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Commission Website: National Inquiry into Children in Immigration Detention

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Submission to National Inquiry

into Children in Immigration Detention from

the Justice for Asylum Seekers

(JAS) Alliance Detention Working Group.


Justice for Asylum

Seekers (JAS) is a non-incorporated alliance of community organisations

founded in 1999 to work for just treatment of people seeking asylum. It

is based in Victoria, meets monthly and has three working groups: 1. Campaign,

2. Detention reform and 3. Lobbying.

Afghan Support Group,

Amnesty International (Victoria), Anglican Church, Asylum Seeker Project

of Hotham Mission, Austcare, Australian Iraqi Association, Baptist Union,

Catholic Commission for Justice Development and Peace Melbourne, Caritas

Australia, Churches of Christ, Council of Vietnamese Supporting Organisations

in Australia, Ethnic Communities Council of Victoria, Ecumenical Migration

Centre of the Brotherhood of St Laurence, Indo Chinese Refugee Association,

Jesuit Refugee Service, Liberty Victoria, Melbourne Catholic Migrant and

Refugee Office, National Council of Churches in Australia ( Victoria),

National League for Democracy (Burma – Liberated Area), Oxfam Community

Aid Abroad, Refugee Council of Australia, Refugee Immigration and Legal

Centre, Springvale Community Aid And Advice Bureau, St Vincent De Paul.


1.

Introduction

2. Background

3. The Reception and Transitional Processing

System

4. Management and support structure

5. Release issues

6. Outcomes under a reformed system

7. Conclusion


1. Introduction

JAS Detention

Reform Working Group

Justice for Asylum

Seekers (JAS) is an alliance of over twenty five Victorian based community

organisations founded in Melbourne in 1999 to address negative perceptions

of refugees claiming asylum. JAS is concerned with achieving just treatment

of people claiming asylum in Australia. JAS is based in Victoria, meets

monthly and has three working groups: 1. Campaign, 2. Detention Reform

and 3. Lobbying. JAS is not incorporated but individual members have tax

deductible status.

This paper addresses

the second term of reference of the HREOC inquiry into children in detention,

namely what alternatives to detention should be developed or implemented.

The paper examines the Reception and Transitional Processing (RTP) System

as an alternative approach to asylum seekers. It provides a background

to the problems to be addressed and standards to be recognised in Australia’s

immigration system and outlines the processing stages and the various

management systems required within detention. The paper also shows how

the system could extend into the community. The matrices in the Appendices

on roles and responsibilities further assist with the picture of how the

system will work. Finally, the various papers in the appendices address

particular issues and case studies in more detail.

JAS has focused on

achieving recognition of the human rights of all refugees and people seeking

asylum in Australia and has decided to focus on reform of the immigration

detention system as an achievable and important goal. Reforming the immigration

detention system requires in the first instance policy and practice changes

followed by legislative change. It is assessed to be an achievable target

in the medium term.

Nevertheless any

reform process has to acknowledge some wider political and social attitudes

and realities, in particular:

  • Focus group research

    has found that community concerns about people seeking asylum are driven

    by an individual sense of anxiety about the future, a feeling of a lack

    of control about many aspect of social and economic life, which form

    the basis of attitudes which are not necessarily logical. [1]

  • There is a community

    view that people seeking asylum are cheating the system and are treated

    accordingly.

  • Politicians are

    unlikely to introduce significant reform whilst there is strong community

    concern about asylum seeker motives, character and legitimacy.

  • Human rights are

    notionally recognised in Australia via treaties but not in domestic

    law, policy or practice.

  • The detention

    system is currently used as a deterrent, which inherently conflicts

    with complying with human rights principles.

  • There is a lack

    of understanding of alternative models and likely resistance to elements

    such as community release.

Despite this wider

context to detention, JAS believes that it is possible for the Federal

Government to undertake the necessary changes in policy and practice which

would ensure that human rights are respected when dealing with people

claiming asylum. Moreover, changes in policy and practice would entail

a shift in the nature of public statements about people who claim asylum

from negative labelling to explanation of their rights under Australian

law and explanation about the conditions from which they flee. Such a

shift in public statements would help shift public sentiment from one

of hostility and dislike towards people seeking asylum in some cases,

to one of understanding and sympathy. JAS believes that Government and

public concerns about border security are legitimate but do not necessitate

abandoning a sense of humanity or alarming the public when speaking about

and implementing border security.

