2008 Face the Facts - Chapter 3

Face the Facts (2008)

Questions and Answers about Asylum Seekers and
Refugees

3.1 Asylum seekers
3.2 Refugees
3.3 What is Australia’s policy on refugees?
3.4 How many refugees come to Australia?
3.5 Where do refugees come from?
3.6 What happens to asylum seekers in Australia?
3.7 Why are refugees allowed to stay in Australia?
3.8 What settlement services does Australia provide to refugees?
3.9 Past policies in Australia
3.10 What is immigration detention?
Further reading

Download

Complete publication PDF [1.2 MB]
Compete publication Word [1 MB]

3.1 Asylum seekers

The terms asylum seeker and refugee are often confused. An asylum seeker is
someone who says that he or she is a refugee but whose claim has not yet been
assessed. A refugee is someone who has been assessed by a national government or
an international agency (such as the Office of the High Commissioner for
Refugees (UNHCR)) and meets the criteria set out under the Convention
relating to the Status of Refugees 1951 (Refugee Convention).

Who are asylum seekers?

An asylum seeker is someone who has fled
their own country and applies to the government of another country for
protection as a refugee. As a signatory to the Refugee Convention, Australia
must comply with its obligations and ensure that all those who make claims for
protection while in Australia have their claims assessed in accordance with the
Refugee Convention. A person is a refugee the moment he or she fulfils the
criteria of this Convention. When Australia grants a refugee visa it does
not establish but rather confirms their refugee status under international
law.^[119]

How many asylum seekers are there worldwide?

At the end of 2007 there were an estimated 740 000 individuals worldwide
waiting on a decision regarding their asylum
claim.^[120]

Many asylum seekers make refugee applications in neighbouring countries,
while some apply in countries further afield. As mainland Australia shares no
land border with any other country and is far from most major conflicts,
relatively few people seek asylum here compared to the United States and Europe.
For example, in 2007 about 6303
people^[121] sought asylum in
Australia.^[122] This compares with
50 700 applications in the United States, 45 600 in South Africa and 36 400 in
Sweden.^[123] In terms of the
number of refugee visas granted, Ethiopia recognised the largest number of their
asylum applicants as refugees (19 896), followed by the United States with 17
979, Malaysia with 14 156 and France with 12
928.^[124]

top | contents

3.2 Refugees

Who is a refugee?

The Refugee Convention and its 1967 Protocol are
the bases of modern refugee protection. The Refugee Convention defines who is
and who is not a refugee and sets out the basic rights which states should
guarantee to refugees. Australia is one of 146 signatories to the Refugee
Convention. According to the Convention, a refugee is someone who is outside
their own country and cannot return due to a well-founded fear of persecution
because of their:

race
religion
nationality
membership of a particular social group

political opinion.^[125]

A person becomes a refugee under international law once he or she
crosses an international border and is assessed as meeting the definition of a
refugee, either by a national government or an international agency such as the
UNHCR.^[126]

In popular use, the term refugee is often interpreted more broadly than its
legal definition, to include all people who flee their homes seeking refuge from
harm. There are many circumstances which could force someone to flee to safety,
including war or civil strife, domestic violence, poverty and natural or
man-made disasters. However, the Refugee Convention only recognises
people as refugees if they are displaced from their home country because of
persecution (or a well founded fear of persecution) on the basis of their race,
religion, nationality and their membership of a particular social group or
political opinion.

How many refugees are there worldwide?

At the end of 2007, there
were roughly 11.4 million refugees around the world that were under the
responsibility of the UNHCR.^[127] This is the largest number of refugees seen in the past six years and continues
the upward trend started in
2006.^[128]

At the end of 2007, the Asia Pacific Region had 27.6% of the 11.4 million
refugees under the mandate of UNHCR. The Middle East and North Africa region had
27.4%; the rest of Africa had 23.5%, followed by Europe 16.3% and the Americas
5.2%.^[129]

In 2007, Pakistan hosted the largest number of refugees and people in
refugee-like situations with over 2 million residing in that country, followed
by Syria (over 1.8 million) Iran (approximately 964
000).^[130] In 2007 the largest
country of origin for refugees was Afghanistan (3.1 million), with Iraq as the
next largest (2.3 million), followed by Colombia, Sudan, Somalia and then
Burundi.^[131]

Complete data of the age and gender makeup of the refugee population is not
available. The data available showed that roughly half of the population of
concern were female.^[132] About
44% of the population of concern, for which data is available, were children
under the age of 18 and about 10% were under the
age of five.^[133]

What are the responsibilities of the UNHCR?

The UNHCR was created by the United Nations General Assembly in 1950 and
became operational in 1951. Its original (three year) mandate was to protect the
interests of the remaining World War II refugees in the countries where they had
sought asylum. However, the problem of displacement did not disappear after
World War II and, in fact, became a persistent worldwide phenomenon.

