Community arrangements for asylum seekers, refugees and stateless persons - Some barriers to use of community arrangements
Understand key barriers preventing asylum seekers, refugees and stateless persons from accessing community-based arrangements and support services in Australia.
Community arrangements for asylum seekers, refugees and stateless persons
Observations from visits conducted by the Australian Human Rights Commission from December 2011 to May 2012
5 Community arrangements for asylum seekers, refugees and stateless persons
6 Some barriers to use of community arrangements 6.1 The Commission's visits and interviews 6.2 Refugees who have received adverse security assessments 6.3 Refugees of interest to or who have been charged by the Australian Federal Police 6.4 Stateless persons
6.3 Refugees of interest to or who have been charged by the Australian Federal Police
6 Some barriers to use of community arrangements
Electrified fence, Villawood Immigration Detention Centre.
Despite the significant positive developments of the past two years, the Commission remains seriously concerned about some aspects of Australian law and policy on asylum seekers, refugees and immigration detention. The Commission is primarily concerned about the prolonged or indefinite detention and lack of durable solutions or substantive visa pathways for certain groups of people in immigration detention. These include stateless persons; refugees who have received adverse security assessments; and refugees who are of interest to or have been charged by the Australian Federal Police (AFP).
6.1 The Commission's visits and interviews
During its recent visits to Villawood IDC, Sydney IRH, Maribyrnong IDC and Melbourne ITA, the Commission interviewed over 50 people in detention and spoke informally to many others. The people with whom the Commission spoke were from Afghanistan, Sri Lanka, Burma, Iraq and Iran – a number of them stateless. Most of these people were men but Commission staff also spoke with women and children.
As has been noted, these visits focused on the circumstances and experiences of people who remain in closed detention with little or no prospect of a community placement or imminent resolution of their immigration status. The people with whom the Commission met included 27 refugees who have received adverse security assessments; seven people who are ‘of interest' to or have been charged by the AFP in relation to detention centre disturbances in early ߛ and 14 people who identify as stateless and have been found not to be refugees. There was some cross-over between these categories.
It is the Commission's practice to ensure that the identity of people who speak with Commission staff in the context of detention visits cannot be discerned through our reports. The quotes that follow are drawn from interviews between Commission staff and people in closed detention, and are grouped according to the categories noted above. Given the limited number of people from within these categories in each of the detention facilities visited by the Commission, identifying information has not been included alongside the quotes.
6.2 Refugees who have received adverse security assessments
The Commission has for several years raised a range of concerns about the processes and outcomes associated with security assessments conducted by ASIO in respect of refugees. [73] Some improvements have recently been made in this area. [74] Nevertheless, some of the Commission's most serious concerns about the human rights of refugees involve the legal framework governing the conduct of security assessments and the consequences of an adverse security assessment for a refugee.
The Commission's concerns with respect to ASIO security assessments are threefold. First, security assessment processes are subject to inadequate procedural safeguards, as refugees who have received adverse assessments are not told the reasons for ASIO's decision nor are they provided any substantive opportunity for appeal. Second, refugees with adverse security assessments are currently not considered for community placement but rather remain indefinitely detained in closed facilities. Many of these people have already spent prolonged periods in detention. Third, durable solutions are not being found for refugees who have received adverse security assessments.
(a) The security assessment requirement
Most classes of visas, including protection visas, contain a requirement that the applicant meet Public Interest Criterion 4002 of the Migration Regulations 1994 (Cth) (Migration Regulations), which states:
The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.
Accordingly, although a security assessment is not required prior to the grant of a visa, asylum seekers and refugees who do undergo an ASIO security assessment must not be assessed as being directly or indirectly a risk to security, otherwise they will not be granted a permanent visa to remain in Australia. The Australian Government's position is that ASIO security assessments should be conducted only after an asylum seeker has been recognised as a refugee. [75]
(b) The situation of people with adverse security assessments
“A thousand days have passed. There has been no change in our circumstances and we don't know what will be the future.”
“Inside here is mental torture. Every day I'm dying. In Sri Lanka, they can shoot me – one shot and I'm gone. Here I am dying every day.”
“I feel like a walking corpse. I feel like we are locked up in a dark room. We can't see the light in here.”
“Every day, every cell in my body is dying.”
“I despair at what this is doing to my son. He was born outdoors, when we were running from the war. All his life he has been running and in camps. There was just that one time of hope and safety for him – here in Australia, when it seemed as though we could make a new life. And now I see no future – for him or for me. I don't know how to protect him from my despair. I try to hide my feelings from him but they are overwhelming. He sees me upset and it is too much for him now.”
“My wife has left me now, because I have been away for so long, without being able to support them. I don't know how they are surviving. It is so dangerous where they are living. I worry about them so much ... I cannot bear to think about what their lives are now. It is only because I have children that I do not kill myself – even though it seems that I may never see them again. But I have thought of it many times.”
“Our feelings are numb; we are broken.”
“How can you live without a destination?”
“Limbo is my destiny. My future is dark. I'm looking for a candle to brighten my future.”
