2011 Immigration detention in Leonora
2011 Immigration detention in Leonora
Summary
of observations from visit to immigration detention facility in Leonora
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Contents
PART B: Key concerns about immigration detention in Leonora
- 4 Mandatory detention
- 5 Length of detention
- 6 Physical conditions of detention
- 7 Children in detention
- 8 Health and mental health services
- 9 Education, recreation and excursions
- 10 Other concerns
PART
A: Introductory
sections
1 Introduction
The Australian Human Rights Commission visited the immigration detention
facility in Leonora, Western Australia from 23 to 26 November 2010. This
statement contains a brief overview of the key observations and concerns arising
from the Commission’s visit. It focuses on conditions as they were at that
time.
The Commission acknowledges the assistance provided by the Department of
Immigration and Citizenship (DIAC) in facilitating the Commission’s visit,
and the positive cooperation received from DIAC officers and detention service
provider staff during the visit. This statement was provided to DIAC in advance
of its publication in order to provide DIAC with an opportunity to prepare a
response. DIAC’s response is available on the Commission’s website.[1]
2 Background
For more than a decade, the Commission has raised significant concerns about
Australia’s immigration detention system. During this time, the Commission
has investigated numerous complaints from people in detention and conducted two
national inquiries into the mandatory detention
system.[2] The Commission has concluded that this system breaches fundamental human
rights.[3]
Because of its ongoing concerns, the Commission undertakes monitoring
activities which include conducting visits to immigration detention
facilities.[4] The overarching aim is
to ensure that conditions of detention meet internationally accepted human
rights standards. Further information about the Commission’s immigration
detention visits and visit reports can be found on the Commission’s website.[5]
3 Overview:
immigration detention in Leonora
Leonora is a small town in Western Australia, approximately 830 kilometres
northeast of Perth. The local population of the Leonora township is
approximately 1500 people.[6] The
nearest major town is Kalgoorlie, 230 kilometres away.
Main street, Leonora township
Leonora immigration detention facility
People in immigration detention in Leonora are held at the Leonora
immigration detention facility. This is a privately owned property leased by the
Australian Government and operated as a low-security immigration detention
facility. It is primarily used for the detention of families with children. The
facility is classified by DIAC as an ‘alternative place of
detention’. People detained in the facility are not permitted to leave
unless they are under escort.
The facility was opened as a place of immigration detention in June 2010. The
facility contains demountable buildings used as accommodation, clinic rooms, a
kitchen and dining room, laundry rooms, recreation spaces, a canteen, offices
and interview rooms. Additional photos of the facility are available on the
At the time of the Commission’s visit there were 202 people in
immigration detention in Leonora – 69 men, 67 women, 35 boys and 31
girls.[8] This included 52 people from
Iran, 50 from Afghanistan, 47 from Sri Lanka, 12 from Iraq and 39 stateless
people.[9] They were all people who
had arrived by boat and were seeking asylum in Australia.
At the time of the visit, the maximum capacity of the Leonora immigration
detention facility was approximately 220 people. The facility was being operated
by Serco Australia, the detention service provider contracted by the Australian
Government.
PART
B: Key concerns about immigration detention in
Leonora
4 Mandatory
detention
As has been the case with past visits to immigration detention facilities,
the Commission’s overarching concern during the Leonora visit was the
impact of the mandatory detention system on the human rights, wellbeing and
mental health of those detained. The Commission is particularly concerned about
the mandatory detention of children, as discussed in section 7 below.
Australia continues to have one of the strictest immigration detention
regimes in the world – it is mandatory, it is not time limited, and people
are not able to challenge the need for their detention in a court. The
Commission has for many years called for an end to this system because it leads
to breaches of Australia’s human rights obligations, including the
obligation not to subject anyone to arbitrary
detention.[10]
To avoid being arbitrary, detention must be necessary and reasonable in all
the circumstances of the case, and a proportionate means of achieving a
legitimate aim.[11] If that aim
could be achieved through less invasive means than detaining a person, their
detention will be rendered
arbitrary.[12]
Australia’s mandatory detention system fails to provide an individual
assessment mechanism to determine whether the immigration detention of each
person is necessary, reasonable or proportionate. Asylum seekers are not
detained because they are individually assessed as posing some form of risk.
Rather, all asylum seekers who arrive by boat are subjected to mandatory
detention – and, as discussed below, many spend long periods in
detention.
The Commission acknowledges that use of immigration detention may be
legitimate for a strictly limited period of time in order to undertake initial
health, identity and security checks. However, the need to detain a person
should be assessed on a case-by-case basis taking into consideration their
individual circumstances. A person should only be held in immigration detention
if they are assessed as posing a risk that cannot be appropriately met in a less
restrictive way, for example through reporting
requirements.[13]
Further, under
Australia’s international human rights obligations, anyone deprived of
their liberty should be able to challenge their detention in a
court.[14] To comply with article
9(4) of the International Covenant on Civil and Political Rights (ICCPR),
the court must have the power to order the person’s release if their
detention is not lawful. The lawfulness of their detention is not limited to
compliance with Australia’s domestic law – it extends to whether
their detention is compatible with the requirements of article 9(1) of the
ICCPR, which affirms the right to liberty and prohibits arbitrary
detention.[15]
Currently, in breach of its international obligations, Australia does not
provide access to such review. While people in immigration detention may be able
to seek judicial review of the domestic legality of their detention, Australian
courts have no authority to order that a person be released from immigration
detention on the grounds that the person’s continued detention is
arbitrary, in breach of article 9(1) of the ICCPR.