The UNHCR leads and co-ordinates international action to protect refugees
worldwide. Its primary purpose is to safeguard the rights and well-being of
refugees. It aims to ensure that everyone can exercise the right to seek asylum
and find safe refuge in another State, with the option to return home
voluntarily (where possible), integrate locally in a host community or to
resettle in a third country.

One of the key principles set out under the Refugee Convention is that
refugees should not be returned to places where their lives or their freedom
would be threatened. The UNHCR identify their preferred durable solutions for
refugees as:

the voluntary return to their country of origin in conditions of safety and
dignity
the local integration into a country of asylum if a safe return to the
country of origin is not possible
resettlement into a third country if neither of the first two options are
suitable or possible.

For over 50 years, the agency has provided
assistance to an estimated 50 million people. Today, the UNHCR operates in more
than 110 countries and continues to help 32.9 million persons.

Who are environmental refugees?

People displaced due to
environmental factors, including climate change, do not fit the international
legal definition of ‘refugee’, which requires individuals already
outside their country of origin to show that they have a well-founded fear of
being persecuted (because of their race, religion, nationality political opinion
or membership of a particular social
group).^[134]

Environmental refugees are classified as people who cannot sustain their
livelihood and have to leave their ‘traditional habitats’ due to
drought, soil erosion, desertification, deforestation, depletion of natural
resources, climate change and other environmental problems. This also includes
associated problems of population pressures and profound
poverty.^[135] Environmental
refugees can include people who are internally displaced and therefore do not
necessarily leave their country.

How do refugees differ from migrants?

Refugees are not in the same
situation as migrants, although the definitions of the two groups are often
confused. Migrants choose when to leave their country, where they go and
when they return. Refugees flee their country for their own safety and
cannot return unless the situation that forced them to leave improves. Migrants,
however, may still be a vulnerable group who face many challenges while
travelling to, and settling in, a new country. Refugees and migrants are
fundamentally different and are treated differently under international law.

top | contents

3.3 What is Australia’s policy on refugees?

Under its Humanitarian Program, Australia accepts a number of people from
various regions. Each year the federal government sets a quota of places for
people to come to Australia.

Through this program the Department of Immigration and Citizenship (DIAC)
aims to:

assist people in humanitarian need overseas for whom resettlement in another
country is the only available option
comply with Australia’s international obligations onshore under the
Refugee Convention.

This program has two main parts: off-shore resettlement and
on-shore protection.

Off-shore resettlement

The off-shore resettlement program is for
refugees and other ‘humanitarian entrants’ who apply for a visa from
outside Australia. There are two kinds of visas which can be granted under the
off-shore resettlement program:

Refugee Visas: for people outside their home country who satisfy the
Refugee Convention definition of 'refugee' and who are in need of resettlement
because they cannot return to their own country or stay where they
are.^[136]
Special Humanitarian Program Visas: for people outside their home
country who have experienced substantial discrimination amounting to a gross
violation of human rights in their home country. A proposer, who is an
Australian citizen, permanent resident, or eligible New Zealand citizen, or an
organisation that is based in Australia, must support such an application for
entry.^[137]

Did you know?

A person can apply to Australia for a humanitarian
visa while they are in another country or while they are in Australia.

On-shore protection

People can seek to be recognised as refugees
once they are already in Australia by applying for a ‘Protection
Visa’ (PV). To be granted a Protection Visa, asylum seekers must satisfy
the Refugee Convention definition of
‘refugee’.^[138]

Australia is only obliged to protect refugees if:

the applicant has a well founded fear of persecution on grounds covered by
the Convention
the applicant has not committed war crimes or serious non-political
crimes
the applicant does not have effective protection in another country (eg.
through citizenship or some other right to enter and remain safe in that
country).^[139]

Permanent Protection Visas (PPV): This visa is for people
who arrive in Australia and are found to be refugees that Australia is obliged
to protect. If granted, the Permanent Protection Visa allows the applicant to
become a permanent resident of Australia and gives them the same rights as other
permanent residents, including being able to apply for Australian Citizenship.
Applicants who do not have a valid visa may receive a bridging visa upon lodging
a PPV application which allows the applicant to remain lawfully in the community
until the PPV application is finalised. Some bridging visas allow the applicant
to work in Australia, while others do not have work rights
attached.^[140] Some PPV applicants
are also eligible for financial assistance for basic food, accommodation and
health care while their applications are being
processed.^[141]

top | contents

3.4 How many refugees come to Australia?

Each year, the Australian
Government makes a number of places available for use under the Humanitarian
Program, including both off-shore and on-shore visas. The system is fairly
flexible as places that are not used in the previous year can be carried forward
and, if there is need, places in the following year can be used in the current
year.^[142] Up until 2004-05 the
quota was set at around 12 000 visas per annum. This was increased to 13 000 in
the 2004-05 program year and this higher quota has been maintained for the
2005-06, 2006-07 and 2007-08 program years.