“I am scared. I cannot sleep, but I see strange and terrifying things at night, while I am awake. Things are not normal in my head now. And I no longer have any hope at all. I just keep asking my God for permission to join him.”
“Sometimes we shout at the managers here – because we are desperate, and they are our only relationships. But in fact, we know that they are doing what they can for us. They tell Government about our pain, but they cannot do more than that. We see, often, that they are suffering too.”
“I can't give them anything; I can't do anything for them. I will spend as much time as possible listening to them. And I've been screamed at for an hour – because I am the face of the Minister.” (Member of staff speaking of refugees with adverse security assessments)
As at 19 July 2012, there were 54 people in detention facilities in Australia who had been recognised as refugees but had received adverse security assessments. [76] There were also six children in closed detention who were living with their parents who had received adverse security assessments.
The Commission had concerns about the wellbeing of all people in detention it encountered during these visits. However, Commission staff were struck particularly by the acute levels of hopelessness and despair exhibited by refugees in this situation.
Almost all refugees with adverse security assessments who elected to speak with the Commission spoke about dying. Some people in this situation showed Commission staff letters which they had written to DIAC and to Members of Parliament, asking for a ‘mercy killing' to be arranged. Further, some people stated that they wished to donate their organs following their death, as they felt that this was all they were able to contribute to the society which they had hoped to join and which had sustained them over many months.
Commission staff held serious concerns for the immediate safety of many of the refugees with adverse security assessments with whom they met. The Commission understands that, since the time of its visits to detention facilities in April, at least one person in this position has made a serious attempt at suicide and another had a panic attack which required his hospitalisation. The Commission continues to hold grave concerns for the wellbeing and safety of the refugees who remain in Australia's detention facilities due to adverse security assessments.
(c) Procedural fairness
“They didn't tell us why. When you arrest a criminal, you have to tell them why. Is this the law in Australia?”
“If I had committed a crime, I wouldn't need the reasons because I would know them. They said I have a negative security clearance – how can I accept this when I haven't known what I have done?”
“They say we are a threat, but we have never thought of doing any of these things.”
“We respect ASIO; we know they are looking out for the security of their citizens. But how can we accept their decisions when we don't know what we have done? We're very confused and we don't understand.”
“Give me the opportunity for another interview. I believe something is missing.”
“Since the day I arrived, I've been stamped as a terrorist. What will people on the outside think? That we have done something wrong. If they come and speak to us, they will know we're not a terrorist. We want them to know the truth.”
As noted, refugees who have received adverse security assessments do not have to be provided with the reasons for ASIO's decision and have very limited access to independent review mechanisms. For this reason, in the view of the Commission, security assessments conducted by ASIO are subject to inadequate procedural safeguards. This is particularly troubling given the magnitude of the consequences of an adverse assessment, namely, the deprivation of a person's liberty for an indefinite period of time.
When ASIO furnishes an adverse security assessment in respect of a person to a Commonwealth agency, the agency is ordinarily required by law to give the person who is the subject of the assessment a notice informing them of the making of the assessment and a copy of the assessment. [77] However, this requirement does not extend to adverse security assessments regarding proposed actions taken under the Migration Act in relation to a person who is not an Australian citizen, the holder of a permanent visa or the holder of a special category visa. [78] In practice, people in this situation are not provided with the reasons for their security assessments.
Accordingly, refugees who are the subject of an adverse security assessment are not advised of the grounds upon which they have received their assessment, nor are they provided with the information necessary to challenge it. Provision of such information could prevent the identification of critical errors, such as errors concerning a person's identity or the bona fides of an informant.
Even if a refugee subject to an adverse security assessment were provided with the information on which that assessment was based, he or she would have extremely limited opportunities to appeal it.
Merits review through the Administrative Appeals Tribunal of security assessments in relation to proposed actions taken under the Migration Act is not available to people who are neither Australian citizens nor the holders of permanent or special category visas. [79] This includes recognised refugees awaiting the grant of protection visas.
Further, substantive judicial review of adverse security assessments is effectively unavailable to refugees, even though the High Court of Australia has held that ASIO decisions are subject to judicial review. [80] This is primarily because Australian courts cannot consider the merits of an adverse assessment but are limited to considering jurisdictional error.
That the legal framework governing ASIO security assessments contains inadequate procedural safeguards has created a powerful sense of injustice, confusion and frustration among refugees with adverse assessments who remain in detention. Many people who spoke to the Commission about their adverse security assessments expressed bewilderment as to the reasons for their assessment. Some told the Commission that they had received an adverse assessment without even having been interviewed by ASIO; others said they were interviewed at a time when they were awaiting supporting documentation from their country of origin, which they received shortly after the interview occurred. Most refugees with adverse assessments expressed distress and significant dismay at their inability to challenge their assessments, stating that they were convinced that some mistake had been made. For example, one man told the Commission he believed he had received an adverse security assessment due to a mix-up in relation to his name.
In the Commission's view, the following procedural safeguards should be introduced in Australia.