5 Length
of detention
The Commission has serious concerns about the increasing length of time for
which many people are being held in immigration detention. As of 3 December
2010, there were 6329 people in immigration detention in Australia, and more
than forty percent of them had been detained for longer than six months. More
than 200 people had been detained for longer than twelve
months.[16]
In 2008, the Commission welcomed the Australian Government’s ‘New
Directions in Detention’ policy, under which immigration detention is to
be used for the shortest practicable
period.[17] Under the New Directions policy, an asylum seeker should only be held in
immigration detention while their health, identity and security checks are
conducted. After this, the presumption should be that they will be permitted to
reside in the community unless a specific risk justifies their ongoing
detention. The New Directions policy recognises that once health, identity and
security checks have been successfully completed ‘continued detention
while immigration status is resolved is
unwarranted’.[18]
However, this policy has not been enshrined in legislation or implemented in
practice. In reality, asylum seekers who arrive by boat are held in immigration
detention for the duration of the processing of their refugee claims – and
in some cases, beyond that, while they await the conduct of security
clearances.
At the time of the Commission’s visit to Leonora, almost 80 percent of
the 202 people in immigration detention there had been detained for longer than
three months, and more than 60 percent had been detained for longer than six
months. Eleven people, including three children, had been detained for longer
than nine months.[19] All of the
people detained in Leonora had spent an initial period in detention on Christmas
Island, and most were transferred from there to Leonora. Some also spent time in
immigration detention in Darwin after being detained on Christmas Island and
before being transferred to Leonora.
During the Leonora visit, the Commission was concerned about a number of key
factors contributing to people spending prolonged periods in immigration
detention:
-
The suspension of processing of claims lodged by asylum seekers from Sri
Lanka and Afghanistan who arrived on or after 9 April 2010 contributed to the
prolonged detention of hundreds of people in Australia, including many
children.[20] At the time of the
Commission’s visit, there were 76 people detained in Leonora who had been
affected by the suspension, including 32
children.[21] The Commission
welcomed the lifting of both suspensions and continues to encourage DIAC to take
all appropriate steps to process the backlog of asylum claims as quickly as
possible.
-
Delays with security clearances appeared to be contributing to the prolonged
detention of a significant number of people. It is of particular concern that
these delays were affecting people in respect of whom Australia has been
assessed as owing protection obligations. The Commission was informed that there
were 40 individuals in this situation in Leonora, some of whom remained in
detention four months after receiving a positive refugee status assessment (RSA)
decision.[22] The Commission met
with a number of families who had received positive RSA decisions, but who
remained in detention months later awaiting a security clearance.
- The Commission has been concerned by reports over recent months that a
significant number of asylum seekers in detention have not been notified of
their RSA decisions until weeks or months after the decisions were made. The
Commission met with a number of people in detention in Leonora who reported
being affected by such delays. These delays may have the effect of prolonging
people’s detention and could lead to breaches of Australia’s
obligations not to subject anyone to arbitrary
detention.[23] The Commission has
sought confirmation from DIAC that the delays are no longer occurring and that
in all cases where there was delay in notification of a negative RSA decision,
action has been taken to mitigate the delay by prioritising the case for
independent merits review. DIAC has informed the Commission that people affected
by delayed negative RSA outcomes have been prioritised for independent merits
review where that has been sought; and that new controls are being introduced,
including interim policy guidelines which set maximum timeframes for
notification of
decisions.[24]
The
Commission has serious concerns about the impacts that prolonged and indefinite
periods of detention may have on the mental health and wellbeing of people
detained. The Commission heard about some of those impacts from people in
detention in Leonora, as discussed in section 8 below. Many people expressed
extreme frustration about the length of time they had been detained, the
indefinite nature of their detention, delays with RSA processing and security
clearances, and a lack of regular provision of information about progress with
their cases.
6 Physical
conditions of detention
camps?”
(Woman detained in Leonora)
The Commission welcomes efforts by DIAC and Serco staff at the Leonora
immigration detention facility to provide appropriate conditions for people in
detention. During its visit, the Commission observed that individual staff
members were working hard to do so. However, it appeared that they were subject
to numerous constraints related to staffing levels, limited resources,
remoteness and infrastructure.
During its visit the Commission had a range of concerns about the conditions
of detention for people in the Leonora facility, including the following:
- The facility is located in a small town in a remote location. The Commission
was pleased to hear expressions of support from members of the Leonora
community, and it was clear that there had been benefits for the local community
from having the immigration detention facility located there. However, the
Commission has previously raised concerns about the difficulties associated with
holding people in immigration detention in remote locations – concerns
which apply in the case of Leonora. These include the impacts on
detainees’ access to services and community-based support networks, and
the challenge of attracting and retaining sufficient numbers of qualified staff
willing to be based in such locations for extended periods.
Soccer pitch, outside fence line of Leonora immigration
detention facility
-
The physical environment of the Leonora facility is quite harsh. It is not
an appropriate place to hold families with children in detention, particularly
for long periods of time. The outdoor heat is often extreme, and there is a
limited amount of grassy and shaded space inside the facility. A number of the
outdoor areas consist only of red dirt. Parents raised concerns about the safety
and wellbeing of their young children in this hot and dusty environment. The
Commission encourages DIAC to explore options for covering some of the dirt
areas with grass, gardens, turf and/or paved pathways.
-
The harsh nature of the outdoor environment is exacerbated by the limited
amount of indoor recreation space. During the Commission’s visit there was
one large recreation room inside the facility, to be shared by 200 people.
Parents said there were not enough indoor areas for their young children to play
away from the heat and dirt. The Commission welcomes the fact that there are
minor building works underway which will result in the availability of several
additional recreation rooms. The Commission urges DIAC to ensure that the work
is completed as quickly as possible.