The 2008-09 Humanitarian Program was increased to 13 500, with the additional
500 places set aside for Iraqi refugees in recognition of their critical
resettlement needs.

In 2007-08 a total of 13 014 visas were granted under the Humanitarian
Program.^[143] In 2008-09, offshore visas of the Humanitarian Program are planned to be evenly
split between three regional areas: Africa, Middle East and Asia will receive
33% each with 1% as
contingency.^[144]

Table 3.1 Humanitarian Program, visa grants by
category, 2003-04 to 2007-08

Category	2003-04	2004-05	2005-06	2006-07	2007-08
Refugee	4134	5511	6022	6003	6004
Special Humanitarian	8927^	6755⁺	6836	5275	5026
Onshore Protection	788	895	1272	1701	1900
Temporary Humanitarian Concern	2	17	14	38	84
Total	13 851	13 178	14 144	13 017	13 014

^ This figure includes 1228 grants to the East Timorese
on-shore.⁺ This figure includes 148 grants to East Timorese and
22 others on-shore.

Source: Department of Immigration and Citizenship, Australia’s Refugee and Humanitarian Programme, Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

top | contents

3.5 Where do refugees come from?

In 2007-08, a total of 13 014
people were granted visas under the Humanitarian Program, including 10 799
off-shore and 2215 on-shore
applicants.^[145] The off-shore visas granted in 2007-08 were mainly targeted at three
geographical areas: Middle East and South West Asia (35.4%), including Iraq and
Afghanistan; Asia (33.7%), including Burma/Myanmar and Sri Lanka; and Africa
(30.5%), including Sudan, Liberia and the Democratic Republic of the
Congo.^[146]

Table 3.2 Off-shore Resettlement Program, visas grants by region 1999-2000
to 2007-08

Region	1999-2000	2000-01	2001-02	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Middle East & SW Asia	2208	2155	2743	4701*	2867^{^}	3174	4335	3126	3807
Africa	1736	2032	2801	5616	8353	8486	7100	5695	3291
Asia	113	316	189	181^#	221	415	1260	2315	3636
Europe	3424	3462	2709	1158	354	20	55	50	59
Americas	21	27	16	0	7	1	8	0	6
Total	7502	7992	8458	11 656	11 802	12 096	12 758	11 186	10 799

* Includes 311 grants to mainly Afghan and Iraqis in the Offshore Processing
Centres in Papua New Guinea and Nauru.
^# Includes 26 grants to out
of region cases.^{^} Includes 90 grants to mainly Afghanis and
Iraqis in the Offshore Processing Centres in Papua New Guinea and Nauru.

Source: Department of Immigration and Citizenship, Australia’s Refugee and Humanitarian Programme, Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008)

top | contents

3.6 What happens to asylum seekers in Australia?

Asylum seekers in
Australia are treated differently according to whether they entered Australia as
'authorised' or 'unauthorised' arrivals.

'Authorised' arrivals enter Australia with a valid visa (such as a
tourist or student visa). Authorised arrivals can apply for a Permanent
Protection Visa (PPV). An applicant for a PPV who meets the relevant eligibility
requirements will be granted a bridging visa while their protection claims are
being assessed. Whether they are granted permission to work depends on their
immigration status at the time of making their PPV application as well as the
operation of other criteria. Some PPV applicants are also eligible to receive
financial help from the Government if they cannot meet their basic needs for
food, accommodation and health care. Authorised arrivals who are not found to be
refugees according to Australian migration law may be detained until they are
removed from the country.

'Unauthorised' arrivals enter Australia without a valid visa, by boat
or by air. In July 2008 the federal government announced that Australia will
only detain unauthorised arrivals for identity, health and security checks. Once
they have passed these checks, they may be issued with a bridging visa so that
they can live in the community while their refugee applications are being
decided. Unauthorised arrivals who are found not to be refugees under Australian
migration law may be removed from the country.

Who decides refugee applications in Australia?

Once in Australia,
an asylum seeker applies for refugee status to DIAC. When an application is made
an officer from DIAC, acting as a delegate of the Minister for Immigration and
Citizenship, decides if the applicant engages Australia's obligations under the
Refugee Convention. This is done by assessing individual claims against the
definition of a refugee set out in the Refugee Convention and domestic
legislation. A decision on all initial refugee applications should be made
within three months^[147] of the
application being lodged.^[148] The
applicant must also meet certain health and character requirements in order to
be granted a visa.^[149] If the
application is successful, the applicant is granted a Permanent Protection Visa.

If an application by a person in Australia is refused, that person can seek a
review of the decision from an independent tribunal. They can either apply to
the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT)
depending on the basis for
refusal^[150]. These appeals must
also be processed within three months of them being
lodged.^[151]

Did you know?

A decision should be made within three months on all initial
refugee applications made by asylum seekers being held in immigration detention
in Australia.