- Any person in Australia who has been refused a visa as a result of an adverse security assessment – including a person who is not an Australian citizen, the holder of a permanent visa or the holder of a special category visa – should be provided with information to enable them to be reasonably informed of the information that ASIO has relied upon and the grounds for making the determination.
- Administrative Appeals Tribunal review should be extended to all people in Australia who have been refused a visa as a result of an adverse security assessment – including people who are not Australian citizens, the holders of a permanent visa or the holders of a special category visa. Review of adverse security assessments should be conducted by the Security Division of the Administrative Appeals Tribunal.
The Australian Government should explore options for providing for effective merits and judicial review of adverse security assessments. These should include opportunities for applicants with adverse assessments to know the basis of their assessment and to make submissions on the content of that assessment, either directly or through an appropriate person such as a Special Advocate. [81]
(d) Indefinite detention of people who have received adverse security assessments
“We have been here for such a long time, for three years. Even a government is only in power for three years.”
“Even a murderer would know when his sentence is finishing, when he would get out. This is worse than a prison, this is hell.”
“I have passed the time without having any progress in my life. Who can replace lost life?”
“We feel like a dog on a leash and they're pulling us back.”
“We have heard that in this country, if you keen an animal in a cage for more than six months it is a crime. We have been in detention for nearly four years.”
“He cries and says, ‘When are you coming? When are you coming? I want to play with my dad.'”
“They give me clothes, a room to sleep in; I can see that the Australian Government does all this. I wish to repay this country for feeding me for the last 34 months, but I can't do anything from here.”
“Give us a conditional visa and observe our behaviour. We would then take the decision happily.”
“Give us an opportunity to show that we are not a security threat. We have been here for three years. This is a big country. It has a strong police force. Release us and let us go to the police every week. If we are shown to be a threat, then deport us. There is no threat on our part.”
As noted above, in order to be granted a permanent protection visa, refugees must meet Public Interest Criterion 4002 which provides that they have not been assessed by ASIO as being directly or indirectly a risk to security. As such, refugees who receive an adverse security assessment are not eligible to receive a protection visa allowing them to remain in Australia.
Further, there appears to be no prospect of refugees who have received adverse security assessments being placed in the community, through the use of bridging visas or community detention, while durable solutions for them are being pursued.
While the Minister for Immigration and Citizenship has the power to grant a visa to any person in immigration detention, [82] the current Australian Government position appears to be that refugees who have received adverse security assessments will not be placed in the community via the grant of a bridging visa.
Refugees with adverse security assessments appear not to be eligible for placement in community detention either. While the Residence Determination Guidelines issued in September 2009 by the former Minister for Immigration and Citizenship, Senator the Hon Chris Evans MP, allow refugees who have received adverse security assessments to be transferred from closed detention into community detention along with conditions to mitigate any potential risk, the Australian Government's current position is that people in this situation should not be granted a residence determination. The Commission understands that the Residence Determination Guidelines are currently being updated.
Some people who have been transferred into community detention while awaiting the outcome of their application for protection have subsequently received an adverse security assessment while living in the community. As a result of the Australian Government's policy, DIAC has been required to re-detain people in this situation in closed facilities. This is despite the fact that they may have already spent some time out of closed detention facilities living in the Australian community, without raising the concerns of any authorities.
Accordingly, refugees who have received adverse security assessments face the prospect of indefinite detention in closed facilities, in addition to the sometimes prolonged periods for which they have already been detained. This indefinite detention may amount to arbitrary detention in breach of the International Covenant on Civil and Political Rights. [83]
As noted above, in order to avoid arbitrary detention, there must be an individual assessment of whether it is necessary, reasonable and proportionate to hold a person in detention. Moreover, if it is decided that a person must be detained, this should be in the least restrictive manner and detention should not continue beyond the period for which it can be justified. [84] Currently, however, once a person has received an adverse security assessment recommending that they not be granted a permanent visa, there does not appear to be any further individualised assessment of whether that person is a risk to the Australian community and in particular whether they could be placed in less restrictive arrangements than closed detention. Rather, it seems to be assumed that because a person has received such an assessment, they necessarily pose a risk to the community which warrants continuing detention in closed facilities. This may not be the case. As the New Zealand Court of Appeal recognised in Choudry v Attorney General, it is ‘obvious that all risks to national security do not call for equal treatment. It is also apparent that different risks can be identified and distinguished.' [85]
Commission staff witnessed firsthand the devastating effects of indefinite detention on refugees with adverse security assessments during recent visits. Among the people in this situation with whom the Commission met were a family of five, including a baby who was born in detention in Australia; a woman in detention who was accompanied by her young son and whose husband has passed away; a pair of adult brothers, one of whom had extensive vulnerabilities; and a man whose wife and son had been granted protection visas and were reportedly struggling to cope with life in the community without him.