-
Other than a recently installed turf volleyball court, there are limited
outdoor recreation spaces inside the facility. The Commission welcomes the
installation of a children’s playground and a turf soccer pitch. However,
at the time of the Commission’s visit, they were located outside the
facility’s fence line, with the result that people in detention had
limited access to them. The Commission encourages DIAC to ensure that the fence
line is moved as an urgent priority so that people will have free access to
these recreation areas. The Commission also urges DIAC to ensure that plans to
install shade cloth over the children’s playground are implemented as soon
as possible, as the extreme heat and lack of shade make the play equipment
unusable during most of the day.
- The Commission heard a significant number of complaints about the lack of a
gym or exercise room inside the facility. In particular, women expressed the
need for an indoor area where they could exercise in relative privacy away from
the extreme heat. The Commission welcomes plans to create a gym room as part of
the minor building works, and urges DIAC to ensure the completion of this work
as soon as possible.
7 Children
in detention
“This place is not suitable for our children.” (Man
detained in Leonora)
“My children come home from school and ask ‘Why are they
doing this to us Mum? Why are we still here?’” (Woman detained
in Leonora)
The Commission has welcomed efforts over recent years to improve immigration
detention conditions for children. However, the Commission continues to have
serious concerns about the mandatory detention of children, the high number of
children in immigration detention facilities around Australia, and the
increasing length of time for which many children are being detained.
As of 3 December 2010, there were 918 children in immigration detention in
Australia.[25] The Commission
welcomes the fact that children are no longer held in Australia’s high
security immigration detention centres (IDCs). However, children are still
detained in other types of immigration detention facilities, including the
facility in Leonora.[26]
Child asylum seekers continue to be subjected to mandatory immigration
detention. This breaches Australia’s obligations under the Convention
on the Rights of the Child (CRC), which require that a child should only be
detained as a measure of last resort and for the shortest appropriate period of
time.[27] These principles apply not
only to detention of children in high security IDCs, but also to detention of
children in other facilities. The Australian Government should consider any less
restrictive alternatives (including Community Detention, as discussed below)
before deciding to detain a child in an immigration detention facility. Children
should not be detained in such facilities as a matter of course; it should only
take place in exceptional
cases.[28]
The physical environment in such facilities is preferable to IDCs in that the
security measures are much less intrusive. However, they are still closed
detention facilities from which children and their families are not free to come
and go. Children might be escorted to an external school during the day or they
might be able to take part in supervised excursions, but during the remainder of
their time they are restricted to the detention facility.
During the Commission’s visit to Leonora, there were 66 children in the
immigration detention facility there – 31 girls and 35 boys. The children
ranged in age from four months to 17 years. There were 11 babies or toddlers
aged up to two years, 18 children aged three to five years, 18 children aged six
to ten years, and 19 children aged 11 to 17
years.[29]
The Commission welcomes efforts by DIAC and Serco staff in Leonora to provide
children in detention with access to appropriate conditions, services and
support. It was clear that individual staff members were making significant
personal efforts in this regard, despite dealing with numerous challenges.
However, during its visit the Commission had particular concerns about the
following issues relating to the detention of children in Leonora:
-
Many children are spending longer periods in immigration detention. At the
time of the Commission’s visit, more than 80 percent of the 66 children in
detention in Leonora had been detained for longer than three months. Fifty of
the children had been detained for longer than six months, three of whom had
been detained for ten months.[30] The Commission has for many years raised serious concerns about the impacts of
prolonged detention on children. In A last resort?, the 2004 report of
the National Inquiry into Children in Immigration Detention, the Commission
found that children in immigration detention for long periods were at high risk
of serious mental harm.[31]
-
There was no Memorandum of Understanding between DIAC and the Western
Australia Department for Child Protection. This should be pursued to ensure
there are clear guidelines in place regarding responsibilities and procedures
relating to the welfare and protection of children detained at the Leonora
facility.
-
DIAC and Serco staff had not been not provided with a written policy setting
out the procedure to follow in the case of concerns that may arise about the
welfare or protection of a child detained in the Leonora facility. All relevant
staff working in the facility should be provided with a localised policy setting
out the requirements and procedures for making child welfare and protection
notifications, and training on this policy.
-
As discussed in section 6 above, the physical environment of the Leonora
facility is quite harsh. It is not an appropriate place to hold families with
children in detention, particularly for long periods of time. Parents raised
concerns about the safety and wellbeing of their young children in the hot and
dusty environment.
-
The Commission is pleased that school-aged children detained in Leonora are
able to attend the local school. However, the Commission is concerned that
pre-school aged children are provided with limited opportunities to leave the
detention environment and to take part in active play and learning activities.
Many parents raised concerns about the limited availability of meaningful
activities for their pre-school aged children and the lack of safe spaces for
them to play away from the heat and dirt. These issues are discussed further in
section 9 below.
- While some people detained at the Leonora facility welcomed the quality of
food in the dining room, parents expressed concerns about food for their
children. Some parents expressed concerns that the food in the dining room was
not appropriate for toddlers or young children, and requested that they be
allowed to prepare food for their own families. Many parents raised concerns
about the ban on taking food out of the dining room. This complicates feeding
toddlers and young children who may not eat at prescribed meal times, but get
hungry for substantial meals (as opposed to the snack packs provided) at other
times. The Commission encourages DIAC to work with the kitchen contractor to
remove the ban on taking food out of the dining room.
The
Commission is concerned that families with children are detained in an
immigration detention facility in Leonora rather than being placed in
community-based alternatives to detention.