The AAT provides independent merits review of:

a visa refusal decision based on section 501 character grounds, or
a protection visa refusal decision based on Article 1F or Article 33(2) of
the Refugee Convention (see section 3.7).

The AAT hearing is based on an adversarial framework similar to
that of a court proceeding where each party is able to present his or her
case.

The RRT is an independent body established under the Migration Act 1958
(Cth) to review protection visa applications. The RRT considers individual
circumstances and claims in each case, and make a fresh objective assessment of
the merits of the case. The RRT will take into account any new developments or
claims which may have emerged since the case was last examined. The tribunal
hearing, unlike a court or the AAT, is informal and non-adversarial.

Applicants rejected by the RRT (and who have no other legal
reason to be in Australia) have 28 days to depart Australia. If they stay beyond
this 28-day period, they may be removed from
Australia.^[152]

The Minister has a non-compellable power to intervene after
an unfavourable RRT or AAT decision relating to a protection visa to substitute
a more favourable decision to the applicant if the Minister believes it is in
the public interest.^[153] Applicants may also seek judicial review of an unfavourable RRT or AAT decision
in limited circumstances.

What happens to people who do not meet the definition of refugee but are
in need of protection?

There are some people who are found not to be refugees by Australia’s
refugee status determination system, but who otherwise may face significant
human rights abuses if returned to their countries. For example, they may not
meet one of the grounds for persecution under the Refugee Convention, but might
face torture or death on return.

Australia has obligations under the International Covenant on Civil and
Political Rights, the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment and Punishment and the Convention on the Rights of
the Child not to return people who risk these significant human rights
violations. Similarly, Australia has international obligations not to return a
person if they are stateless (no state considers them to be a national of their
country).

Some countries provide a formal system of ‘complementary’ or
‘subsidiary’ protection’ for these
people.^[154] However, in Australia
currently the only avenue of protection is to apply to the Minister for
Immigration and Citizenship to exercise his/her personal discretion under
section 417 of the Migration
Act 1958 (Cth).

top | contents

3.7 Why are refugees allowed to stay in Australia?

Every country
that has adopted the Refugee Convention, including Australia, makes a commitment
to protect the rights of refugees. The crucial part of this commitment is never
to return a refugee to a country where he or she has reason to fear
persecution.

Article 33 of the Refugee Convention is titled ‘Prohibition of
expulsion or return (‘refoulement’)’ and says:

1. 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.

2. The benefit of the present provision may not, however, be claimed by a
refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the community
of that country.^[155]

As a signatory to the Refugee Convention, Australia is obliged to provide
protection to those people, regardless of whether they entered Australia
lawfully or unlawfully. This means that Australia must give authorised and
unauthorised arrivals the chance to prove whether or not they are refugees
before removing them from the country. Australian law requires that people who
have not succeeded in their claim for refugee protection and who have no lawful
basis to remain in Australia, be removed from Australia as soon as practicable.

top | contents

3.8 What settlement services does Australia
provide to refugees?

Humanitarian entrants like migrants have access to
the Adult Migrant Education Program (AMEP). There are also some programs
administered by DIAC specifically for refugees and other humanitarian
entrants.

The Australian Cultural Orientation Program (ACOP): is available to
all refugee and special humanitarian entrants over five years of age and is
delivered offshore to provide an overview of Australia, including: government,
geography and climate, cultural adjustment, travel to Australia, settling in,
health care, education, finding a job, money management, housing, transport,
Australian laws and the role of police.

The Integrated Humanitarian Settlement Strategy (IHSS): provides
initial settlement assistance for humanitarian entrants for up to 12 months
after arrival, including: information and orientation assistance, assistance in
finding accommodation, a package of goods, assistance to access services and
become a part of the local community and short-term torture and trauma
counselling. Some asylum seekers that are granted an Onshore Protection Visa
have limited eligibility to IHSS services.

The Settlement Grants Program (SGP): provides organisations with
funding to provide settlement support to eligible migrants and humanitarian
entrants, for up to five years after arrival. It aims to deliver services which
help new arrivals to become self reliant and participate equitably in Australian
society as soon as possible after arrival.

Other programs include:

increased assistance with rental, utilities and transport costs in the first
month after arrival
Complex Case Support (CCS) services which deliver specialised and intensive
case management to recently arrived humanitarian entrants where pre-migration
experiences, such as severe torture and trauma, serious medical conditions and/
or crisis events after arrival in Australia, present significant barriers to
successful settlement
an additional one-off income support payment for humanitarian entrants
on-arrival (through Centrelink).

top | contents

3.9 Past policies in Australia

**What was the ‘Tampa’ issue?**

In August 2001, the
Norwegian cargo ship MV Tampa rescued 433 mostly Afghani and Iraqi asylum
seekers from a sinking boat in the Indian Ocean. The Howard Government refused
permission for the Tampa to enter Australian waters and allow its
passengers to get off on nearby Christmas Island, an Australian Territory.
Despite the government's warning, the Tampa entered Australian waters and
the ship was boarded by Australian Special Air Services (SAS) troops. The
passengers were transferred from the Tampa to an Australian Navy ship and
taken to Nauru. The government of Nauru agreed to house the asylum seekers in
return for economic aid from Australia.

