Why CJ rejected Manus bid
The applicant (Boochani) is an asylum seeker accommodated at the Manus regional processing centre (MRPC) which closed on October 31, 2017.
In his substantive application, he claims declaratory and injunctive relief to enforce certain fundamental rights guaranteed under the Constitution which he claims have been breached or threatened to be breached by the respondents.
On 26 April 2016, the Supreme Court found the detention of asylum seekers held at the MRPC unconstitutional and illegal and ordered the closure of MRPC by the governments of Australia and Papua New Guinea.
It is now agreed between the parties in the present proceedings that on Tuesday Oct 31, the governments of PNG and Australia closed the MRPC in compliance with the Supreme Court decision.
The applicant is among other asylum seekers who have refused to move out of the closed MRPC and to move into three new transit centres situated some distance away from MRPC to accommodate the asylum seekers pending decisions on their future settlement.
The applicant claims that since the closure of the MRPC, “the respondents have inflicted extreme forms of punishment on the asylum seekers to force them to vacate the Centre and move to the ELTC or Hillside Haus or East Haus Camp, which clearly violate sections of the Constitution including Section 36 (1).
The second respondent say the transferees were given adequate notice of the impending closure of the MRPC and that the PNG government assisted by the government of Australia took steps to construct the new transit centres to accommodate the asylum seekers.
The transit centres offer accommodation facilities of good standard that are far better than those provided to other asylum seekers living in PNG.
The facilities offer air-conditioned rooms, dormitory style beds, communal bathrooms and spaces, laundry facilities and secure fencing.
The asylum seekers have complete freedom to move to and from the transit centres.
Bus service is also provided. Also provided are food, water, electricity, sanitation and sewerage, healthcare and living allowance at K280 per fortnight. Photographs of the facility and rooms are in evidence.
It is settled principle that the applicant must persuade the Court that there are serious questions to be tried on the substantive claim, the balance of convenience favours the grant of interim relief and damages would not be an adequate remedy.
If damages were an adequate remedy then even is the applicant has serious issues to be tried, the interim relief may be refused.
I am mindful that I am not dealing with the merits of the applicant’s substantive claim under which he is claiming the interim relief.
Both the governments of PNG and Australia, by agreement, closed the MRPC on 31st October 2017 at 5pm in compliance with the order of the Supreme Court.
In closing the MRPC, the governments of PNG and Australia discontinued supplies of food and drinking water, electricity, food, sewerage facilities, medical services, security and other services; and required the asylum seekers to vacate the MRPC and move into the three new centres. The asylum seekers were told that if they chose not to leave the MRPC and move into the three centres, they would do so at their own peril and would have to fend for themselves .
The new transit centres are situated some distance away from MRPC. They are the East Lorengau Transit Centre that has facilities to hold up to 400 asylum seekers who have been determined to be genuine “refugees”, the West Lorengau Transit Centre that can hold over 200 asylum seekers determined to be genuine “refugees”, and the Hillside Haus Transit Centre that can hold up to 200 asylum seekers determined to be “non-refugees”.
The continued presence of the asylum seekers is on the invitation of the PNG Government under exemption of entry requirements under the Migration Act granted by the Minister for Immigration in 2013, and on conditions that allow for the PNG Government to take responsibility over their presence and movement within PNG, and for the PNG Government to determine their refugee status and take responsibility to settle the asylum seekers.
Whilst they remain in PNG, the asylum seekers are subject to PNG laws and under PNG Government control.
What is not clear and I am unable to make any definitive and conclusive finding on the question whether the PNG Government takes sole responsibility, legally speaking, to cater for the future welfare of the asylum seekers after the closure of the MRPC.
In the absence of any conclusive determination by this Court of PNG’s international obligations for asylum seekers living in PNG, I am in no better position to make any definitive findings in that regard.
The same is said of Australia’s obligations under international law to the extent that Australia may have some responsibility over asylum seekers who were destined for Australia but redirected to PNG to process their refugee status on PNG soil.
It seems clear from the thrust of my preliminary finding that the Australia’s legal responsibility over the future welfare of the asylum seekers ended with the closure of MRPC which it operated. And it falls squarely on the government of PNG to take full responsibility over the future welfare of the asylum seekers.
The PNG Government is duty-bound to take all necessary steps under its obligations under the Migration Act and its obligations under international law to cater for the future welfare and destiny of asylum seekers. Australia’s involvement in terms of any assistance it may provide to the PNG Government under any mutual arrangements remain largely if not purely a moral responsibility, given that the asylum seekers were Australia-bound when they were redirected to PNG for PNG assistance to process their refugee status.
The PNG Government, a sovereign nation, in its own right and with its eyes wide open, accepted full responsibility in the first place to accept these asylum seekers to enter PNG and it is duty-bound under domestic and international law to complete the task in settling their future appropriately in accordance with law.
When this point is understood and accepted by everyone concerned and especially the asylum seekers, then it really may not matter which transit accommodation facility situated in PNG or on Manus Island the asylum seekers are accommodated.
There is little to no advantage to be gained by any asylum seeker insisting on remaining at MRPC because Australia’s involvement in maintaining the MRPC has ceased.
The impression I have formed from seeing pictures of new the facilities is that they appear to be of good quality.
With regard the application for interim relief, I am satisfied that the government of PNG with the assistance of the Australian government have provided alternative accommodation at three sites outside the MRPC compound that allow for free movement and access by the asylum seekers, that the services provided are of good standard and that the allowances paid to the asylum seekers are sufficient for their daily sustenance.
There is no real good reason why they should not voluntarily move to those new facilities.
The security and safety concerns, the intimidation and harassment complained of, cuts to services in water and food and the like in the closed MRPC occurred in the process of closing the MRPC.
These are the sorts of things that are normally expected in a situations like the current situation where the MRPC has been closed under compulsion of a Supreme Court order and asylum seekers are required to vacate the MRPC and move into new facilities that are built purposely to afford the free exercise of their Constitutional rights. If the asylum seekers suffered any injury from those actions taken by the officers employed by the governments of PNG or even Australia, the asylum seekers’ remedy lies in damages.
I am persuaded that some of the Constitutional rights under the provisions of the Constitution may have been breached in terms of withdrawal of basis services including food and drinking water and medical services, threat and intimidation to their person and that those are likely to continue as long as the asylum seekers remain in the closed MRPC.
On the one hand, it is fair to say that the asylum seekers have brought those upon themselves in refusing to vacate the premises and move into the new transit centres.
It is in the applicant’s own interest that he leaves the closed MRPC facility and move into ELTC or HHC because he has been granted “refugee status”.
On the other hand, those breaches or imminent breaches have occurred out of the government’s heavy handed tactics to pressure and force the asylum seekers out of the closed MRPC.
I am satisfied that the applicant’s remedy for the breach of his Constitutional rights lies in damages. In all the circumstances, the balance of convenience favours respondents more so than the applicant.
For the foregoing reasons, the application for interim relief is refused.