As noted above, many refugees with adverse security assessments had already spent prolonged periods in detention and could not see any prospect of being released or transferred into community arrangements. Others had been granted a residence determination and had experienced life in the broader Australian community, only to be re-detained in a closed facility upon receipt of their adverse security assessment. People spoke to the Commission of the acute distress they experienced as a result of their ongoing detention and expressed emotions ranging from acute anxiety to anger to despair. Many told Commission staff that their ability to eat, sleep or think clearly had been drastically compromised by their predicament. Thoughts of self-harm and suicide were common. Most people's distress was compounded by long periods of separation from their families, in some cases living in the Australian community, and in some cases remaining in their countries of origin or in situations of danger elsewhere.
(e) Lack of durable solutions
“They say there is a third country that will look after you, but the third country doesn't consider us; no one does.”
“If we have been accepted as a refugee here, what other country will take us? If Australia has called us a security risk, what other country will take us?”
“To say something, they say a third country is looking into your case. Sometimes they even say, ‘you can go home to your own country'. It's just talk. There is no action in regards to this.”
“They tell us, ‘why don't you go back to your home?' This is the same as telling us, ‘why don't you commit suicide?'”
There do not appear to be any durable solutions currently available for refugees who have received adverse security assessments.
Last year DIAC advised the Commission that the government was actively exploring durable solutions for individuals with adverse security assessments that are consistent with Australia's international obligations, including its non-refoulement obligations. It further noted that these ‘may include resettlement in a third country or safe return to [a person's] country of origin where country circumstances allow, where the risk of relevant harm occurring no longer exists or where reliable and effective assurances can be received from the home country'. [86] The Commission has since been advised by DIAC that the return of a refugee to their country of origin on the basis of diplomatic assurances is a theoretical option that could be explored but is not being pursued at this stage. [87] Were it to be pursued, the Commission would hold serious concerns that relying on diplomatic assurances in returning a refugee to their country of origin could breach Australia's non-refoulement obligations. [88] Further, nothing presently indicates that third country resettlement is realistic.
The apparent lack of workable long-term solutions to the situation of refugees with adverse security assessments was a source of immense distress for people with whom the Commission met. Many expressed disbelief that durable solutions to their situation were in fact being pursued. Others could not see viability in any of the prospective solutions proposed. This led to an inability to conceive of any future apart from continuing detention in an immigration facility. People with whom the Commission spoke appeared to struggle to maintain any hope in relation to their circumstances and to give meaning to their days in this context.
(f) High Court challenge: Plaintiff M47/2012 v Director General of Security
On 18, 19 and 21 June 2012, a refugee who received an adverse security assessment brought a challenge in the High Court of Australia against the Director General of Security, the Minister for Immigration and Citizenship and the Commonwealth of Australia, amongst others. The plaintiff in this matter challenged the processes by which ASIO conducted the security assessment which led to his receiving an adverse security assessment signed by the Director General of Security. The plaintiff also challenged his continuing detention in a closed facility.
With regard to the procedural issues, the plaintiff argued that in furnishing an adverse security assessment, ASIO failed to comply with the requirements of procedural fairness. The defendants argued that ASIO had complied with the requirements of procedural fairness by conducting an interview with the plaintiff and providing him the opportunity to advance relevant evidence.
With respect to detention, the plaintiff argued that his continuing and potentially indefinite detention is unlawful, because he is not being detained for any purpose authorised by the Migration Act. [89]
The High Court has previously held, in Al-Kateb v Godwin, that the Migration Act authorises and requires the detention of ‘unlawful non-citizens' even if their removal from Australia was not reasonably practicable in the foreseeable future. [90] The plaintiff sought to distinguish his situation from the finding in this case, as he has been recognised as a refugee, while Mr Al-Kateb was found to be stateless and considered not to be owed Australia's protection. In the alternative, the plaintiff argued that Al-Kateb v Godwin was wrongly decided and should be overturned.
The defendants submitted that the plaintiff's detention is authorised and required by ss 189 and 196 of the Migration Act.
At the time of writing, the High Court's judgment in Plaintiff M47/2012 v Director General of Security was reserved. [91] The decision in this matter may have significant consequences for refugees with adverse security assessments who remain in detention.
6.3 Refugees of interest to or who have been charged by the Australian Federal Police
A further group of people in closed detention about whom the Commission holds particular concerns are refugees who are of interest to or have been charged by the AFP in relation to detention centre disturbances in early 2011. People in this situation face prolonged periods of detention with little hope of transfer into community arrangements. If convicted, they have reduced prospects of receiving a permanent protection visa.
(a) Australian Federal Police and Parliamentary response to detention centre disturbances
As noted in section 4.2, Christmas Island and Villawood IDCs became scenes of violent protests during March and April 2011 respectively. These protests occurred at a time of significant overcrowding, protracted periods of detention and associated unrest across the detention network.
The protests on Christmas Island and at Villawood involved extensive damage to property as well as injuries to detainees, detention centre staff and authorities attending the scenes. [92] They were followed by criminal investigations during which a number of people became ‘persons of interest' to the AFP, some of whom have subsequently been charged or convicted. At the time of writing, 61 people in closed detention remained ‘of interest' to the AFP, over a year after commencement of criminal investigations.