The Howard Government's refusal to allow asylum seekers on the Tampa to land on Australian territory was later challenged in the Federal Court, which
upheld the right of the government to act as it
did.^[156] The Tampa incident was a
major catalyst for debate in Australia regarding unauthorised boat arrivals and
for the implementation of the ‘Pacific Solution’.

What was the ‘Pacific Solution’?

The 'Pacific
Solution' or 'Pacific Strategy' aimed to prevent unauthorised boat arrivals from
reaching the Australian mainland and making refugee applications. The Howard
Government developed this strategy in September 2001 in response to the
'Tampa’ issue. It involved removing or 'excising' certain parts of
Australian territory through amendments to the Migration Act, including Ashmore
Reef and Cartier Island, Christmas Island and Cocos (Keeling) Islands, from
Australia's 'migration zone'. This means people landing in these places could
not access the Australian refugee determination system. Instead, they were
transferred to a 'declared country', such as the Pacific Island nation of Nauru
or Manus Province in Papua New Guinea, while their applications were being
assessed.

In March 2008 the Rudd Government ended the Pacific Solution and the last
remaining asylum seekers on Nauru were settled in Australia. Although asylum
seekers are no longer detained in Papua New Guinea or Nauru, the legislation
which excises certain parts of Australia remains. Unauthorised arrivals in
these places, for example Christmas Island, cannot apply for a visa unless
authorised by the Minister for Immigration and Citizenship. Their claims for
protection are not subject to the same processes and review mechanisms as asylum
seekers who arrive on mainland Australia. At the date of publication, the Rudd
Government had also announced some measures to improve their access to legal
assistance and review.

What were Temporary Protection Visas (TPV’s)

Temporary
Protection Visas were introduced by the Howard Government to deter unauthorised
arrivals. Under the policy, all unauthorised arrivals who applied for asylum
and who were found to be refugees were granted three year TPV’s only. In
contrast, asylum seekers who applied for protection while on a valid visa in
Australia were granted Permanent Protection Visas (PPV’s). In addition to
their temporary nature, TPV’s also restricted the rights of TPV holders to
family reunion and their right of return if they left Australia.

On 9 August 2008 Temporary Protection Visas (TPVs) were officially abolished.
All initial applicants for a protection visa who are found to be a refugee now
receive a Permanent Protection Visa. A number of Temporary Humanitarian Visas
(THVs) were also abolished in August 2008. These visas included the Subclass 451
– Secondary Movement Relocation (Temporary) and Subclass 447 –
Secondary Movement Offshore Entry (Temporary) visas. Former TPV and THV holders
who were still in Australia as of 9 August 2008 have access to a permanent visa
arrangement with the same benefits and entitlements of the PPV.

Visit http://www.aph.gov.au/library/pubs/online/Refugees_contents.htm for more information about the history of refugee policy in Australia.

top | contents

3.10 What is immigration detention?

Under the previous immigration
detention policy, 'unlawful non-citizens' had to be detained until they were
granted a visa (pursuant to a refugee claim or some other category) or were
removed from the country.An 'unlawful non-citizen' is a person
without a valid visa in Australia. People become 'unlawful non-citizens' if:

they enter Australia without a valid visa (i.e. if they are 'unauthorised
arrivals')
they enter Australia with a valid visa but then stay past the visa's expiry
date (i.e. they 'overstay' their visa)
they break the conditions of their visa (for example, by working when the
visa does not allow it)

if their visa has been
cancelled.^[157]

The law requiring immigration detention for 'unlawful non-citizens'
was introduced in 1992 and was then expanded in
1994.^[158]

As at the 12 September 2008, there were a total of 274 people in
detention:

What was the Palmer Report?

The Palmer Report was a result of an Inquiry held in July 2005, to determine
how an Australian resident, Cornelia Rau, came to be held for 10 months in
immigration detention, and an Australian citizen, Vivian Alvarez, came to be
deported to the Philippines.

The report highlighted problems concerning the provision of mental health
services to detainees, as well as identifying structural problems within
DIAC.

Source: M Palmer, Inquiry into the Circumstances of the Detention of
Cornelia Rau, 2005. At http://www.immi.gov.au/media/publications/pdf/palmer-report.pdfImmigration.

147 were detained because they overstayed their visa

67 were detained because their visa was cancelled
six were unauthorised boat arrivals
40 were unauthorised air arrivals
three were illegal foreign fishers
11 were detained for other reasons e.g. ship deserters and
stowaways.^[159]

Of the 274 people in immigration detention, 46 of these are in the
process of seeking asylum in
Australia.^[160]

In July 2008, the Minister for Immigration and Citizenship announced changes
to the mandatory immigration detention
system.^[161] The Minister
indicated that immigration detention centres will only be used as a last resort
and for the shortest possible period of time. Unauthorised arrivals will be
detained only until they have passed identity, health and security checks.

