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US/Australia: Refugee Deal Trades in Human Lives

Agreement to Swap Refugees Flouts International Law

(New York) - A deal between the United States and Australia to trade refugees housed at Guantanamo Bay for those held on the island nation of Nauru upends international refugee standards, Human Rights Watch said today.

“Refugees are human beings, not products that countries can broker and trade,” said Bill Frelick, Refugee Policy director at Human Rights Watch. “The United States and Australia have signed a deal that bargains with lives and flouts international law.”

Under the deal announced on April 18, some 90 Sri Lankan and Burmese refugees now held at an Australian-run immigration detention camp on the Pacific island nation of Nauru would be sent to live in the United States. Up to 200 refugees could be sent each year. Australia, in turn, would take up to 200 Cuban and Haitian refugees held at the US Navy base at Guantanamo Bay, Cuba.

The Australian and US authorities have subjected their respective interdicted asylum seekers to refugee status determination procedures. Australia keeps asylum seekers, even those determined to be genuine refugees, on Nauru as a part of its efforts to avoid its legal obligations to refugees. Now refugees who were found to have a well-founded fear of persecution will be transported half-way around the world.

“The only conceivable reason for this ‘refugee swap’ is to deter future asylum seekers from trying to reach the United States or Australia by boat,” said Frelick. “Yet, international refugee protection principles hold that detention and similar measures should never be used solely as a deterrent to other would-be refugees.”

Human Rights Watch said that it is already difficult to be identified as a genuine refugee by US authorities at Guantanamo or the Australians on Nauru. The Haitians and Cubans must first have passed shipboard screening immediately after being picked up at sea, before even being brought to Guantanamo, and then must convince an immigration official that they are genuine refugees. In this situation, they do not have the access to a lawyer or judicial review that they would have on US territory.

By housing refugees on Nauru and at Guantanamo Bay, Australia and the US are trying to avoid their legal obligations under the 1951 Refugee Convention. The trade deal violates the spirit of the legal obligation not to expel a refugee, except for national security reasons and only after a decision in accordance with due process standards. Neither government cited any national security rationales for the exchange in refugees.

The deal – seemingly designed to deter refugees by frustrating their desire to join relatives and émigré communities at a nearby destination – also violates longstanding principles in refugee law that countries should endeavor to keep refugees unified with family members. The international conference that adopted the 1951 Refugee Convention called on governments to ensure that “the unity of the refugee’s family is maintained.” Often, Haitians and Cubans identified as refugees at Guantanamo Bay have family members already inside the United States.

“In many other aspects of US and Australian law, family unity is of utmost importance,” Frelick said. “The US Supreme Court has even called keeping families together ‘an enduring American tradition,’ but apparently that doesn’t apply if you’re a genuine refugee, fleeing persecution.”

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