In July 2011, the Australian Parliament passed amendments to the Migration Act to ‘toughen the penalties for criminal behaviour in immigration detention'. [93] Under the amendments, a person who is convicted of any offence committed while in immigration detention will automatically fail the character test applied prior to the grant or cancellation of a visa. [94] A consequence of this amendment is that refugees who fall within this category may not be granted a permanent protection visa. [95]
(b) The situation of refugees who are of interest to or have been charged by the Australian Federal Police
“When I was in detention centres for 18 months I said, ‘I will be patient'. But every human being has limits. We have been here for 39 months now. And we are tired – mentally very tired. They made me crazy. And that is why I have done this. They told me to come down from the roof, that they would help me, send me to a psychologist. But they put me in jail for seven months.”
“I had no future, I had no hope. I went on top of the roof. I was going to jump. I felt like ending my life. But a few days later I got a positive decision. And now, my life has changed again.”
“I don't really understand the charge against me. I know it relates to when the centre was burned down. When that happened I had just been told I was a refugee. I was on my way out – and my journey was over. But that has changed completely now. After I was in prison, the judge said that I would be going into the community, but they just brought me straight back here instead. I feel like a soccer ball. I am a refugee, but my case manager says that my security assessment has been stopped now – because I have been charged. And they also tell us that we may never get a permanent visa.”
During its recent visits to closed detention facilities the Commission met with seven refugees who were of interest to or had been charged by the AFP in association with the detention centre disturbances in early 2011. Most had received a security clearance, and those who had not were awaiting completion of their security assessment. At least one person with whom the Commission spoke had been found to be a refugee prior to the disturbances and remained in detention at that time pending completion of security and other checks. Some of the people in this group advised the Commission that they had been detained for over three years and all appeared to have been detained for over two years.
All of the refugees with whom the Commission met who were of interest to or had been charged by the AFP expressed intense feelings of frustration, despair and helplessness in relation to their circumstances. Many expressed anxiety about whether they would ever be released from immigration detention and some expressed fear that their mental and physical health were deteriorating rapidly.
Many ‘persons of interest' told the Commission that they believed that there was no active investigation underway in relation to allegations made against them. Some people who had been charged told the Commission that they felt that they were being punished for personal protest actions which were motivated by their desperation at the length of their detention and which had not resulted in damage to property or harm to other people. Others who had been charged keenly felt that it was paradoxical that they remained indefinitely detained as a result of behaviours which they had exhibited only in response to the unbearable frustrations associated with being detained for a prolonged period in the first place. One man expressed confusion and exasperation at having been returned to immigration detention from a correctional facility after he was charged, as he had understood from court proceedings that he was to be bailed into the community.
(c) Impact of changes to the character provisions under the Migration Act
Under 2011 amendments to the Migration Act, a person who is convicted of an offence committed while in immigration detention will automatically fail the character test that is conducted before a person is granted a visa. A person who fails the character test cannot be guaranteed a visa, even if Australia has recognised that person as a refugee – the Minister for Immigration and Citizenship, or his delegate, may decide not to grant a visa to a person in these circumstances. [96] The Commission understands that consideration has been given to granting temporary visas, including Removal Pending Bridging Visas, instead of permanent protection visas, to refugees who fail the character test because they have been convicted of offences committed while in immigration detention.
The practical effect of a decision not to grant a recognised refugee a permanent protection visa on the basis that they were convicted of an offence committed in detention, or to grant a refugee in this situation a temporary rather than a permanent visa, appears to be to further punish a person over and above any penalty which may be imposed by the courts. It is not appropriate for penalties for criminal conduct to be imposed through the administration of migration law and policy. [97]
People in detention who were of interest to or had been charged by the AFP expressed significant apprehension to the Commission as to the impact that their involvement in police matters may have on their prospects of being granted protection in Australia. Many people in this situation expressed great anxiety that they may not receive a permanent protection visa if ultimately convicted of the offence for which they had been charged.
Concerns have also been raised with the Commission by a number of parties regarding the potentially grave consequences of the amendments to the character test provisions of the Migration Act on refugees, some of whom have been convicted of very minor offences and many of whom are reportedly highly vulnerable following prolonged periods of immigration detention. [98]
The Commission believes that the Minister and his delegates should adopt a humanitarian approach when considering applications for protection visas from refugees in these circumstances.
(d) Prolonged detention of refugees who are of interest to or have been charged by the Australian Federal Police
Further to concerns regarding the lengthy timeframes for AFP investigations and the potential curtailment of durable solutions for refugees who have been convicted of minor offences, the Commission is troubled by the prolonged detention in closed facilities of refugees who have been charged by or remain of interest to the AFP. As noted, all the refugees within these categories with whom the Commission met appeared to have been detained for at least two years and some had been detained for up to a year following their recognition as refugees.
