The detention of asylum seekers and refugees on Manus Island is illegal, the Papua New Guinea Supreme Court has ruled, finding it to be in breach of the country’s constitution.
Australia pays Papua New Guinea and the tiny Pacific island nation of Nauru to hold asylum seekers who try to reach its shores by boat in detention camps.
The full bench of the court ruled the incarceration of asylum seekers and refugees was in breach of their personal liberty, and ordered both the PNG and Australian governments to immediately begin making arrangements to move people out of detention.
The decision has been welcomed by detainees, human rights organisations, and advocates, but Australia’s immigration minister, Peter Dutton, said it “does not alter Australia’s border protection policies – they remain unchanged”.
“Australia was not a party to the legal proceedings,” he said.
Dutton said those in the Manus Island processing centre found to be refugees would be able to resettle in PNG. Those found not to be refugees should return to their country of origin, he said.
The PNG government has said it intended to close down the centre, but had given no timetable. The foreign minister, Rimbink Pato, told media it would remain open as long as was necessary.
In Tuesday’s ruling the majority judgment found that “the undisputed facts clearly reveal that the asylum seekers had no intention of entering and remaining in PNG. Their destination was and continues to be Australia. They did not enter PNG and do not remain in PNG on their own accord.
“It was the joint efforts of the Australian and PNG governments that has seen the asylum seekers brought into PNG and kept at the Manus Island Processing Centre against their will. These arrangements were outside the constitutional and legal framework in PNG … the forceful bringing into and detention of the asylum seekers on MIPC is unconstitutional and is therefore illegal.”
The ruling was written by Justices Kandakasi and Higgins, and agreed to by all other members of the bench.
In summary, the court found that:
- Asylum seekers being “brought to PNG by the Australian government and detained” is contrary to their rights of personal liberty under the PNG constitution
- The detention and treatment of asylum seekers unconstitutional, and beyond the powers afforded by the Migration Act
- A 2014 amendment to citizenship law is unconstitutional and invalid
- The detention of asylum seekers on Manus Island purportedly pursuant to that now invalid 2014 amendment is unconstitutional and illegal
- Both the PNG and Australian governments must “forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention” of asylum seekers and transferees, and the “continued breach ... of their constitutional and human rights”
Stateless Rohingyan refugee Imran Mohammad Fazal Hoque told the Guardian from Oscar compound that he was feeling “very positive” about the court’s ruling.
“I am very happy because there are a lot of happy faces that have been covered with sadness for the last three years.”
However, the 22-year-old said his excitement at the judgment was tempered by a mistrust that the authorities might change the detention regime again, in an effort to circumvent the court’s ruling.
“It overwhelms me at times. I think it’s a turning point. However, it’s hard to believe politics.
“I have been persecuted and deprived of my basic human rights since I was born right up until now. I have never known safety or peace, and I have never known citizenship or a right to call any country my own. My eyes have no more tears as they have dried out and my body doesn’t feel pain any more.”
Iranian refugee Behrouz Boochani, who has volubly protested his detention and refused to make his refugee claim to the PNG government, said the court’s ruling was “incredibly good news”.
“Today is a historical day in our life. The people in detention cannot believe that news because they have heard a lot of positive news rumours. They are very happy but scared to show it. I am really happy that eventually we have great news, and can feel freedom.”
Boochani said the Australian government must now “close its Guantanamo”.
Detention centre manager Broadspectrum has been trying to transition the detention centre to a quasi-open camp model, giving those men found to be refugees the opportunity to leave the centre under certain conditions between 7am and 4pm.
However, the men would not be able to leave of their own volition – they have to be driven out by bus – because the detention centre is housed within a PNG naval base.
Those men who have been found not to have a valid refugee status claim would not have been permitted to leave.
The supreme court ruling said the detention of both groups of men – who have been separated inside the centre – was unconstitutional.
The court criticised the respondents – Pato, the PNG national executive and the state of PNG – for delaying the case at several points. In its findings the court said the parties had frequently and “for no good reason” failed to comply with orders and directions, to cooperate with the applicant’s lawyers and to have the matter prosecuted without delay.
Manus MP, Ron Knight said regardless of this ruling, the Australian and PNG governments had made promises to the Manus community in return for establishing the centre there, and were obliged to follow through. ‘It’s not our fault this happened - we’ve been promised certain things still yet to be fulfilled,” he said.
“If it has to be closed down it has to be closed down, but we still need our roads fixed.”
The Australia director of Human Rights Watch, Elaine Pearson, said it was a “massive victory” for the asylum seekers and refugees.
“PNG’s supreme court has recognised that detaining people who have committed no crime is wrong. For these men, their only mistake was to try to seek sanctuary in Australia – that doesn’t deserve years in limbo locked up in a remote island prison.”
Pearson said Manus Island detention centre should be closed and never reopened. She said those men found to be refugees should be granted permanent resettlement in countries that have capacity to resettle them, “starting with Australia”.
Aurora Adams, a human rights campaigner with GetUp said the Manus detainees needed to be brought to Australia.
“People have been detained for over three years in contravention to the laws of Papua New Guinea in abusive conditions. It is time to stop the abuse of vulnerable people who only ask for safety and the opportunity to rebuild their lives.”
Save the Children’s chief executive, Paul Ronalds, said the court’s decision was a chance for Australia’s to “rethink its refugee policy”, arguing the Manus detention centre was always unsustainable.
“The offshore detention facility on Manus Island has undermined our relationship with Papua New Guinea. We’ve lost any leverage to push for improvements in the way our significant aid investment is spent, or to push for improvements to governance and the rule of law.
“Now is the opportunity to engage in genuine discussions with our regional neighbours, particularly Indonesia and Malaysia as well as Papua New Guinea, and to develop a truly region solution to the global refugee crisis.”
The Australian Labor party’s immigration spokesman, Richard Marles, said “the PNG supreme court’s ruling that the detention of asylum seekers at the Manus Island facility is illegal is of significant concern to Labor”.
“Labor is seeking an assurance from the government that it has a contingency plan to deal with today’s ruling,” he said.