In the past, Australia

has processed people coming as refugees in ways which respected human

rights. The Vietnamese refugees who arrived by boat in the 1970s and 1980s

were treated hospitably and not interned despite similar alarm in some

parts of the community as now. The handling of the Kosovars in ‘safe

havens’ in various parts of Australia is a more recent humane experience.

Similarly Australia has a great deal of experience with managing people

in the criminal system and allowing them to live in the community on parole

conditions.

Other countries use

alternative models and approaches such as a mixture of detention and community

release. Australia can learn from these, and reform its system accordingly.

The Reception Transition and Processing (RTP) System is an integral part

of the JAS strategy of reform of the current system and aims to respect

the human rights of people seeking asylum while acknowledging the security

concerns of the Government and wider community.

Key Features of

the RTP System:

The impetus for JAS

proposing the RTP System has been the need to address difficulties and

inconsistencies in current detention and community approaches to asylum

seekers. The aim of the paper is to present a comprehensive detention/reception

model, which includes various initiatives that could be independently

and progressively implemented.

The RTP System draws

upon ideas and systems from a number of alternative models, including

the Refugee Council of Australia and HREOC’s Alternative Detention

Model and the Parole/Home Detention System, as well as recent experience

in managing asylum seekers in Sweden, UK, USA and New Zealand. Recommendations

are also drawn from Amnesty, HREOC, Conference of Leaders of Religious

Institutes (NSW), Refugee Immigration Legal Centre and many other organizations.

Features

Features of the RTP

System include:

1. Detention should

only be used for a limited time, in most cases for Identity, Health and

Security (IHS) checks upon arrival; prior to a person being returned to

their country of origin or another country, or if a claim is unsuccessful

and if supervision in the community is inadequate to the high risk of

the person absconding.

2. Introduction of a monitored release regime based on a revised risk

assessment – made into community hostels/cluster accommodation.

3. Those deemed high security risk to remain in detention, but with set

periods of judicial or administrative review.

4. Ensuring children and their primary carers are released from detention

as soon as possible.

5. Reception of all unaccompanied minors, families, single women, vulnerable

people into community care with Government support and compliance requirements.

6. Reception of all people assessed to be psychologically vulnerable into

community care by specialised services with Government support and compliance

requirements

7. Creation of a case worker system whereby an independent service provider

(e.g. Australian Red Cross) provides information, referral and welfare

support to services to people claiming asylum, from the time of their

arrival to the point of repatriation or settlement in the community.

8. Creation of a Representative Assessment Panel to oversee conditions

of detention and community release. The Panel would make decisions on

risk assessments, security compliance and periodically review length of

detention. The Panel would act as an independent body ensuring transparency

and accountability of service providers entrusted with the humane manner

of treating people.

9. The introduction of a specialist service provider such as International

Organisation of Migration to manage return of persons whose claim has

been unsuccessful.

10. The creation of a special visa class for long term detainees who can’t

be returned to their country of origin, which would allow them to live

in the community until such time as they can be returned.

2. Background

What is the core

problem we are to address?

Australia’s

current system of detaining asylum seekers for processing denies people

their human rights. [2] Australia’s detention system

breaches several international human rights treaties as monitored in Australia

under the Human Rights and Equal Opportunity Act 1986. Additionally, Australia

is disregarding, in many instances, the principles contained in 1999 UNHCR

Guidelines on Detention of People Seeking Asylum – standards that

are not legally binding but recommend best practice. The breaches are

associated with the policy of mandatory detention:

1. Mandatory detention

  • The policy of

    mandatory detention of all ‘unauthorised arrivals’ by boat

    breaches international human rights standards agreed to by Australia

    under Article 9 of the International Covenant on Civil and Political

    Rights (Australia signed 1975), which permits detention only where necessary

    and which requires that the individual be able to challenge the lawfulness

    of his or her detention in the courts or be administrative means.[3]

  • UNHCR Guidelines

    relating to Detention of People seeking asylum state that Detention

    of People seeking asylum is ‘inherently undesirable’, and

    detention of people seeking asylum who come ‘directly in an irregular

    manner, such as unlawful non –citizens should apply only pending

    determination of their status and only be imposed… for a minimal

    period’.