The Commission has previously raised concerns about the under-utilisation of
the Community Detention system
nationally.[32] This concern applies
in the case of families detained in Leonora. At the time of the
Commission’s visit, there had been two referrals for consideration of
Community Detention placements for people detained in Leonora. This is a very
low rate of referral given that virtually all of the people detained in Leonora
would appear to meet one or more of the priority criteria under the Residence
Determination Guidelines.[33]
The Commission welcomed the announcement on 18 October 2010 that the Minister
for Immigration would begin to use his existing Residence Determination powers
to move some families and unaccompanied minors into Community
Detention.[34] The Commission has
encouraged the Australian Government to expand these efforts to include all
children in immigration detention and to implement them as quickly as
possible.
8 Health
and mental health services
unwell. By the time we get our visas it is too late.” (Man detained in
Leonora)
Under international human rights standards, all people have a right to the
highest attainable standard of physical and mental
health.[35] Each person in detention
is entitled to medical care and treatment provided in a culturally appropriate
manner and to a standard which is commensurate with that provided in the general
community. This should include preventive and remedial medical care and
treatment including dental, ophthalmological and mental health
care.[36]
The Commission is of the view that there is a need for rigorous ongoing
monitoring of the delivery of health and mental health services in immigration
detention facilities in Australia, and has recommended that an independent body
be charged with this monitoring
function.[37] This is particularly
important as more people are being detained for longer periods of time.
During its visit to Leonora, the Commission had some concerns about the
provision of health and mental health services for people in immigration
detention, as summarised below.
8.1 Health
Health services are provided to people in the Leonora immigration detention
facility by IHMS, the contracted health service provider. A number of small
clinic rooms are located inside the facility. At the time of the
Commission’s visit, a new and more spacious health clinic was under
construction. The onsite IHMS health team consists of a Regional Health Manager
and two registered nurses. A general practitioner visits the facility to see
patients during two three-hour sessions each week.
The Commission welcomes efforts by health staff to ensure that people
detained in Leonora have access to appropriate services and treatment. The
Commission heard some positive feedback from people in detention about the
assistance provided by health staff. Other people, however, expressed
dissatisfaction about the medical treatment they had received.
The Commission had some concerns about the provision of health services for
people in the Leonora immigration detention facility. These included the
following:
-
The Commission is concerned about the impact on access to health services of
detaining people in small, remote locations such as Leonora. This is a
particular concern in terms of access to specialist and dental care. These
services are not available for people in the Leonora facility – they
require a referral and escorted transport to Kalgoorlie, a 230 kilometre
drive.
-
The Commission heard a number of complaints from people in detention about
long waiting periods for access to dental care. In some cases this was in
situations where people claimed they were experiencing significant ongoing pain
or had a relatively serious complaint – for example, where a filling or a
tooth had fallen out. As noted, people in the Leonora facility are not able to
access dental care in Leonora – they have to be referred and escorted to
Kalgoorlie. DIAC informed the Commission that consideration was being given to
bringing a dentist to Leonora to offer appointments through the local hospital.
The Commission encourages prompt action on this issue.
- The Commission met with a number of pregnant women in the Leonora facility,
two of whom had not yet been seen by a general practitioner or provided with
access to an ultrasound. They claimed they had not been informed of what
antenatal care would be provided to them. The Commission has encouraged DIAC and
IHMS to clarify the procedures and timeframes for provision of ante-natal care,
and to ensure that this information is clearly communicated to all pregnant
women in detention.
8.2 Mental health
Mental health services are provided to people in the Leonora immigration
detention facility primarily by IHMS. The onsite IHMS mental health team
consists of two mental health nurses and a psychologist. In addition, torture
and trauma services are provided by the Association for Services to Torture and
Trauma Survivors (ASeTTS). At the time of the Commission’s visit, there
was one ASeTTS counsellor based at the Leonora facility, but generally there are
two.
The Commission welcomes efforts by mental health staff to ensure that people
detained in Leonora have access to appropriate services and support.
However, as noted in section 5 above, the Commission has serious concerns
about the impacts that prolonged and indefinite periods of detention may have on
the mental health and wellbeing of people detained. The Commission heard about
some of those impacts from people in detention in Leonora. Many people expressed
extreme frustration about the length of time they had been detained and the
indefinite nature of their detention. Some people expressed concerns that the
uncertainty and prolonged period in detention may have adverse psychological
impacts on them if their detention continued much longer. Others expressed
concerns that their mental health or that of family members had already been
adversely affected.
The Commission had some concerns about the provision of mental health
services for people in the Leonora immigration detention facility. These
included the following:
-
The Commission is concerned about the impact on access to mental health
services of detaining people in small, remote locations such as Leonora. This is
a particular concern in terms of access to psychiatric services. These services
are not available for people in the Leonora facility – they require a
referral and escorted transport to Kalgoorlie, a 230 kilometre drive.
- At the time of the Commission’s visit, DIAC and detention service
provider staff in Leonora had not received training on the Psychological Support
Program (the DIAC policy regarding the identification and support of people in
immigration detention who are at risk of self-harm and
suicide).[38] Appropriate staff
training should be conducted as soon as possible.
During its visit
to Leonora, the Commission was concerned that there appeared to be cases in
which people met the priority criteria for consideration of a Community
Detention placement based on mental health concerns, but they had not been
referred for a Residence Determination.
The Commission has encouraged the Australian Government to make full use of
the Community Detention system.[39] As noted above, the Commission welcomed the October 2010 announcement that some
families and unaccompanied minors would be moved into Community Detention. Under
the Residence Determination Guidelines, people with significant physical or
mental health concerns, people who may have experienced torture or trauma and
people whose cases will take a considerable period to substantively resolve
should also be given priority consideration for Community
Detention.[40]
9 Education,
recreation and excursions
(Man detained in Leonora, requesting that people in detention be able to
spend their time constructively by volunteering.)
