“It would be so nice if something made sense for a change,”Alice thought at one point of her surreal journey through Wonderland.  For the 888 residents of the rather more Dantean netherworld we know as the Manus Island detention centre, faint hopes of something making sense continue to be trailed in front of them and snatched away, not quickly but with agonising indifference.

This week, a particularly cruel blow has been struck by an institution that, the asylum seekers had had reason to think, might be their saviour.

In April 2016, I wrote this:

“The Supreme Court of Papua New Guinea has done to Manus Island what the High Court of Australia should have done to Nauru: shut it down.”

After years of one-way traffic down the road of indefinite detention facilitated by ever-widening exercises of executive power with judicial acquiescence (especially from the High Court and exemplified by its rubber stamping of the legal fictions by which Australia pretends to have no responsibility for the asylum seekers on Nauru), the PNG court’s stunning intervention raised cause for real hope.

The court ruled that the entire set of arrangements between Australia and PNG, under which asylum seekers were removed forcibly to Manus and detained there at Australia’s cost, was illegal under the PNG constitution. It ordered the Manus Island centre to be closed.

Hooray, thought I, now the PNG government will put real pressure on Australia to take these poor people back or find a safe third country option, because one thing’s for sure: Manus Island must be closed. I even wrote those words.

So figure this. The PNG Supreme Court (same court but different judges) has issued a new ruling, rejecting an application by 166 of the Manus residents for an urgent injunction to prevent the PNG government from deporting them. In doing so, the Chief Justice referred to the earlier closure order and stated that:

“The [PNG government] complied with the Court order and closed the MIRPC … By [May 2016] the transferees were allowed to move freely in and out of the MIRPC and later when the MIRPC was shut down completely, they were accommodated at the nearby PNGDF Navy base (Lombrum base).”

Awesome. clearly the PNG government took the court seriously, closed the camp and moved them to convenient and secure alternative accommodation while finalising their processing.

Except for one thing, as explained by Amir, one of the Manus refugees, in a messaging exchange with BuzzFeed News:

“We haven’t been moved at all … I am still sleeping in the same bed now in the same compound in the same centre in the same area.”

Ah. The Lombrum Navy base and the MIRPC, it turns out, are the same thing. It is true that, very shortly after last year’s court ruling, the detention centre gates were opened and the detainees have since then been theoretically free to go out and sample the varied delights of Manus Island. Of course, the local residents of Manus have previously expressed their welcome by invading the camp and trying to kill the inmates (successfully, in one case).

In terms of legal sophistry, the Chief Justice might feel comfortable concluding that changing the sign over the gate means that the detention centre is now “closed” and its former inmates are now voluntarily living in what used to be that detention centre but is now a completely different beast. In practical reality, nothing’s changed.

The Court made some other interesting observations in its recent ruling.  The Chief Justice noted that, of the current 888 asylum seekers on Manus (which is actually a higher number than were recorded as being there this time last year), 614 have been determined by the PNG authorities to be refugees, 205 have had their refugee applications refused, and 69 haven’t been processed yet.

The Chief Justice concluded that the process by which these outcomes have been produced “reflects a carefully thought out and applied process that has produced a fair outcome for this group of asylum seekers”. He did not reach this conclusion based on evidence of the process itself, however; rather, he inferred it from the numbers. Noting the proportion of asylum seekers who have been determined to be refugees, he said: “A screening and decision-making process that yields a very high percentage (69%) of asylum seekers receiving ‘refugee’ status bespeaks of a process that has been fair and merit-based.”

It could equally bespeak a process that had predetermined proportional outcomes and otherwise entirely random decision-making. We have no way of knowing, because the PNG process is entirely opaque, and nor does the Chief Justice. He’s guessing, in a most unjudicial way.

Another extraordinary conclusion reached by the court concerned one of the elements of its discretion in deciding whether to put a stop to any putative deportations. It acknowledged, at one point, that those asylum seekers who have been denied refugee status were at risk now of being deported by PNG back to their home countries. Their substantive case is that, because they were sent to PNG and have been held there against their will and illegally, PNG cannot lawfully deal with their refugee claims. Those claims should properly always have been a matter for Australia, which is the country in which they sought asylum (as they were entitled to do under the UN Refugee Convention). Therefore, PNG cannot lawfully deport them either.

Nevertheless, the court decided that, even if the asylum seekers were ultimately right about that, they still didn’t need an injunction because damages would be an adequate remedy for any harm they suffered. The court reached this conclusion because, it said, PNG could only send them “to a country, of which they are not a citizen, if that country consents”. Which is true, but the actual risk they’re facing is forced return to the country of their citizenship, from which they fled in the first place.

As the court has already found that these people’s detention in PNG results from an illegal agreement, it follows surely that PNG has no right to determine their refugee claims. Therefore, any deportation by it is also illegal. If they are then tortured, imprisoned or killed in their home country, talk of damages is just an insult.

Overall, this decision represents a complete about-face by PNG’s highest court. It’s disappointingly lazy and clearly, in my view, written with the desired end of washing judicial hands of the whole mess and letting the government get on with the dirty business of deportation.

For the benighted residents of the Manus Island detention centre, or whatever we’re calling it this week, it’s just another calibrated blow to their hopes for a normal life.  The court’s cynical rejection, coming on top of the fanciful promise that they might make it through Trump’s extreme vetting and be taken in by the USA, is beyond cruel.  They could be forgiven for thinking that they are friendless in the world. 

Peter Fray

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