Children in immigration detention

Between 1 July 1999 and 30 June
2003, 2184 children arrived in Australia without a valid visa and sought asylum
– all these children were held in immigration detention while their
refugee status was being determined.

Between 2001-04, the Australian Human Rights Commission conducted a National
Inquiry into Children in Immigration Detention to investigate the human rights
of children in immigration detention. The report on the Inquiry is entitled A
last resort? Visit http://www.humanrights.gov.au/human_rights/children_detention_report/index.html to read the report.

National Inquiry into Children in Immigration Detention

From
November 2001 to April 2004, the Commission conducted a National Inquiry into
Children in Immigration Detention to investigate whether Australia's detention
laws complied with international law. The report of the Inquiry into Children in
Immigration Detention, A last resort? was tabled in Federal Parliament in
May 2004.^[162]

The Inquiry found that:

Australia's immigration detention policy is inconsistent with the Convention on the Rights of the Child
(1989).^[163] In particular,
Australia's mandatory immigration detention system failed to ensure a child's
right to be detained as a measure of last resort and for the shortest
appropriate period of time
children in immigration detention for long periods of time are at high risk
of serious mental harm
long-term detention undermines a child's ability to enjoy a variety of other
important rights.

Visit http://www.humanrights.gov.au/human_rights/children_detention_report/report/index.htm to read A last resort? The National Inquiry into Children in Immigration
Detention.

Recent developments for children and families in detention

Since
the tabling of A last resort?, the Migration Act was amended by
the Migration Amendment (Detention Arrangements) Act 2005 (Cth). Those
amendments:

affirm the principle that children shall only be detained as a last resort,
however, this principle is not directly enforceable
confer upon the Minister a new power (which is non-compellable and
non-reviewable) to grant a visa to a person in immigration detention where the
Minister is satisfied that it is in the public interest to do so
confer upon the Minister the power to specify alternative arrangements for a
person in immigration detention, which will enable the Minister to allow
families with children to reside in the community in a specified place (again
this power is non-compellable and non-reviewable)
confer upon the Commonwealth Ombudsman the function of reviewing the cases
of people who have been in immigration detention for more than two years. While
the Ombudsman is further empowered to make recommendations regarding such people
(including as to the appropriateness of their ongoing detention) such
recommendations will not be binding upon the Minister.

Since 29 July 2005, there have been no children held in Australian
Immigration Detention Centres. However, technically children are still held in
‘detention’, as most children and their families without visas are
detained in ‘community detention’ and Immigration Residential
Housing at the discretion of the Minister.

How many people are detained?

The number of people who are
detained in immigration detention each year varies greatly. In the last 10 years
the number has ranged from approximately 2700 people in 1997-98 to over 8500
people in 2004-05.^[164] There were
5485 people detained at some time during the 2006-07 period. The maximum number
of people detained on any one day in this period was
847.^[165]

Figure 3.4 Total number of people held in immigration detention between
1997-98 and 2006-07

Figure 3.4 Total number of people held in immigration detention between 1997-98 and 2006-07

Source: Department of Immigration and Citizenship, Immigration
Detention, Fact Sheet 82. At http://www.immi.gov.au/media/fact-sheets/82detention.htm (viewed 12 January 2008).Department of Immigration and Citizenship, Annual Report 2006-07, (2007). At http://www.immi.gov.au/about/reports/annual/2006-07/html/outcome1/output1_3_5.htm (viewed 12 January 2008).

Where are people detained?

Immigration Detention Centres (IDCs): mainly used to detain people whose
visas have been cancelled, who have breached their visa conditions or who have
overstayed their visa, and people refused entry at Australia's international
airports. These are secure facilities.
Immigration Residential Housing (IRH): enables people in immigration
detention to live in family-style accommodation.
Immigration Transit Accommodation (ITA): This is temporary accommodation for
people who are spending a short time in detention before they are returned home
or transferred to other facilities. Only people considered to be a low security
risk are housed in these
facilities.^[166]
Community Detention: In this situation people can be detained in the
community as authorised by the Minister under ‘residence
determinations’. People in community detention are able to live in the
community at a specified address and, subject to certain conditions, can
participate in community life without being accompanied or restricted. Community
detention allows families with children, unaccompanied minors or people with
special needs to live in the community where their needs can be better
addressed, while still being available to DIAC for immigration processing
purposes.