The Commission understands that the Minister for Immigration and Citizenship has indicated to DIAC that he is not inclined to consider the exercise of his discretionary powers to grant a bridging visa or community detention to any person who has been charged with offences alleged to have been committed whilst in immigration detention. The Commission also understands that, while open to receiving submissions relating to community placement options for people who remain of interest to the AFP, the Minister has indicated that he will not necessarily consider exercising his discretionary powers in these instances. [99]
The Commission is greatly concerned that recognised refugees, many of whom have received a security clearance, are being detained for protracted periods without foreseeable prospect of release. As reiterated throughout this report, a person should only be held in an immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community and that risk cannot be met in a less restrictive way. Otherwise, they should be permitted to reside in the community while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks. These standards should be applied to all people in detention, irrespective of any alleged or established participation in detention centre disturbances.
The Commission understands that status resolution processes – that is, the processing of claims for protection and the conduct of security assessments for those found to be owed protection – are automatically suspended if a person is charged. [100] The Commission is concerned that, in the current circumstances, this approach may contribute to considerably lengthened periods of immigration detention for recognised refugees who have already been subject to protracted detention. One man who had been found to be a refugee a year earlier told Commission staff of his significant distress at having been advised that the processing of his security assessment had been suspended in light of his charge.
6.4 Stateless persons
“I have had three written decisions now. In all of them they say that I am stateless. So I do not understand. What happens now? Why am I here? I have nowhere to go. Do I have a future? No one can give me answers.”
“I am wondering why they are keeping me here for a long, long time, even though I am innocent. I asked for another lawyer, but since I have been rejected I have been told that there are no other options for me. This was more than half a year ago. I ask ‘why haven't you helped me in all that time?' – but they don't answer my question.”
“I have no country. It is very terrible. I am completely unhappy. I have two options: survive, look after my health, be patient; my other option is to die.”
“I wanted a country that acknowledges me. I found the opposite.”
“Every time I look at the gates and wires around me now I have to close my eyes. It is just too painful for me now to see these things. Mainly now, I sleep. Before I started taking pills, I could not sleep at all – I would just walk around the compound at night. There were always other people out there too – just ghosts, like me.”
“In the detention centre I've become cold about living. I have lost the will to live.”
“When they throw the dice and it says, ‘let him out', they will let me out.”
“I'm a wilted plant now. I've lost my hope. I think they need to let me out. I'm not brave like others to take my life, but I think that I am just dying here now anyway. People speak to me, and often they are kind, but I can no longer concentrate on what they are saying.”
“The person is just lingering – it almost feels like storage.” (Member of staff speaking of stateless people in detention)
The Commission has long held concerns about the protracted immigration detention of, and lack of substantive visa pathways available to, people who appear to be stateless and have been found not to be refugees. As at 15 May 2012, there were 555 people in closed detention in Australia who identified as being stateless, 114 of whom had been detained for over 540 days. [101]
Australia has obligations in respect of stateless persons as a party to the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness. In the view of the Commission, Australia would better meet these obligations if it were to develop a formal, comprehensive procedure for determining statelessness. [102] The Commission also submits that an administrative mechanism should be made available for stateless persons to seek a permanent remedy for their statelessness in Australia.
Guidelines for Assessing Claims of Statelessness have recently been made available to DIAC decision-makers for the purpose of assessing whether a person meets the requirements for the grant of a protection visa. [103] However these Guidelines do not comprise a statelessness determination mechanism, nor do they provide for the grant of a visa in response to an assessment that a person is stateless.
While statelessness in itself is not a ground for claiming refugee status, it may be a relevant consideration in a person's refugee claim. While some stateless persons are found to be refugees, or to be otherwise owed protection, others are not.
As Australia does not grant protection visas to people on the basis of statelessness alone, a person may be assessed as likely to be stateless (and therefore unlikely to be able to be removed), and yet left without resolution of their situation. Under Australia's current arrangements, the only prospect of a lasting resolution for people in this situation is through the exercise of non-compellable discretionary Ministerial power to grant a person a visa, or locating a third country that is willing to accept the person as a lawful permanent resident. Pursuit of third country residency options has historically left people who are stateless in situations of protracted immigration detention.
Many of the stateless people with whom the Commission met during its recent detention visits expressed bewilderment and despair at the fact that they had received records of decisions, including primary decisions, review decisions and in some instances judicial review decisions, which accepted their claims of statelessness, yet left them without any associated visa outcome. Many of these people had been detained for extensive periods of time and also reported high levels of hopelessness, thoughts of self-harm and anxiety regarding their deteriorating mental health.
The Commission understands that several of the apparently highly vulnerable stateless people with whom it met have since been approved for community placements, or transferred into less restrictive forms of closed detention.
The Commission further understands that the Minister for Immigration and Citizenship has recently clarified to DIAC that he is open to receiving submissions recommending bridging visa grants or community detention placement for people who are stateless who have been found not to be owed protection. In light of the significant number of people in this situation, and the length of detention of many, the Commission urges that such submissions be swiftly referred and considered. Along with other people currently subject to closed immigration detention, people who are stateless ought to be placed in the community at the earliest opportunity, unless they are considered to pose an unacceptable risk. If a person is assessed as posing such a risk, consideration should be given to placing them in a less restrictive form of immigration detention.