2. Prolonged Detention

  • The policy of

    mandatory detention leads to prolonged detention in many cases. Article

    9 of the International Covenant on Civil and Political Rights (ICCPR),

    arguing, ‘Detention must be subject to judicial or administrative

    review to ensure that it continues to be necessary in the circumstances.’

  • The Australian

    system does not provide for such review.

  • When prolonged

    detention occurs, conditions for people can become unacceptable. Provisions

    for education, health, welfare, recreation, provision for religious

    and cultural observances, which might be acceptable in the short term,

    become inadequate and unacceptable in the long term.[4]

  • In Australia

    in 1999-2000, more than 2,500 people seeking asylum were held more than

    6 months in mandatory detention.

3. Children in

Detention

  • The Convention

    on the Rights of the Child – abide by the best interests of

    the child and use detention as a measure of last resort; (signed by

    Hawke government 1991)

  • The International

    Convention on Civil and Political Rights – refrain from arbitrarily

    detaining children (signed by Fraser Government 1975)

  • Convention Relating

    to the Status of Refugees – refrain from punishing children

    with detention by virtue of the illegal nature of their arrival (signed

    by Menzies Government 1954)

  • UNHCR Revised

    Guidelines on Applicable Criteria relating to the Detention of Asylum

    Seekers – respect the provision that states that children should

    not be detained.

  • UNHCR Guidelines

    on Policies and Procedures in dealing with Unaccompanied Children Seeking

    Asylum – which recommends that children who are unaccompanied

    should not be detained.

  • The United Nations

    Standard Minimum rules for the Administration of Juvenile Justice (The

    Beijing Rules) which recommends ”alternatives to institutionalisation

    to the maximum extent possible, bearing in mind the need to respond

    to the specific requirements of the young.”

  • 1147 minors were

    held in detention in Australia in 2000. Some have been detained for

    over a year.

4. Access to Mental

Health Services

  • The UN Human

    Rights Committee has developed ‘Standard Minimum Rules for the

    Treatment of Prisoners’(1957) relating to Article 10 .1 of the

    International Covenant of Civil and Political Rights (ICCPR), which

    states that the ‘fundamental and universally applicable’ requirement

    of international law is that people in detention must be treated with

    ‘humanity and with respect for the inherent dignity of the human

    person.’ The Standard Minimum Rule 22 states that psychiatric care

    should be a standard service available to detainees.

  • However, in 1998,

    HREOC found that ‘appropriate mental health care services are

    not readily available to detainees’and that ‘in general there

    is an inadequate recognition of the common experience of detainees of

    traumatic events and even torture.’ [5]

  • Between March

    1st and October 31st, 2001there were 264 reports of people self-harming

    in Australian immigration detention centres. (Information provided by

    DIMIA under FOI, 24/4/02)

The UNHCR Guidelines

on Detention of Asylum Seekers

In August 2000, the

UN Economic and Social Council’s Sub-commission on the promotion

and protection of human rights, encouraged states, to ‘adopt alternatives

to detention’ of asylum seekers.[6] The UN’s

views were informed by UNHCR’s Guidelines on Applicable Criteria

and Standards relating to Detention of Asylum Seekers. The UNHCR Guidelines

argue that the detention of asylum seekers is ‘Inherently undesirable.’

This is even more so in the case of vulnerable groups such as single women,

children, unaccompanied minors and those with special medical and psychological

needs.

The Guidelines assert

a ‘general principle’ that asylum seekers should not be detained.

