guide to Statistics and Resources, Parliament of Australia (Dec. 19, 2016), https://perma.cc/5USU-Q4HA; See also UNHCR Statistics: The World in Numbers 2016, UNHCR (counting refugees, asylum seekers, and stateless people in each country around the world, with notably few in Fiji and none recorded in the Solomon Islands or Vanuatu).

[5] Convention relating to the Status of Refugees, July 28, 1951, U.N.T.S. 189, https://perma.cc/C6SV-RZAT.

[6] U.N. High Commissioner for Refugees, Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report Universal Periodic Review: 2nd Cycle, 25th Session – The Independent State of Samoa, 2015, https://perma.cc/T7B4-4AZY.

[7] Solomon Islands Immigration Bill 2011, E.g. §§ 7(2), 90(2)(a)(iii), https://perma.cc/U6FH-623S; Solomon Islands Passport Bill 2012, § 15(b), https://perma.cc/V9NS-KTNM.

[8] U.N. High Commissioner for Refugees, Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Vanuatu, https://perma.cc/4H9K-6WVJ.

[9] See Table 1 provided at the end of the article.

[10] Papua New Guinea Country Profile, BBC (Jan. 14, 2018), https://perma.cc/7RE6-NBTM.

[11] Id.

[12] West Papuan Refugees in PNG Urged to Register, Radio New Zealand (Nov. 7, 2017), https://perma.cc/KC T9-456J; Convention relating to the Status of Refugees, supra note 5.

[13] Application by Ireeuw, Wawar, Ap, and Wakum, [1985] PGNC 7; [1985] PNGLR 430 (13 Dec. 1985), http:// www.paclii.org/fj/cases/FJHC/2017/519.html.

[14] Id.

[15] Convention relating to the Status of Refugees, supra note 5.

[16] Migration Act 1978, [PNG], § 15 (amended by Migration (Amendment) Act 1989), https://perma.cc/M2U5-PFJB; Migration (Amendment) Act 2015, [PNG], §§ 15B, 15F, https://perma.cc/4HMB-K6DW.

[17] Migration Regulation 1979, [PNG], https://perma.cc/BA73-7F8E; Migration (Amendment) Regulation 2014, [PNG], https://perma.cc/YK4H-MJZ5.

[18] Migration Act 1978, [PNG], § 15A (amended by Migration (Amendment) Act 1989), https://perma.cc/P2EU-UWGB.

[19] Migration (Amendment) Regulation 2013, [PNG], §§ 14(1)-(2), http://www.paclii.org/cgi-bin/sinodisp/pg/ legis/sub_leg/mr2013289/.

[20] Id. at § 14(1)(c) (allowing the Minister to find a non-citizen a refugee if he or she “is outside of the country of his or her nationality and is unable or owing to such fear, unwilling to avail himself or herself of the protection of that country; or does not have a nationality and being outside his or her country of former habitual residence is unable, or, owing to such fear, is unwilling to return to it”).

[21] See id. at § 14(2); See also UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, U.N.T.S. 189, art 1F, http://www.refworld.org/docid/3be01b964.html.

[22] Migration (Amendment) Regulation 2013, supra note 19, at § 14(2)(h).

[23] Id.; Migration Act 1978, supra note 18.

[24] Migration (Amendment) Regulation 2013, supra note 19, at § 15(4).

[25] Nauru Country Profile, BBC, Feb. 20, 2018, https://perma.cc/N6S5-C6EE.

[26] Id.

[27] Convention relating to the Status of Refugees, supra note 5.

[28] See Alison Rourke, Australia to deport boat asylum seekers to Pacific islands, The Guardian (Aug. 13, 2010), https://perma.cc/E2RV-DCTD.

[29] Republic of Nauru Refugees Convention Act 2012, [Nauru], https://perma.cc/MRE8-2V5U; See Reflaw.org for the Refugees Convention (Amendments) from 2014-2017.

[30] Refugees Convention Act 2012, supra note 29, at § 3.

[31] Id. at §§ 5(1), 6(1).

[32] Id. at §§ 11, 31(1); See also Secretariat, the government of the republic of nauru, https://perma.cc/ K273-23ZQ.

[33] Refugees Convention Act 2012, supra note 29, at 43(1).