In addition to pursuing community placement options for stateless persons, the Commission recommends that the Australian Government take measures to ensure the lasting resolution of their situation. These should include the development of a formal statelessness determination mechanism which incorporates recognition of de jure as well as de facto statelessness. The term de facto statelessness describes persons who formally possess a nationality, but whose nationality is not ‘effective'. The Final Act of the Convention on the Reduction of Statelessness recommends that ‘persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality'. [104] Measures to resolve the situation of stateless persons should also include the establishment of administrative pathways for the grant of substantive visas to stateless persons who have been found not to be refugees or otherwise owed protection.
[73] The Commission has raised concerns about security assessment processes and outcomes in numerous reports and public statements including 2010 Immigration detention on Christmas Island, note 63, section Australian Human Rights Commission, 2010 Immigration detention in Darwin (2010), section 5, at http://www.humanrights.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 10 July 2012); 2011 Immigration detention at Villawood, note 24, section 8. 2011 Immigration detention at Curtin, note 24, section 5.1. The Commission has also made submissions on security assessment processes and outcomes to Parliamentary reviews and inquiries, including to the 2011 Independent Review of the Intelligence Community (at http://www.humanrights.gov.au/legal/submissions/2011/20110431_intelligence.html , viewed 24 July 2012) and the 2011 Joint Select Committee Inquiry into Australia's Immigration Detention Network (at http://www.humanrights.gov.au/legal/submissions/2011/201108_immigration.html , viewed 24 July 2012). Further, Commission President the Hon Catherine Branson QC wrote to the Attorney-General on 23 September 2010, 12 October 2011, 1 March 2012 and 15 May 2012, and the Minister for Immigration and Citizenship on 23 September 2010, 26 August 2011 and 15 May 2012, about the Commission's concerns in relation to ASIO security assessment processes and outcomes. [74] For example, in March 2011, ASIO introduced a security referral framework for asylum seekers who arrive in Australia by boat, designed to streamline the security checking process for people in this situation and allow ASIO to focus on complex cases while finalising non-complex cases relatively quickly. According to ASIO, this new ‘triage method' allows for more efficient conduct of security assessments: see Australian Security Intelligence Organisation, ASIO Report to Parliament 2010-11 (2011), pp VII-VIII and 25-26, at https://www.asio.gov.au/ (viewed 10 July 2012). For further information on and an analysis of the new triage approach, see Australian National Audit Office, Security Assessments of Individuals (Report no. 49, 2012), at https://www.anao.gov.au/ (viewed 25 July 2012). [75] See ASIO Report to Parliament 2010-11 (2011), above, p 25. [76] Written communication from Australian Security Intelligence Organisation to Australian Human Rights Commission, 23 July 2012. [77] Australian Security Intelligence Organisation Act 1979 (Cth), s 37(1). The notice and the copy of the assessment are not to be provided to the person if the Attorney-General certifies that withholding the notice ‘is essential to the security of the nation' or that withholding some or all the statement of grounds contained in the assessment ‘would be prejudicial to the interests of security': Australian Security Intelligence Organisation Act 1979 (Cth), s 37. [78] Australian Security Intelligence Organisation Act 1979 (Cth), s 36. [79] Australian Security Intelligence Organisation Act 1979 (Cth), s 36. [80] Church of Scientology Inc v Woodward (1982) 154 CLR 25. [81] For further information on security assessments processes, and procedural safeguards which should be introduced to improve them, see Australian Human Rights Commission, Submission to the Independent Review of the Intelligence Community, note 73. [82] Under s 195A of the Migration Act 1958 (Cth), the Minister for Immigration and Citizenship has the power to grant a visa to any person in immigration detention. This is because, by operation of s 195A(3), the requirement under s 65 that the Minister be satisfied of certain criteria before granting a visa – including that a person who has undergone an ASIO security assessment must not be assessed as being a risk to security – does not apply. [83] See International Covenant on Civil and Political Rights, note 19, art 9(1); see also Convention on the Rights of the Child, note 19, art 37(b). See further note below. [84] See note 22. [85] Choudry v Attorney General [1999] 2 NZLR 582. [86] Department of Immigration and Citizenship, response to Australian Human Rights Commission, 2011 Immigration detention at Villawood (2011), recommendation 5, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood_response.html (viewed 10 July 2012). [87] Written communication from Department of Immigration and Citizenship to Australian Human Rights Commission, 24 July 2012. [88] Australia is prohibited under article 33(1) of the Convention Relating to the Status of Refugees and its 1967 Protocol from expelling or returning refugees to territories where their lives or freedom would be threatened on the basis of their race, religion, nationality, membership of a particular social group or political opinion. However, this prohibition does not apply to refugees whom there are reasonable grounds for regarding as a danger to the security of Australia, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the Australian community: see article 33(2). Australia has