Under international human rights standards, people in immigration detention
should have access to materials and facilities for exercise, recreation,
cultural expression and intellectual and educational pursuits to utilise their
time in detention in a constructive manner, and for the benefit of their
physical and mental health.[41]
9.1 Educational
activities
(a) Children
The CRC protects the rights of all children to education, to engage in play
and recreational activities appropriate to their age, and to participate in
cultural and artistic
activities.[42]
The Commission is pleased that school-aged children in immigration detention
in Leonora are able to attend the local school. This not only provides those
children with the opportunity to enjoy their right to education, but importantly
also provides them with opportunities to play and engage with other children
outside the detention environment. The Commission heard positive comments from
parents in detention about the quality of the education their children were
receiving at the local school, and heard positive feedback from the school about
some of the benefits of having a new group of culturally diverse children among
their student body. The Commission visited the school and observed children from
the detention facility engaging in meaningful educational and recreational
activities.
While the Commission welcomes this situation in relation to school-aged
children, the Commission is concerned that pre-school aged children in detention
in Leonora are provided with limited opportunities to leave the detention
environment and to take part in active learning and play activities. At the time
of the Commission’s visit, there were 23 children aged four years or
younger in the Leonora detention
facility.[43] As discussed in
section 7 above, many parents raised concerns about the limited availability of
meaningful activities for their pre-school aged children and the lack of safe
spaces for them to play.
At the time of the visit, there was a small crèche room inside the
facility that had been operating for a few hours each day. Parents welcomed
this, but some reported that a larger space and longer hours of operation were
needed. A larger crèche room was opened during the Commission’s
visit. The Commission welcomed this positive development. However, the new
crèche room was located outside the facility’s fence line. The
Commission encourages DIAC to ensure that the fence line is moved as soon as
possible so that people in detention will have freer access to this area, and to
work with Serco to increase the hours during which the crèche room is
accessible.
The Commission also encourages DIAC to explore the possibility of providing
pre-school aged children with appropriate opportunities to take part in active
learning and play activities outside the detention environment. In particular,
this might include making arrangements in order to allow four year old children
to attend the local pre-school.
(b) Adults
The Commission welcomes efforts to provide onsite English classes for adults
detained at the Leonora facility. Such classes are important both in providing
people with a constructive way to spend their time in detention, as well as
assisting them to improve their English communication skills in order to better
prepare them for living in the Australian community.
However, during its visit the Commission heard numerous complaints from
people in detention about the limited number of English classes for adults. Many
people claimed that they were only able to attend one English class each week,
and that often the level of instruction was not appropriate for them.
The Commission acknowledges the constraints that Serco staff have faced in
securing an adequate number of English teachers in Leonora, which is a very
small community. Such constraints reinforce the Commission’s concerns
about locating detention facilities in small, remote locations.
At the time of the Commission’s visit, plans were underway to hire an
additional teacher and to increase the number of English classes on offer. The
Commission welcomes these plans and encourages DIAC and Serco to ensure that all
people who wish to do so are able to participate in an adequate number of
English classes, taught at an appropriate level.
9.2 Recreation
The provision of regular, engaging and constructive activities is vital to
people’s capacity to cope in immigration detention, particularly when they
are detained for long periods of time.
During the Commission’s visit to the Leonora immigration detention
facility, many people expressed frustration about the length and indefinite
nature of their detention, and told the Commission that they would like to be
provided with further opportunities to spend their time in detention in an
engaged and constructive way.
The Commission welcomes efforts over past months to increase the availability
of recreational activities for people detained at the Leonora facility. Staff
facilitate a range of recreational activities inside the facility including
sewing, knitting, arts and crafts and occasional cultural cooking sessions. In
addition, volunteers have visited the facility on several occasions to run
recreational activities for people in detention.
Records provided by Serco suggested that significant efforts were being made
to run a broad range of recreational activities in the facility, but that these
efforts were impacted by resource constraints. In particular, staff shortages
forced the cancellation of a number of scheduled activities, usually because
Serco staff were required to escort people in detention to Kalgoorlie for
medical appointments.[44]
The Commission heard some positive comments from people in detention about
particular recreational activities offered in the Leonora facility. However, the
Commission also heard numerous complaints that there were not enough activities
conducted on a regular basis. Many people expressed frustration about not having
a constructive way to pass their time, and some said they felt this was having
impacts on their physical and mental health. This is a particular concern given
the lengthy periods many people are spending in detention.
A number of people expressed the desire to engage in some form of
constructive voluntary activity, either inside or outside the detention
environment. The Commission has encouraged DIAC to explore appropriate
volunteering opportunities.
As discussed in sections 6 and 9.1 above, the external and internal
recreation spaces in the Leonora facility were inadequate at the time of the
Commission’s visit. In particular there was no onsite gym area, there was
only one large recreation room to be shared by 200 people, the newly installed
soccer pitch and children’s play equipment were not freely accessible, and
parents raised concerns about the lack of safe spaces for their young children
to play.
In addition, the Commission was concerned about the lack of reading materials
for adults in the Leonora facility. There were a few books in English, but there
were virtually no multilingual reading materials onsite. While a small number of
people had been taken on an excursion to the local library, others were unaware
this possibility existed. There were no newspapers available either in English
or foreign languages, and some people expressed frustration about not being able
to read news about their home country. While internet access could alleviate
this to some extent, there was limited access to computers and not all people
were able to access news online – for example, there was no Tamil script
available on the computers.
