After three years of murders, hunger strikes, mass protests and forcing people to live in some of the worst conditions imaginable, the Supreme Court of Papua New Guinea ruled on April 26 that detaining asylum seekers in the Manus Island Detention Centre is a breach of the country's constitution.
In the same week, Omid, an Iranian refugee who had been forcibly resettled on Nauru, self-immolated in front of UNHCR inspectors because he could not “take it anymore”.
The PNG constitution states “No person shall be deprived of his personal liberty”. As none of the 850 asylum seekers in detention on Manus Island have been charged or convicted of a crime, it is illegal to detain them.
The PNG Prime Minister Peter O'Neill “welcomed this outcome” in an announcement on April 27. He said the detention centre will be shut immediately and is asking the Australian government to make alternative arrangements for the 850 asylum seekers detained there.
He went on to say the detention centre “has done a lot more damage than probably anything else”.
In previous months, O'Neill has also said PNG does not have the resources to resettle all the asylum seekers in the detention centre in the PNG community.
Kurdish journalist and asylum seeker Behrouz Boochani wrote on Facebook: “Today I experienced two happinesses: one for feeling freedom and another for PNG, who did not surrender to Australian pressures and selected humanity and justice.”
Asylum seekers initially celebrated the result, dancing and shouting “freedom”. Now they are in a tense and fearful wait for immigration minister Peter Dutton to make a decision about their immediate future.
The federal government has not given a clear response, apart from continuing the policy that no one who comes by boat will be resettled in Australia.
Initially Dutton claimed it was a PNG Supreme Court decision and thus PNG's problem, not Australia's. He also said that asylum seekers on Manus Island who are slated to be deported to Iran but who are not accepted by the Iranian government, are PNG's problem.
Dutton has hinted that “there is an opportunity for the detention centre to remain in place in a different form”, suggesting an “open-style centre arrangement … may deal with some of the judges' concerns”.
During the recent High Court case in Australia that challenged offshore detention, the Nauru Detention Centre was turned into an open centre to strengthen the government's case. But the PNG government wants to close the centre and end its partnership with Australia's detention regime, so it is hard to see how this will come about.
Dutton has left open the option of moving asylum seekers to Nauru or Christmas Island, saying there is room in both detention centres.
Human rights abuses on Manus Island
Manus Island Detention Centre has a long history of human rights abuses since it was re-opened in 2012 under the Julia Gillard government. These abuses increased in 2013 when the Kevin Rudd government introduced offshore resettlement in PNG and Nauru, with the claim that no asylum seeker found to be a refugee would be resettled in Australia.
The Manus Island Detention Centre has been the focus of protests by refugee activists in Australia, particularly in relation to the horrendous conditions that have led to multiple deaths of healthy young men.
In 2014, 24-year-old Iranian asylum seeker Hamid Khazaei died from septicaemia. It was caused by a small cut to his foot that became worse without treatment as he was forced every day to live among the sewage, flooding, tropical disease, snakes, overcrowded tents and sweltering heat that is Manus Island Detention Centre.
He made multiple requests for medical assistance, all of which were denied. He was told there was nothing to worry about by International Health and Medical Services, the private company that has the health contracts for Australia's detention centres.
In an inquest into his death released this month, doctors involved in his treatment said repeated calls for him to be immediately evacuated to Australia when his condition worsened were either delayed or ignored. This probably cost him his life.
Earlier the same year, Reza Berati, a 23-year-old Kurdish asylum seeker, was beaten to death during an attack in the Manus Island Detention Centre by guards and local vigilantes. This sparked the biggest vigils and protests in Australia against offshore detention and resettlement, as Berati became a symbol of the worst aspects of detention.
In January last year, more than 700 asylum seekers on Manus Island went on hunger strike to protest against the conditions in the centre, plans to resettle them in PNG rather than Australia and the time their refugee assessments were taking.
The key witness in the Berati murder trial, Benham Satah, has faced multiple death threats and harassment from guards and locals. All his requests to be transferred to Australia were denied.
In April, two Manus Islanders who worked at the detention centre were convicted of Berati's murder. They each faced five years in prison. Asylum seekers have spent almost as long in offshore detention, without charge or trial.
However, the convicted guards were given lesser sentences, as there were other people involved, allegedly including an Australian and a New Zealand guard. PNG police have said they have had difficulties extraditing them to PNG to face court.
Asylum seekers feel that there is still no justice for Berati, as the people responsible for the situation — the Australian government — have not been brought to justice.
Restructure and PNG resettlement
In the weeks leading up to the court decision, the detention centre was restructured. Detainees have been separated into different compounds depending on whether their refugee claims have received positive or negative assessments. In the process, friendships and communities that have helped people survive 33 months of detention have been broken up, diluting their ability to organise protests.
PNG accepts a significantly lower percentage of refugee claims than Nauru — 58% compared to Nauru's 85%. Many asylum seekers are at risk of deportation.
Forty-five people are refusing to submit their refugee claims to PNG, arguing that it is not a United Nations High Commissioner for Refugees (UNHCR) resettlement participant and as they went to Australia first, they want to submit it to Australia or another UNHCR signatory country. In a letter they said: “There are just 27 countries in the world that participate in the UNHCR resettlement program. We would like to resettle in any of them. PNG is not one of them.”
Among them is Behrouz Boochani who fled Iran in 2013. Since being imprisoned on Manus Island, he has been under a lot of pressure to submit a refugee claim to PNG and resettle in PNG.
On April 24 he sat at the top of a tree for ten hours in protest, saying: “This is not a mental problem, this is political” and “I know you can understand deeply my situation as a man who has been imprisoned for about three years without any crime. I am a political prisoner.”
Refugees on Nauru have similar reasons for not wanting to be resettled there, despite the Australian government still saying they will never make it to Australia.
But Nauru is the most likely destination for asylum seekers currently on Manus Island. On April 27 the Australian government forcefully transferred three asylum seekers from Brisbane immigration transit accommodation to Nauru. They had been here for medical treatment. There are concerns more asylum seekers currently in Australia may be transferred to Nauru imminently.
Last week Nauru was in a state of crisis. Four people, including two teenagers, drank washing powder in a suicide attempt. Two Iranian refugee women on Nauru have also gone missing and no attempt has been made to locate them.
Then on April 27, Omid, a 23-year-old Iranian asylum seeker on Nauru, self-immolated in front of UNHCR workers and his wife, saying beforehand: “This is how tired we are. This action will prove how exhausted we are. I cannot take it anymore.”
Dutton has called it a political act and he was not transferred to Australia until the following morning. He has since died, but doctors told his wife that if he had been transferred to Australia earlier he may have lived. His is the third death in three years where a refugee has self-immolated in response to feelings of hopelessness and suffering inflicted by the detention system.
Asylum seekers in Nauru detention centre have been wearing t-shirts with “Omid” painted on them as they continue daily protests in Nauru detention centre that started on March 20 and are now approaching 50 days.
It is in this context of years of protests in Nauru, hungers strikes in Manus Island, asylum seekers risking their lives to get information out about the conditions in detention and mass rallies in Australia, that the PNG Supreme Court made its decision. It is in this context of growing public outrage and compassion that the refugee movement can bring them here, let them stay and end mandatory detention.