Table 3.5 Numbers of Persons in Immigration Detention as at
12 September 2008

Facility	Men	Women	Children	Total
Villawood IDC	126	12	0	138
Northern IDC	3	0	0	3
Maribyrnong IDC	41	6	0	47
Perth IDC	4	0	0	4
Christmas Island IRPC	0	0	0	0
*Total in Immigration Detention Centres*	*174*	18	0	*192*
Sydney Immigration Residential Housing	13	3	2	18
Perth Immigration Residential Housing	4	2	0	6
Brisbane Immigration Transit Accommodation	6	0	0	6
Melbourne Immigration Transit Accommodation	3	0	0	3
*Total in IRH and ITA*	26	5	2	33
Community Detentionⁱ	23	9	12	44
Alternative Temporary Detention in the Communityⁱⁱ	2	1	0	3
Restricted on Board Vessels in Portⁱⁱⁱ	2	0	0	2
*Total in Community and Alternative Detention*	25	10	12	47
*Total (All Locations)*	227	33	14	274

Community Detention does not require the person to be
accompanied by a designated person.
Includes detention in the
community with a designated person in private houses/ correctional facilities
/watch houses/ hotels/ apartments/ foster care/ hospitals.
The
requirement for ships’ crew who visit Australianports without
an appropriate visa to remain on their vessel while it is in their port (under
section 249 of the Migration Act 1958) has been enforced for each of these
people.

Source: Department of Immigration and Citizenship, Immigration
Detention Statistics Summary, 2008. At http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20080912.pdf (viewed 24 September 2008).

Immigration facilities at Port Hedland are also maintained as contingency
facilities on a needs basis but are not currently in
use.^[167]

Where do people in detention come from?

The main nationalities of
detainees held in detention in 2000-01 were Afghan, Iraqi, Iranian and
Palestinian. The main nationalities of those held in 2001-02 were Afghan, Iraqi,
Malay and Sri Lankan. Between 2002-03 and 2005-06, the main nationality of
detainees was Indonesian, followed by Chinese, Malay and
Korean.^[168]

top | contents

Footnotes

^[119] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 13. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[120] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 17. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[121] United Nations High
Commissioner for Refugees, ‘Table 9, Annexes’ 2007 Global
Trends, (2008) at http://www.unhcr.org/statistics/2007Global-Trends.zip,
(viewed 12 September 2008).

^[122] This excludes persons
who, since September 2001, arrived at Australia’s excised migration zones
or were being processed in Papua New Guinea or Nauru.

^[123] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 14. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[124] United Nations High
Commissioner for Refugees, ‘Table 9, Annexes’ 2007 Global
Trends, (2008). At http://www.unhcr.org/statistics/2007Global-Trends.zip,
(viewed 12 September 2008).

^[125] United Nations High
Commissioner for Refugees, Convention and Protocol Relating to the Status of
Refugees, United Nations, (1967), p. 16. At http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf,
(viewed 12 September 2008).

^[126] Visit www.unhcr.org for more information.

^[127] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 2. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008). ^[128] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 5. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[129] United Nations High
Commissioner for Refugees, ‘Table 1, Annexes’ 2007 Global
Trends, (2008). At http://www.unhcr.org/statistics/2007Global-Trends.zip,
(viewed 12 September 2008).

^[130] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 8. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[131] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 8. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[132] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 12. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[133] United Nations High
Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum Seekers,
Returnees, Internally Displaced Persons and Stateless Persons, UNHCR,
(2008), p. 12. At http://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf,
(viewed 11 September 2008).

^[134] J McAdam., Climate Change
‘Refugees’ and International Law, NSW Bar Association, 24
October 2007, p. 1-2.

^[135] N Myers, Environmental
refugees: a growing phenomenon of the 21^st century, Philosophical
Transactions of the Royal Society of London B, 357(1420),(2002), p. 609.

^[136] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[137] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[138] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm (viewed 15 September 2008).

^[139] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm (viewed 15 September 2008).

^[140] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[141] Department of Immigration
and Citizenship, Assistance for Asylum Seekers in Australia, Fact Sheet
62. At http://www.immi.gov.au/media/fact-sheets/62assistance.htm,
(viewed 15 September 2008).

^[142] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[143] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[144] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[145] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[146] Department of Immigration
and Citizenship, Australia’s Refugee and Humanitarian Programme,
Fact Sheet 60. At http://www.immi.gov.au/media/fact-sheets/60refugee.htm,
(viewed 15 September 2008).

^[147] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[148] This limit was placed on
processing time by the Prime Minister in 2005 to ensure that Australia met
it’s obligations under the Refugee Convention.

^[149] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[150] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[151] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[152] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[153] Department of Immigration
and Citizenship, Seeking Asylum within Australia, Fact Sheet 61. At http://www.immi.gov.au/media/fact-sheets/61asylum.htm,
(viewed 15 September 2008).

^[154] For example, Canada, the
USA and the European Union.

^[155] United Nations High
Commissioner for Refugees, Convention and Protocol Relating to the Status of
Refugees, (2007), p. 32. At http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf,
(viewed 12 September 2008).