9.3 Excursions
Providing people in immigration detention with regular opportunities to leave
the detention environment can be vital in assisting them to cope with the
deprivation of their liberty, particularly when they are detained for long
periods of time. People detained at the Leonora facility are subjected to
significant restrictions on their liberty. They are not permitted to leave the
facility unless they are under escort.
The Commission welcomes efforts to provide people detained at the Leonora
facility with opportunities to take part in escorted excursions to places
including a local children’s playground, a local oval, the community
recreation centre and a local museum. However, the Commission heard a
significant number of complaints from people in detention about the limited
number of excursions.
Serco provided the Commission with records which indicated that in the three
months leading up to the Commission’s visit, there had been between seven
and thirteen excursions conducted each week, with approximately 475 excursion
places per month on average.[45] That would have allowed each person the chance to leave the detention facility
on an escorted excursion on average two or three times each month.
While the Commission welcomes these efforts, it appears that not all people
in detention in Leonora were able to take part in excursions as often as that.
Some people reported being able to go on an excursion approximately once each
week, while others said they were able to go approximately once each month. A
small number of people claimed they had not been on any external excursions
during the time they had been detained in Leonora.
Some people claimed that there was ‘discrimination’ in decisions
about who was selected to participate in excursions, and some women reported
that men were taken on a much higher number of exercise related excursions. This
may indicate a need for clearer communication with people in detention about the
availability of excursions and the process for determining who participates.
The Commission encourages DIAC and Serco to ensure that all people detained
in the Leonora facility are provided with regular opportunities to participate
in external excursions.
10 Other
concerns
During its visit, the Commission heard a range of other concerns from people
in immigration detention in Leonora. These included the following:
-
The Commission heard numerous complaints from people in detention in Leonora
about the high turnover in DIAC Case Managers. Some people claimed to have been
assigned a new Case Manager on a monthly basis. In combination with their
prolonged period in detention and delays with processing and security
clearances, this turnover appeared to be causing significant frustration and a
lack of faith in the refugee status assessment process. This is not a criticism
of individual Case Managers in Leonora, some of whom the Commission heard
positive comments about. Rather, it is a concern about the system of posting
Case Managers to detention locations for short periods of time. The Commission
encourages DIAC to ensure greater continuity in the Case Management service.
- There were no regular religious services in the detention facility for
people who practiced a religion other than Christianity, and people were not
being provided with any opportunity to attend a place of worship outside the
detention environment. The Commission welcomes efforts to provide a fortnightly
Christian service inside the detention facility, and welcomes that support was
provided to allow for one visit by an Imam. The Commission acknowledges the
difficulties in providing access to religious services, given the limited number
of religious representatives and groups in the Leonora community. However, these
difficulties reinforce the Commission’s concerns about detaining people in
such a small and remote location.
PART
C: Recommendations
Recommendation 1: Australia’s mandatory detention law should
be repealed. The Migration Act should be amended so that immigration detention
occurs only when necessary. This should be the exception, not the norm. It must
be for a minimal period, be reasonable and be a proportionate means of achieving
at least one of the aims outlined in international law. The limited grounds for
detention should be clearly prescribed in the Migration
Act.[46]
Recommendation 2: The Migration Act should be amended to accord with
international law by requiring that a decision to detain a person, or a decision
to continue a person’s detention, is subject to prompt review by a court.
To comply with article 9(4) of the ICCPR, the court must have the power to order
the person’s release if their detention is not lawful. The lawfulness of
their detention is not limited to domestic legality – it includes whether
the detention is compatible with the requirements of article 9(1) of the ICCPR,
which affirms the right to liberty and prohibits arbitrary
detention.[47]
Recommendation
3: Until the above legislative changes are implemented, the Australian
Government should avoid the prolonged detention of asylum seekers by:
- Ensuring full implementation of its New Directions policy under which asylum
seekers should only be held in immigration detention while their health,
identity and security checks are conducted. After this, the presumption should
be that they will be permitted to reside in the community unless a specific risk
justifies their ongoing detention.
- Ensuring that security checks are conducted as quickly as possible.
Recommendation 4: The Australian Government should
implement the outstanding recommendations of the report of the National Inquiry
into Children in Immigration Detention, A last
resort?.[48] These include that Australia’s immigration detention laws should be
amended, as a matter of urgency, to comply with the Convention on the Rights
of the Child. In particular, the new laws should incorporate the following
minimum features:
- There should be a presumption against the detention of children for
immigration purposes.
- A court or independent tribunal should assess whether there is a need to
detain children for immigration purposes within 72 hours of any initial
detention (for example, for the purposes of health, identity or security
checks).
- There should be prompt and periodic review by a court of the legality of
continuing detention of children for immigration purposes.
- All courts and independent tribunals should be guided by the following
principles:
- detention of children must be a measure of last resort and for the
shortest appropriate period of time
- the best interests of children must be a primary consideration
- the preservation of family unity
- special protection and assistance for unaccompanied children.
- detention of children must be a measure of last resort and for the
Recommendation 5: People should not be held in
immigration detention in remote locations such as Leonora. If people must be
held in immigration detention facilities, they should be located in metropolitan
areas.
Recommendation 6: DIAC should pursue the adoption of a Memorandum of
Understanding with the Western Australia Department for Child Protection in
order to ensure clear guidelines are in place regarding responsibilities and
procedures relating to the welfare and protection of children in immigration
detention in Leonora.
Recommendation 7: DIAC should ensure that all relevant DIAC officers
and staff members of detention service providers are given a localised policy
setting out the requirements and procedures for making child welfare and
protection notifications in relation to concerns that arise in respect of
children in immigration detention in Leonora. Staff should also be provided with
training on this policy.
