Australian Human Rights Commission Submission to UN Committee Against Torture, 17 October 2014 175. Under the third country processing arrangements, the Minister has the discretion to consider assurances from a country that it will not send asylum seekers to another country where they are at risk of refoulement, and to exempt a person from being transferred to a ‘regional processing country’ if issues arise in relation to Australia’s non-refoulement obligations. 176. These discretionary powers do not provide adequate safeguards against breaches by the Australian Government of its non-refoulement obligations. Broad and non-compellable discretionary powers leave the Minister with the power to decide whether or not to expose individual asylum seekers to the risk of violations of their human rights. 177. The principle of non-refoulement under the Refugee Convention and its Protocol119 requires States to provide asylum seekers with effective access to ‘fair and efficient asylum procedures’. UNHCR has expressed concern about the refugee status determination framework and procedures currently provided in Nauru and PNG. 178. The Commission has particular concerns about the removal of any LGBTI asylum seekers to a country in which homosexual activity is criminalised, as it is in PNG. The Australian Government stated that LGBTI asylum seekers arriving after 19 July 2013 would not be exempt from transfer to PNG. (b) Arbitrary detention 179. To date, both the Nauru and Manus Island processing centres are closed detention centres, allowing asylum seekers no freedom of movement. No timeframe has been given as to when or if the facilities will be transitioned to open facilities. 180. All transferees, including children, have been subjected to mandatory detention. There is no individualised assessment of the need for detention. Asylum seekers on Nauru and Manus Island have been subjected to lengthy periods in detention during which no processing was taking place. 181. The PJCHR has similarly concluded that the delays in processing and continued detention of asylum seekers ‘appears to constitute arbitrary detention’. In June 2013, UNHCR found that the practice of mandatory and indefinite detention on Manus Island was arbitrary and therefore in breach of the ICCPR. (c) Conditions of detention 182. The Commission is concerned about the numerous reports that highlight the poor conditions in the regional processing centres, and the impacts on the physical and mental health of detainees. In particular, claims have emerged of repeated incidents of self-harm and attempted suicide on both Nauru and Manus Island, as well as claims of rape and ill-treatment on Manus Island. 183. Prolonged detention had devastating impacts on some asylum seekers who were detained on Nauru and Manus Island between 2001 and 2008. Some were diagnosed with a range of mental illnesses including depression, anxiety, 43