Introduction
Over many years, Australia has been externalising its asylum procedures, leading to an “ever-harsher” state policy as described by Emilie McDonnell, Adjunct Senior Researcher at the University of Tasmania School of Law. The process has led Australia to shift its protection obligations and responsibilities, as set out in international human rights instruments and the refugee law framework, onto other countries, such as Nauru, effectively enabling Australia to circumvent treaty provisions and principles explicitly agreed to in the past.
The paper at hand aims to shed light on how Australia’s asylum system, within which Nauru plays an instrumental part, potentially disregards international human rights and refugee law standards. First, the main characteristics of Regional Processing Centres, the epicentres of the externalised asylum procedure, are explored. Second, the international community’s opinion of the outsourced application process is presented, highlighting the reactions of the United Nations and several non-governmental organisations. Third, the paper provides an overview of the concept of externalisation and its impacts. Fourth, this is followed by a thorough analysis which examines Australia’s possible rights violations, with a focus on the principle of non-refoulement. Finally, a brief conclusion summarises the key takeaways of the research paper.
Australia’s Asylum Mechanism
2.1. Regional Processing Centres
Australia’s externalisation approach primarily affects asylum seekers and refugees who arrive by boat to the shores of the continent. These individuals are barred from entering the country’s territory and are redirected back to their country of departure or subjected to an outsourced asylum process in a third country after being physically transferred there. Between August 2012 and June 2025, Nauru and Manus Island in Papua New Guinea received 4,296 individuals who lacked valid visa documentation to enter Australia for offshore processing of their asylum claims under this procedure.
Focusing on Nauru, in its territory, Australia operates a privately run establishment, called a Regional Processing Centre (RPC), where people are directed following Australia’s refusal to allow them to enter the country. In a 2016 report by Human Rights Watch (HRW), the RPC has been described as “prison-like camps”, where people are kept under the supervision of security services and are enclosed by fences. Here, individuals face challenging conditions, including overcrowded tents made from vinyl, and within them temperatures of 45 to 50 degrees Celsius. Occasional heavy rains and severe floods in the camps further exacerbate the already difficult living circumstances. A 2016 press release by Amnesty International touches upon the story of a man who was detained at the RPC. According to the asylum seeker’s statement, “When we came to this place [the RPC], we found tents in a jungle. They put eight families together, with six kids, young kids, under one tent. Every day, every night, we had no rest. No sleep. Every day, the kids would fight because they were so close together”. The man also added that “Most of the day, they kept the water locked up. They just gave us a small amount. It wasn’t enough, with the strong sun. Sometimes we couldn’t shower for two or three days. The kids started getting bad skin. We suffered these problems for two years”. Additionally, HRW’s report details that the asylum seekers and refugees in the RPC are surrounded by mouldy walls, only allowed to take two-minute showers, and fall victim to frequent searches, along with the confiscation of “prohibited” objects (e.g., food and sewing needles). The extensive list of inadequacies and struggles endured by the people subjected to the outsourced asylum mechanism in Nauru corroborates the need to analyse Australia’s responsibility, given its role as the architect behind the procedure.
2.2. Widespread Condemnation
Australia has been criticised on multiple grounds concerning its asylum framework. The most significant institutional critique of the system came from the UN Human Rights Committee (UNHRC) in January 2025, in two landmark rulings, namely M.I. et al. v Australia and Nabhari v Australia. The cases concerned a group of 25 asylum seekers and refugees comprising of 24 minors, who fell victim to ill-treatment at the RPC based in Nauru following their transfer there by Australian authorities in 2014. The individuals were fleeing countries such as Afghanistan, Iran, Iraq, Myanmar, Pakistan, and Sri Lanka. On the case, Mahjoub El Haiba, a member of the UNHRC, commented that “A State party cannot escape its human rights responsibility when outsourcing asylum processing to another State”. In M.I. et al. v Australia, the UNHRC established that the island state violated Article 9 (1) and (4) of the International Covenant on Civil and Political Rights (ICCPR) by arbitrarily detaining the asylum-seekers and refugees in Nauru under Australia’s offshore processing system. Similarly, in the case of Nabhari v Australia, it was held that Article 9 (1) of the ICCPR was violated by Australia because of the applicant’s arbitrary detention.
The outsourced asylum mechanism has also been condemned by several human rights watchdogs. In a March 1st, 2026 news release by HRW, the system was labelled as an “abusive offshore regime”, in which the financially burdensome impact on the government and taxpayer was also detailed. Annabel Henessy, Australia researcher at HRW, stated in this regard that “Australia has spent billions of dollars trying to offload its responsibilities onto poorer countries instead of upholding its international obligations to migrants and refugees”. Moreover, Amnesty International in a July 18th, 2025, publication, criticised the State for the externalised asylum process coupled with prolonged detention, emphasising the severe and long-term harm suffered by individuals. The NGO also urged the evacuation of the camps to which the refugees and asylum-seekers were transferred and pointed out that, by being party to the 1951 Convention relating to the Status of Refugees, Australia is responsible for safeguarding those seeking safety in such circumstances. Nevertheless, despite being condemned by global human rights groups and by domestic bodies, the process has not been changed. For instance, the Refugee Council of Australia on August 17th, 2022, reported that the national policies imposed by the island state do not adhere to international standards and are in violation of the right to seek asylum, as well as other fundamental rights. Additionally, it was highlighted by the NGO that the principle of non-refoulement, which is a cornerstone of refugee law, is equally not guaranteed under the system.