Recommendation 8: DIAC should explore possibilities for providing
pre-school aged children in immigration detention in Leonora with appropriate
opportunities to take part in active learning and play activities outside the
detention environment. In particular, this might include making arrangements in
order to allow four year old children to attend the local pre-school.
Recommendation 9: DIAC should ensure that people in immigration
detention in Leonora are provided with timely access to appropriate health and
mental health services. In particular, this should include timely access to
appropriate specialist, dental, ante-natal and psychiatric care.
Recommendation 10: DIAC should ensure that all people in immigration
detention in Leonora have access to:
- adequate outdoor recreation spaces including sufficient grassy and shaded
areas
- adequate indoor recreation spaces including a gym or exercise room, and safe
and appropriate play areas for young children
- a range of recreational activities conducted on a regular basis
- a sufficient number of English classes
- an adequate supply of reading materials in the principal languages spoken by
people in detention
- regular opportunities to leave the detention environment on external
excursions.
Recommendation 11: DIAC should ensure that all
people in immigration detention in Leonora who seek to do so have access to
regular religious services conducted by qualified religious
representatives.
Recommendation 12: DIAC should take appropriate measures to ensure
greater continuity in the Case Management service, both in Leonora and other
immigration detention locations.
[1] See http://www.humanrights.gov.au/human_rights/immigration/idc2011_leonora_response.html.
[2] The Commission’s reports of complaints about alleged human rights breaches
in immigration detention are available at http://humanrights.gov.au/legal/humanrightsreports/index.html.
The Commission’s national inquiry reports are A last resort? National
Inquiry into Children in Immigration Detention (2004) (A last resort), at http://humanrights.gov.au/human_rights/children_detention_report/index.html,
and Those who’ve come across the seas: Detention of unauthorised
arrivals (1998) (Those who’ve come across the seas), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 4 January 2011).
[3] See,
for example A last resort, note 2; Those who’ve come across the seas, note
2.
[4] Further information about
the Commission’s activities relating to immigration detention is available
at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9.
[5] See http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3.
[6] See Shire of Leonora website
at http://www.leonora.wa.gov.au/about_us/leonora_township.html (viewed 4 January 2011).
[7] See http://www.humanrights.gov.au/human_rights/immigration/idc2011_leonora_photos.html.
[8] Figures provided by DIAC, current as of 24 November
2010.
[9] DIAC provided the
Commission with statistics current as of 24 November 2010, which list the
citizenship of the 202 people in immigration detention in Leonora as follows: 52
from Iran, 50 from Afghanistan, 47 from Sri Lanka, 12 from Iraq, 39 stateless
and 2 not yet known.
[10] See International Covenant on Civil and Political Rights (1966) (ICCPR), art
9(1), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 4 January 2011); Convention on the Rights of the Child (1989)
(CRC), art 37(b), at http://www2.ohchr.org/english/law/crc.htm (viewed 4 January 2011).
[11] See, for example United Nations Human Rights Committee, A v Australia,
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.2, at http://www.unhchr.ch/tbs/doc.nsf/
0/30c417539ddd944380256713005e80d3?Opendocument (viewed 4 January 2011);
United Nations Human Rights Committee, Van Alphen v The Netherlands,
Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990), para 5.8, at http://www.unhchr.ch/tbs/doc.nsf/0/a4269194de1b9228c1256ac700449405?Opendocument (viewed 4 January 2011); United Nations Human Rights Committee, Shafiq v
Australia, Communication No. 1324/2004, UN Doc CCPR/C/88/D/1324/2004 (2006),
para 7.2, at http://www.unhcr.org/refworld/country,,HRC,,BGD,,47975af921,0.html (viewed 4 January 2011); United Nations Human Rights Committee, Tillman v
Australia, Communication No. 1635/2007, UN Doc CCPR/C/98/D/1635/2007 (2010),
para 3.4, at http://www.unhcr.org/refworld/country,,UNHRC,,AUS,,4c19ea9d2,0.html (viewed 4 January 2011).
[12] See, for example United Nations Human Rights Committee, Tillman v
Australia, note 11, para 3.4; United Nations Human Rights Committee, Baban v Australia, Communication No. 1014/2001, UN Doc
CCPR/C/78/D/1014/2001 (2003), para 7.2, at http://www.unhcr.org/refworld/docid/404887ee3.html (viewed 4 January 2011); United Nations Human Rights Committee, D and E v
Australia, Communication No. 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006),
para 7.2, at
http://www.unhchr.ch/TBS/doc.nsf/0ac7e03e4fe8f2bdc125698a0053bf66/9dbcb136a858ebc5c12571cc00532f41?OpenDocument (viewed 4 January 2011); United Nations Human Rights Committee, Kwok Yin Fong
v Australia, Communication No. 1442/2005, UN Doc CCPR/C/97/D/1442/2005
(2009), para 9.3, at http://www.unhcr.org/refworld/country,,HRC,,CHN,,4b1d223d2,0.html (viewed 4 January 2011).
[13] See
further UNHCR, Revised Guidelines on Applicable Criteria and Standards
Relating to the Detention of Asylum Seekers (1999), guidelines 2, 3. At http://www.unhcr.org/3bd036a74.html (viewed 4 January 2011).
[14] See ICCPR, note 10, art 9(4); CRC, note 10, art
37(d).
[15] See, for example
United Nations Human Rights Committee, A v Australia, note 11, para 9.5.
[16] Department of Immigration
and Citizenship, Immigration Detention Statistics Summary (3 December
2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 13 January 2011).
[17] See C Evans, New Directions in Detention – Restoring Integrity to
Australia’s Immigration System (Speech delivered at the Centre for
International and Public Law Seminar, Australian National University, Canberra,
29 July 2008) (New Directions in Detention). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 10 January 2011).
[18] See New Directions in Detention, note 17.