[34] Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru, Mar. 21, 1977, 1216 UNTS 151; Nauru (High Court Appeals) Act 1976 [Australia], https://perma.cc/KNX5-DRJM; Appeals Act 1972 [Nauru] https://perma.cc/C2YL-HGLL.

[35] Michaela Whitbourn, Asylum seekers in limbo as Nauru scraps appeals to High Court of Australia, The Sydney Morning Herald (Apr. 2, 2018), https://www.smh.com.au/national/asylum-seekers-in-limbo-as-nauru-scraps-appeals-to-high-court-of-australia-20180402-p4z7e2.html.

[36] Nauru Court of Appeal Act 2018 [Nauru], https://perma.cc/LJH2-QNW8.

[37] Eg. Maria O’Sullivan, Nauru’s Renunciation of Appeals to the High Court – Lawfulness and Implications, Castan Centre for Human Rights Law (Apr. 5, 2018), https://perma.cc/J9JB-FMJG; Melissa Clarke, Justice in Nauru curtailed as Government abolishes appeal system, The Australian Broadcasting Corporation (Apr. 1, 2018), https://perma.cc/2M47-EQ93.

[38] Fiji Country Profile, BBC, Jan. 4, 2018, https://perma.cc/4ACV-CEE2.

[39] Id.

[40] Convention relating to the Status of Refugees, supra note 5.

[41] Immigration Act 2013, [Fiji], § 38, https://perma.cc/CQ5R-XKZG; See also UN General Assembly, Convention Relating to the Status of Refugees, supra note 21.

[42] Immigration Act 2013, supra note 41, at § 39(1).

[43] Id. at §§ 41(1) (noting the act requires that the Permanent Secretary “…must, when determining a claim, be guided by the provisions of the Refugee Convention”).

[44] Id.

[45] Id. at § 41(2)(v)(e).

[46] Id. at §§ 43(1)(c), 44(1).

[47] Arfaoui v. Director of Immigration, [2017] FJHC 519 (14 July 2017), http://www.paclii.org/fj/cases/FJHC/ 2017/519.html.

[48] Id.

[49] Convention relating to the Status of Refugees, supra note 5.

[50] Immigration Act 2010, [Vanuatu], http://www.paclii.org/cgi-bin/sinodisp/vu/legis/num_act/ia2010138/.

[51] See Vanuatu Immigration Act 2010:amending texts, International Labour Organization, https:// perma.cc/6PHC-4LAB (listing the Act’s amending texts in 2013, 2014, and 2016).

[52] Paul Maley, Vanuatu Offered to Host Asylum-Seeker Centre, The Australian (June 16, 2011), https://www. theaustralian.com.au/news/nation/vanuatu-offered-to-host-asylum-seeker-centre/news-story/8ffea76723859fa3e 0deb29b196afbab?sv=e0134b8f549bd89bf2e247f4bc6988df.

[53] Immigration Act 2010, supra note 50, at § 64(1).

[54] Id. at § 66.

[55] See id. at § 71(2).

[56] Id. at § 71A.

[57] Id. at §§ 65(1)(a)-(b).

[58] U.N. High Commissioner for Refugees, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Vanuatu (June 2013), http://www.refworld.org/docid/51b829460.html.

[59] Immigration Act 2010, supra note 50, at § 65(2)(d).

[60] Id. at § 65(2)(j).

[61] Id. at §§ 73(1)-(2).

[62] Id. at § 50.

[63] E.g., Cathryn Costello & Michelle Foster, Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test, Neth. Y.B. of Int’l L. 273, 323 (2015); But see e.g., Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement: Opinion, in Erika Feller, Volker Türk & Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, ¶¶193-216 (Cambridge University Press, 2003).

[64] Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, U.N.T.S. 1465, https://perma.cc/VQ3D-XB3W.

[65] Rowan Callick & Paul Maley, Solomon Island Asylum-Seeker Solution Well Advanced, The Australian (May 31, 2011), http://www.theaustralian.com.au/national-affairs/solomon-island-asylum-seeker-solution-well-advanced/news-story/b421372e352501e4116f7f13e1530ad6.

[66]  Jess Shankleman, A Tiny Island Prepares the World for a Climate Refugee Crisis, Bloomberg (Nov. 14, 2017), https://perma.cc/7VY5-BQV4.

[67] New Zealand Wants to Take Lead on Climate Change, Minister to Tell Conference, New Zealand Herald (Nov. 9, 2017), https://perma.cc/948P-GE4C.

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