The Link between Externalisation & Non-Refoulement
3.1. What is Externalisation and Why is it Relevant?
According to the definition provided by Nicolosi in a 2024 study, the extraterritorial processing of asylum claims entails a sequence of practices via which states aim to handle migration and enforce migration-related policies beyond their territories. This externalised approach is generally achieved through collaboration with third countries or private entities. Australia’s externalisation of asylum has been portrayed as a system creating a “dangerous global precedent”, characterised by “punitive and harmful measures”, and shifting responsibility to other, poorer countries. Australia’s situation is especially paradoxical in this context, as it has provided refuge to more than 950,000 refugees since World War II. However, recent governments have significantly departed from this approach through the implementation of externalised measures.
A briefing summarising the 2025 General Assembly report (A/80/302) of the UN Special Rapporteur on the Human Rights of Migrants, outlines the various potential harms of externalisation policies. Such practices may lead to refoulement or chain refoulement, since people are possibly redirected to unsafe countries. It also opens avenues for collective expulsions and arbitrary detention in facilities of inadequate standards. Furthermore, there is the substantial threat of due process barriers, including restricted access to asylum procedures, and the increased possibility of being subjected to further forms of ill-treatment. Finally, because of the externalised model, significant socio-economic deprivations may arise (e.g., non-adequate healthcare), and the lack of transparency coupled with minimal supervision facilitates potential rights violations.
3.2. Analysis Through the Lens of Non-Refoulement
Since the UN highlighted refoulement as one of the primary issues stemming from externalised asylum procedures, which has also been highlighted by scholars in the field, it is therefore pertinent to examine Australia’s offshore processing practice through this lens. The principle of non-refoulement is set out in Article 33(1) of the 1951 Convention relating to the Status of Refugees, which states the following: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Despite originating from refugee law, the principle has since become a firmly established component of international human rights law and humanitarian law.
In the human rights dimension, a refoulement violation arises only if the state has jurisdiction over the individuals concerned, which is not limited to events occurring within the state’s territory. Jurisdiction in this sense also applies to the territorial sea of the state, as well as if effective control is exercised by the state’s authorities over the persons. This extraterritorial dimension of jurisdiction is essential from Australia’s point of view in two respects. First, the island state’s authorities regularly intercept boats carrying refugees or asylum seekers in territorial waters or on the high seas. This possibly reaches the threshold of extraterritorial jurisdiction, given that “[…] if migrants find themselves in the territorial sea of a State or to the extent that a State exercises effective control over individuals on a boat during interception or rescue operations (including on the high seas), it will be bound by the principle of non-refoulement”. Second, as mentioned above, the Australian officers physically handle these individuals, transferring them to third countries, such as Nauru. Hence, the direct physical contact with refugees and asylum seekers potentially qualifies as effective control by the state, even though the interceptions and transfers take place beyond the country’s territory.
The other elemental factor to consider when establishing a non-refoulement infringement is whether the state conducted a thorough, case-by-case assessment of the risks that may be faced by the persons upon return. According to the Australian Human Rights Commission, during boat turnbacks and takebacks, the onboard screenings by the officers fall short of adequate safeguards and access to legal assistance is not ensured in a sufficient manner. The rights body stresses that it is “[…] nearly impossible to fairly or thoroughly assess protection claims” due to the vague and unsettled circumstances. These include communications via teleconference, the review being conducted in the middle of the sea, and the potential applicant being detained by state officials. This description of the process indicates that Australia does not meet the threshold of in-depth and case-by-case assessment, thus satisfying the second criterion for establishing a refoulement violation.
Beyond procedural aspects, the principle of non-refoulement also concerns substantive elements. In the context of international human rights law, a substantive violation may arise if the individual faces the threat of torture, cruel, inhuman or degrading treatment upon transfer, including to a third country. People transferred to the RPC in Nauru have been subjected to prolonged detentions in inhuman circumstances, with no proper healthcare provided, while enduring severely degrading mental health effects. Refugees and asylum seekers “[…] have developed severe anxiety, inability to sleep, mood swings, prolonged depression, and short-term memory loss on the island”. Moreover, individuals encounter physical attacks, such as stoning or being struck by bottles. Intimidation and harassment are common, as refugees and asylum seekers noted being spat on or cursed at during their stay in Nauru. Additionally, assaults by locals happen on a regular basis, and women are frequently targeted in the form of sexual violence. The above-mentioned impacts strongly suggest that the severity threshold of ill-treatment is fulfilled, demonstrating Australia’s disregard of the principle of non-refoulement from the substantive law angle as well.
Conclusion
- This paper examined the asylum model of Australia, which operates an externalised regime in collaboration with the small island state of Nauru. Under this arrangement, Australia transfers refugees and asylum seekers, who are primarily intercepted on boats in the waters neighbouring the continent, to camps operated in Nauru. Here, individuals face multiple and overlapping forms of ill-treatment, including physical and mental degradation, assaults, and other inhuman conduct. In general, outsourced asylum systems have long been contested, especially because of the emerging refoulement concerns they raise. Based on the research, there is a substantial likelihood that Australia’s offshore processing of asylum claims violates the principle of non-refoulement, thereby indicating a failure to comply with Australia’s obligations under international human rights and refugee law.
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