further and broader non-refoulement obligations under the International Covenant on Civil and Political Rights, Convention on the Rights of the Child and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prevent the removal of anyone from Australia to a country where they are in danger of torture or cruel, inhuman or degrading treatment or punishment. See Convention Relating to the Status of Refugees (1954), art 33(1) and Protocol Relating to the Status of Refugees (1967), both at http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (viewed 10 July 2012); International Covenant on Civil and Political Rights, note 19, arts 6 and Convention on the Rights of the Child, note 19, arts 6 and % Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), at https://humanrights.gov.au/our-work/commission-general/broken-link (viewed 10 July 2012). For further analysis of the operation of these articles as non-refoulement provisions, see United Nations Human Rights Committee, GT v Australia, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996, at http://www.unhcr.org/refworld/country,,HRC,,AUS,,4ae9acbfd,0.html ; United Nations Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999, at http://www.unhcr.org/refworld/docid/3f588ef00.html ; United Nations Human Rights Committee, Kindler v Canada, Communication No 470/1991, UN Doc CCPR/C/48/D/470/1991, at http://www.unhcr.org/refworld/publisher,CAN_SC,,USA,3ae6b6ed0,0.html ; United Nations Human Rights Committee, Ng v Canada, Communication No 469/1991, UN Doc CCPR/C/49/D/469/1991, at http://www.unhcr.org/refworld/country,,HRC,,HKG,,4028b5002b,0.html ; United Nations Human Rights Committee, Cox v Canada, Communication No 539/1993, UN Doc CCPR/C/52/D/539/1993, at http://www.unhcr.org/refworld/publisher,HRC,,USA,4028ba144,0.html ; United Nations Committee on the Rights of the Child, General Comment No 6: Treatment of unaccompanied and separated children outside their country of origin, UN Doc CRC/GC/2006/6, at http://www.unhcr.org/refworld/docid/42dd174b4.html (all viewed 10 July 2012). [89] Section 196 of the Migration Act provides that an unlawful non-citizen is to be detained until he or she is:
- removed from Australia under section 198 or Ç or
- deported under section È or
- granted a visa.
http://www.austlii.edu.au/au/other/HCATrans/2012/145.html [90] Al-Kateb v Godwin (2004) 219 CLR 562. [91] Transcripts of the proceedings in Plaintiff M47/2012 v Director General of Security can be found at http://www.austlii.edu.au/au/other/HCATrans/2012/144.html http://www.austlii.edu.au/au/other/HCATrans/2012/145.html http://www.austlii.edu.au/au/other/HCATrans/2012/149.html (all viewed 9 July 2012). [92] For a full account of the protests see Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre, note 26. [93] Minister for Immigration and Citizenship, ‘Character test changes passed by parliament' (Media Release, 5 July 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb167979.htm (viewed 23 July 2012 [94] Migration Act 1958 (Cth), s 501(6)(aa). [95] In announcing the changes Minister for Immigration and Citizenship, the Hon Chris Bowen MP, stated: ‘Anyone considering engaging in destructive and criminal behaviour in detention must now face the reality that such action will significantly increase their chances of not being granted a permanent visa'. ‘Character test changes passed by parliament', note 93. [96] See Migration Act 1958 (Cth), s 501. [97] For further analysis of the potential impact of the amendments to the character provisions of the Migration Act 1958 (Cth), see Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Committees' Inquiry into the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 (31 May 2011), at http://www.humanrights.gov.au/legal/submissions/2011/20110531_migration.html (viewed 10 July 2012). [98] Concerns raised with the Commission include cases of refugees having been convicted for the theft (and subsequent return) of small food items from detention centre kitchens, without signs of forced entry. [99] Advice provided to the Australian Human Rights Commission by Department of Immigration and Citizenship, 2 July 2012. [100] Advice provided to the Australian Human Rights Commission by Department of Immigration and Citizenship, 3 July 2012. [101] Commonwealth, Official Committee Hansard: Senate Legal and Constitutional Affairs Legislation Committee – Estimates (21 May 2012), p 68 (John Moorhouse, Deputy Secretary, Immigration Detention Services Group, Department of Immigration and Citizenship), at http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/b429b5c1-1858-47f9-ab41-542ef70c9e51/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2012_05_21_1050.pdf (viewed 10 July 2012). [102] Convention relating to the Status of Stateless Persons (1954), at https://humanrights.gov.au/our-work/commission-general/broken-link (viewed 8 June 2012); Convention on the Reduction of Statelessness (1961), at https://humanrights.gov.au/our-work/commission-general/broken-link (viewed 8 June 2012). [103] Department of Immigration and Citizenship, protection visa Procedures Advice Manual: Annex: Guidelines – Assessing Claims of Statelessness. Available through LEGENDcom, the Department's electronic database of migration and citizenship legislation and policy documents which is available to members of the public on a subscription basis – see http://www.immi.gov.au/business-services/legend/ (viewed 10 July 2012). [104] Convention on the Reduction of Statelessness (with Final Act of the United Nations Conference on the Elimination or Reduction of Future Statelessness held at Geneva from 24 March to 18 April 1959, and Resolutions I, II, III and IV of the Conference) (1961), Resolution 1, at http://treaties.un.org/doc/Publication/UNTS/Volume%20989/volume-989-I-14458-English.pdf (viewed 8 June 2012).