Under Article 14 of the Universal Declaration of Human Rights, the right

to seek and enjoy asylum is recognised as a basic human right. In exercising

this right asylum seekers are often forced to arrive at or enter a territory

illegally. The Guidelines argue that the circumstances of asylum seekers

differs fundamentally from that of ordinary immigrants in that they are

not able to comply with legal formalities for entry. This fact, coupled

with the fact that many asylum seekers have suffered trauma, ‘should

be taken into account in deterring any restriction on freedom of movement

based on illegal entry or presence.’

The UNHCR guidelines

reinforce Article 9 of the ICCPR, arguing that detention ‘must be

subject to judicial or administrative review to ensure that it continues

to be necessary in the circumstances.’ The Guidelines argue that

detention should only be resorted to in case of necessity, and therefore

the detention of asylum seekers who come ‘directly’ in an irregular

manner (such as unlawful non –citizens) should not be ‘automatic

nor should it be unduly prolonged’. The Guidelines suggest that this

should apply to asylum seekers pending determination of their status.

The Guidelines argue

that there should be a ‘presumption against detention’ particularly

where alternatives are possible:

  • monitoring mechanisms

    – such as reporting obligations; or

  • guarantor requirements.

The guidelines recommend

that detention should only take place after a full consideration of all

possible alternatives. In assessing whether detention of asylum seekers

is necessary, the Guidelines state that account should be taken of whether

it is reasonable to do so and whether is ‘proportional to the objectives

to be achieved’. It should only be imposed in a non-discriminatory

manner for a minimal period.

The Guidelines are

clear that detention should only be resorted to in three instances:

1. For preliminary

interviews and identifying the basis of an asylum claim. It is not to

be used or extended while determination of the claim is occurring.

2. When it has been established that an asylum seeker has had an intention

to mislead or refusal to cooperate. Travelling with fraudulent documents

or without documents are not sufficient grounds in themselves, particularly

when it may not be possible to obtain genuine documents in their country

of origin.

3. To protect national security and public order in cases where there

is evidence that the asylum seeker has criminal connections or record.

Cost of Detention

A major challenge

is the need to bridge the enormous differences between current approaches

to asylum seekers in detention and asylum seekers in the community. A

dichotomy exists between the large amount spent on our current detention

system as opposed to the comparatively minimal amounts spent by Government

on people seeking asylum who remain living in the community. Similarly

the often inadequate provisions and services in detention as opposed to

the lack of provisions and services for people seeking asylum in the community.

An indicative breakdown

of 1999-2000 costs to the public of detaining people can be seen below:

Detention

Centre Costs and Detainee Days 1999-2000 [7]

Immigration

Detention Centres [8]

Total

Expenses $

Total

detainee days

Cost

per person, per day

Villawood
$9,141,760
113,528
$80.52
Maribyrnong
$4,605,915
27,309
$168.66
Perth
$2,850,248
11,258
$109.13
Port

Headland

$18.531,842
268,147
$69.11
Curtain
$28,205,096
260,168
$108.41
Woomera
$31,929,333
248,800
$128.33
Central

Office direct costs

$1,386,507
TOTAL
$96,650,701
929,210
$104.01

(Total average)

In 2000 – 2001,

The cost for detention was approximately $104 million, while he average

cost of keeping a person in a mainland detention centre has increased

from the table above to $120 per day. Costs vary from centre to centre

as they include expenses such as those for employees, travel, motor vehicles,

telephones, interpreting costs, depreciation and other administrative

costs.

Cost of Supporting

Asylum Seekers in the Community

Many asylum claimants

living in the community are eligible, for a period of time, for the Government

funded Asylum Seeker Assistance Scheme (ASAS) which is managed by the

Australian Red Cross. In 2000-1, 2,691 people who were claiming asylum

received ASAS payments averaging at 89 per cent of the Centrelink special

benefit. A single male over 21 is paid approximately $400 per fortnight

on the scheme, while a couple without dependants are paid approximately

$600. Administration costs for the scheme run at an average of 12 per

cent and it cost the public purse $11,185,000 in 2001, up from $9,950,000

in 1999-2000. People eligible for this payment are usually in the primary

stage of having their claim processed, although some in hardship may continue

to receive it when appealing to the Refugee Review Tribunal.