[19] These figures are based on
statistics provided by DIAC, current as of 24 November 2010. They refer to the
overall time in immigration detention – including on Christmas Island, in
Leonora and in any other immigration detention facilities in
Australia.
[20] For further
discussion of the suspension, see Australian Human Rights Commission, 2010
Immigration detention on Christmas Island (2010) (2010 Christmas Island
report), section 8. At http://humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 4 January 2011).
[21] These figures are based on statistics provided by DIAC, current as of 24
November 2010. The total of 76 people included 34 from Afghanistan (17 adults
and 17 children) and 42 from Sri Lanka (27 adults and 15
children).
[22] Information
provided by DIAC, current as of 26 November
2010.
[23] See ICCPR, note 10,
art 9(1); CRC, note 10, art
37(b).
[24] Written communication
from DIAC to the Commission, 24 December
2010.
[25] Department of
Immigration and Citizenship, Immigration Detention Statistics Summary (3
December 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 13 January 2011).
[26] Children may be held in immigration detention in a range of immigration
detention facilities including Immigration Residential Housing, Immigration
Transit Accommodation and ‘alternative places of detention’. Further
information about the various places of detention is available on the
Commission’s website at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#5.
[27] See CRC, note 10, art
37(b). See further A last resort, note
2.
[28] See further A last
resort, note 2, sections 4.3.2, 6.6; UNHCR, Guidelines on Policies and
Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997),
guidelines 7.6, 7.7, at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b3360 (viewed 5 January 2011); UNHCR, Revised Guidelines on Applicable Criteria and
Standards Relating to the Detention of Asylum Seekers, note 13, guideline
6.
[29] These figures are based
on statistics provided by DIAC, current as of 24 November 2010.
[30] These figures are based on
statistics provided by DIAC, current as of 24 November 2010. They refer to the
children’s overall time in immigration detention – including on
Christmas Island, in Leonora and in any other immigration detention facilities
in Australia.
[31] A last resort,
note 2, executive summary, major finding
2.
[32] See 2010 Christmas Island
report, note 20, sections 11, 13.2; Australian Human Rights Commission, 2010
Immigration detention in Darwin (2010 Darwin report), section 7, at http://humanrights.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 5 January 2011).
[33] Minister for Immigration and Citizenship, Minister’s Residence
Determination Power Under S. 197AB and S. 197AD of the Migration Act 1958:
Guidelines (2009) (Residence Determination Guidelines), para
4.14.
[34] Under section 197AB of
the Migration Act 1958 (Cth), the Minister for Immigration has the power
to issue a Residence Determination permitting a person in immigration detention
to reside at a specified place instead of in an immigration detention facility.
This is known as Community
Detention.
[35] See International Covenant on Economic, Social and Cultural Rights (1966)
(ICESCR), art 12, at http://www2.ohchr.org/english/law/cescr.htm (viewed 6 January 2011); CRC, note 10, art
24.
[36] See Human Rights and
Equal Opportunity Commission, Immigration Detention Guidelines (2000),
section 13. At http://humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 6 January 2011).
[37] See
2010 Christmas Island report, note 20, section 19; 2010 Darwin report, note 32,
section 8.
[38] Department of
Immigration and Citizenship, Psychological Support Program for the Prevention
of Self-Harm in Immigration Detention (2009).
[39] See 2010 Christmas
Island report, note 20, sections 11, 13.2; 2010 Darwin report, note 32, sections
7, 8.
[40] Residence
Determination Guidelines, note 33, para
4.1.4.
[41] See Immigration
Detention Guidelines, note 36, section
7.2.
[42] CRC, note 10, arts 28,
31. See further A last resort, note 2, chapters 12, 13,
15.
[43] These figures are based
on statistics provided by DIAC, current as of 24 November 2010.
[44] For example, Serco records
provided to the Commission indicate that medical escorts to Kalgoorlie resulted
in the cancellation of scheduled crèche sessions in the Leonora
immigration detention facility at least once per week in each week of September
2010, and at least once per week in most weeks of October
2010.
[45] Serco provided the
Commission with copies of activities and excursion reports for the Leonora
immigration detention facility for the months of September, October and November
2010. Based on the Commission’s analysis of these reports, during November
2010 there were 52 excursions with 538 participants; during October 2010 there
were 26 excursions with 378 participants; and during September 2010 there were
28 excursions with 509 participants. It should be noted that these participants
are not unique individuals – some people would have participated in more
than one excursion each
month.
[46] Under UNHCR
guidelines, there should be a presumption against the detention of asylum
seekers–it should be the exception rather than the norm. Detention should
only be resorted to if there is evidence to suggest that other alternatives (for
example, reporting requirements) will not be effective in the individual case.
The permissible exceptions to the general rule that detention should normally be
avoided must be prescribed by law. The detention of asylum seekers may only be
resorted to if necessary to verify identity; to determine the elements on which
the claim to refugee status or asylum is based; to deal with cases where
refugees or asylum seekers have destroyed their travel and/or identity documents
or have used fraudulent documents in order to mislead the authorities of the
State in which they intend to claim asylum; or to protect national security or
public order. In assessing whether detention is necessary, considerations should
include whether it is reasonable and whether it is proportional to the
objectives to be achieved. See UNHCR, Revised Guidelines on Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers, note 13,
guidelines 2, 3; UNHCR Executive Committee, Conclusion No. 44 (XXXVII) -
Detention of Refugees and Asylum Seekers (1986), at http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 4 January 2011).
[47] See, for example United Nations Human Rights Committee, A v Australia,
note 11, para 9.5.
[48] See A
last resort, note 2, section 17.3.