^[156]Ruddock v Vadarlis (2001) 110 FCR 491.

^[157] Department of Immigration
and Citizenship, Immigration Detention, Fact Sheet 82. At http://www.immi.gov.au/media/fact-sheets/82detention.htm (viewed 12 January 2008).

^[158] Department of Immigration
and Citizenship, Immigration Detention, Fact Sheet 82. At http://www.immi.gov.au/media/fact-sheets/82detention.htm (viewed 12 January 2008).

^[159] Department of Immigration
and Citizenship, Immigration Detention Statistics Summary, 2008. At http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20080912.pdf (viewed 24 September 2008).

^[160] Department of Immigration
and Citizenship, Immigration Detention Statistics Summary, 2008. At http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20080912.pdf (viewed 24 September 2008).

^[161] Minister for Immigration
and Citizenship, ‘Labor unveils new risk-based detention policy’,
(Media Release, 29 July 2008). At http://www.minister.immi.gov.au/media/media-releases/2008/ce08072.htm (viewed 24 September 2008).

^[162] Human Rights and Equal
Opportunity Commission, A last resort? National Inquiry into Children in
Immigration Detention, (2004). At http://www.humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 19 September 2008).^[163]Convention on the Rights of the Child, 1989. At http://www2.ohchr.org/english/law/crc.htm (viewed 19 September 2008).

^[164] Department of Immigration
and Citizenship, Annual Report 2006-07, (2007). At http://www.immi.gov.au/about/reports/annual/2005-06/DIMA_AR/performance/Outcome_1_5.html (viewed 19 September 2008).

^[165] Department of Immigration
and Citizenship, Annual Report 2006-07, (2007). At http://www.immi.gov.au/about/reports/annual/2006-07/html/outcome1/output1_3_5.htm
(viewed12 January 2008).

^[166] Department of Immigration
and Citizenship, About Immigration Detention Facilities, http://www.immi.gov.au/managing-australias-borders/detention/facilities/about/immigration-detention-facilities.htm (viewed 19 September 2008).

^[167] Department of Immigration
and Citizenship, Future, Upgraded and Contingency Facilities, http://www.immi.gov.au/managing-australias-borders/detention/facilities/about/future-facilities.htm (viewed 19 September 2008).

^[168] Department of Immigration
and Citizenship, Immigration Detention, Fact Sheet 82. At http://www.immi.gov.au/media/fact-sheets/82detention.htm (viewed 12 January 2008).

^[169] Palmer, M., Inquiry
into the Circumstances of the Immigration Detention of Cornelia Rau (The
Palmer Report), The Department of Immigration and Citizenship, 2005. At http://www.immi.gov.au/media/publications/pdf/palmer-report.pdf (viewed 20 January 2008).

2008 Face the Facts - Chapter 3

Face the Facts (2008)

Questions and Answers about Asylum Seekers and Refugees

Download

3.1 Asylum seekers

Who are asylum seekers?

How many asylum seekers are there worldwide?

3.2 Refugees

Who is a refugee?

How many refugees are there worldwide?

What are the responsibilities of the UNHCR?

Who are environmental refugees?

How do refugees differ from migrants?

3.3 What is Australia’s policy on refugees?

Off-shore resettlement

On-shore protection

3.4 How many refugees come to Australia?

Table 3.1 Humanitarian Program, visa grants by category, 2003-04 to 2007-08

3.5 Where do refugees come from?

Table 3.2 Off-shore Resettlement Program, visas grants by region 1999-2000 to 2007-08

3.6 What happens to asylum seekers in Australia?

Who decides refugee applications in Australia?

What happens to people who do not meet the definition of refugee but are in need of protection?

3.7 Why are refugees allowed to stay in Australia?

3.8 What settlement services does Australia provide to refugees?

3.9 Past policies in Australia

What was the ‘Tampa’ issue?

What was the ‘Pacific Solution’?

What were Temporary Protection Visas (TPV’s)

3.10 What is immigration detention?

Children in immigration detention

National Inquiry into Children in Immigration Detention

Recent developments for children and families in detention

How many people are detained?

Figure 3.4 Total number of people held in immigration detention between 1997-98 and 2006-07

Where are people detained?

Table 3.5 Numbers of Persons in Immigration Detention as at 12 September 2008

Further reading[169]

Footnotes

Questions and Answers about Asylum Seekers and
Refugees

Table 3.1 Humanitarian Program, visa grants by
category, 2003-04 to 2007-08

Table 3.2 Off-shore Resettlement Program, visas grants by region 1999-2000
to 2007-08

What happens to people who do not meet the definition of refugee but are
in need of protection?

3.8 What settlement services does Australia
provide to refugees?

**What was the ‘Tampa’ issue?**

Figure 3.4 Total number of people held in immigration detention between
1997-98 and 2006-07

Table 3.5 Numbers of Persons in Immigration Detention as at
12 September 2008

Further reading^[169]