Other groups of people

who are appealing decisions at the Refugee Review Tribunal, or who are

released from detention on psychiatric or other grounds, are mostly ineligible

for ASAS and receive no assistance from the Government. This ineligibility

includes Medicare and work rights. Church and welfare agencies around

the country support these people. Programs like the Uniting Church’s

Hotham Asylum Seeker Project in Melbourne provide assistance for food

and transport and referral for church housing and pro bono medical treatment.

In 2001, the project assisted 93 clients in a program that costs $200,000

annually. This averages out at $5.70 per day per person. Housing and utilities

are not factored in as churches usually absorb these. Nevertheless, the

costs are relatively cheap due to economies of scale in shelters or group

housing. Community release or welfare agency supported programs is cost

- effective. Community release is much cheaper than mandatory detention.

3. The Reception

and Transitional Processing System

The Reception and

Transitional Processing Systemhas its roots in international approaches

to asylum seekers such as can be seen in Sweden and New Zealand and alternatives

put forward by the Human Rights and Equal `Opportunity Commission, the

Refugee Council of Australia and other systems. [9] The

main starting points to the RTP System are:

  • Detention should

    only be used for Identity, Health and Security checks and possibly for

    return and only if supervision is deemed inadequate

  • Children and

    their primary carers should be released from detention as soon as possible.

Processing Stages

Under the RTP System,

depending on individual assessment and circumstances, asylum seekers may

move from one processing stage to another. These processing stages are:

1) Initial Detention

and Reception

2) On-going Detention

3) Structured Release Program

Asylum seekers in

initial or on-going detention fall into one of 3 categories while awaiting

a final decision on their refugee claim. Those categories are:

a) Under going a

Psycho-Social Risk Assessment (including initial health, security and

health checks);

b) Under investigation;

c) and for realising return for individuals with a high security risk

or a risk of absconding.

Realistic time limits should be placed on each category as occurs in other

countries. [10]

1. Initial Detention

and Reception

This involves closed

detention for all unauthorised on-shore arrivals for the period they are

awaiting health, identity and security checks and undergoing a Psycho-Social

Risk Assessment. This includes:

  • Health checks

    for all asylum seekers both in detention and in the community conducted

    in the first week of arrival.

  • If no identification

    or documentation is available an affidavit may be adequate

  • Certain individuals

    like unaccompanied minors and pregnant single women should receive immediate

    security clearance.

  • An assessment

    of the risk to abscond.

2. On-going detention

Closed detention

for those assessed as a security risk, and to realise return for those

at risk of absconding. The role of the case worker is pivotal here in

preparing clients for all possible immigration outcomes, risk analysis

and in reducing anxiety and incidents. (see Case Management).

A number of recommendations

are suggested for the effective and humane management of the closed centre

processing stages:

  • Increasing transparency

    in management and operation, with centres to be run more like closed

    institutions than prisons.

  • Security and

    running of the centres to be placed back in the hands of the public

    sector.

  • Ensuring all

    staff are trained to work with asylum seekers and show appropriate cultural

    and gender sensitivity and respect to all detainees.

  • Ensuring all

    asylum seekers are treated with dignity and respect.

  • Dividing detention

    into 3 categories: initial health, security and health checks; investigation;

    and for realising return for individuals at high risk of absconding.

  • Implementing

    a case worker system aimed at providing information, referral and preparing

    detainees for all immigration outcomes

  • Increasing access

    for NGOs, clergy, researchers, counsellors and the media.

  • Ensuring detainees

    have access to their case data under Freedom of Information, plus access

    to internet, NGOs and the option to speak to the media.

  • Ensuring legal

    counsel and the right to appeal is available.

  • Ensuring no children

    are held in detention for extended periods and removing families as

    soon as possible.

Example

– Reception in Closed Centre

Shabnam

and his wife, Gity and young son, Hussein are from a minority group

in Iran. One day after his brother was taken by the police, Shabnam

became afraid for his life and fled with his family. He escaped through

the mountains into Turkey where he found some people who said they could

take him to safety. After flying and waiting in Indonesia, they boarded

a boat bound for Australia. Hussein is constantly frightened and clings

to his father.Also on the same boat was Indika, a Sri Lankan man who

saw his father and cousin shot and killed. His mother hid him for some

days and gave him all the family’s money which he gave to a man

who said he could take him to a safe country.

Akbar

is a 26 year old Palestinian who has been on the move for the past 8

months. Since being on the boat, Akbar has been also looking after Mohmed,

a 14 year old unaccompanied boy from Afghanistan. Mohmed does not talk

about what led him to be here by himself, except to say that he is from

the minority Hazara group.

Huddling

together on the boat is Fatima and her 2 children. The youngest, Amira,

is 5 years old. Fatima fled Iraq 7 months ago, taking money from all

her relatives and hiding with her children in Turkey until she could

make the journey to find her husband. She was exhausted and scared of

the journey before her. Everyone looked with pity to the children, who

seemed lost in their unfamiliar environment.

On

arrival everyone was taken directly to a closed reception centre. There

they each spoke to a case worker who spent time briefing them on their

situation, explained the determination process and why they could not

go straight into the community. The case worker said they must undergo

identity, health and security checks afterwhich they may either remain

in a closed centre or be released into the community under various programs.

3. Structured

Release Program

A reception regime

for all remaining people seeking asylum, this includes:

  • Identity, Health

    and Security (IHS) cleared

  • Psycho-Social

    Risk Assessment cleared

  • Families, unaccompanied

    youths and females

  • Those at risk

    psychologically or medically

Structured Release

Program on bridging visas would be in the form of either: Open Hostel,

Community Agency Release, Family Release, or Release on Own Undertaking

[11]

Open Hostel:

This involves a monitored

release regime for people seeking asylum who are not deemed a high security

risk but who may require further investigation or regular supervision.

They would be accommodated and monitored in a low security environment

with an adequate level of compliance. Examples of such lower security

systems include:

  • Kosovan ‘Safe

    Haven’ style accommodation in hostels with freedom of movement

    and access to the wider community.

  • The existing

    parole models ‘Parole and Home Detention/Transitional Housing’

    as suggested by the Conference of Leaders of Religious Institutes (NSW)

    [12]

  • The UK’s

    curfew system.

  • RCOA’s Open

    Detention Bridging Visa (Stage 2, E1) [13]

Example

– On-going Detention

After

spending one month in the closed centre the Assessment Panel made a

decision that Indika could move into the monitored Open Hostel while

awaiting a decision on his refugee claim. Within 8 months of being in

the Hostel both his primary and review decision had been refused. Indika

put in a request to the Minister for intervention on humanitarian grounds.

Throughout this time Indika had been seeing his case worker once a week

where they had been discussing the possibility of him having to return

to Sri Lanka. He had been quite opposed to this and seemed sure the

minister would intervene.

Upon

hearing of the Minister’s refusal to intervene, the Assessment

Panel decided that there may be a ‘significant risk’ that

he may abscond and Indika was returned to the closed centre. On-shore

Protection had already made inquiries about return options for Indika

so as to reduce the amount of time he would remain in the centre. Indika

was at first anxious at being put back in detention, but he knows he

is constantly kept informed and feels he has been treated fairly throughout

the process. He knows that detention is reviewable and that he can make

complaints to the Assessment Board if there are any problems.

The Refugee Council

of Australia and HREOC outlined in the Alternative Detention Model various

forms of community release [14]:

Community Agency

Release:

The elements of this

bridging visa are as follows:

  • (i) The holder

    must reside at a designated address nominated by a recognised community

    organisation. Any change of address must be notified to DIMIA within

    48 hours.

  • (ii) The holder

    must report at regular intervals to DIMIA, to be specified by the case

    officer.

  • (iii) If called

    upon to do so, the holder shall within 24 hours present to an officer

    of DIMIA.

  • (iv) The holder

    will be required to sign an undertaking in writing that he or she shall

    comply with the conditions of the visa and, in the event that a condition

    of this visa is breached, may be returned to detention.

  • (v) Eligibility

    for Permission to Work will be available in the terms contained in Bridging

    Visa E.

  • (vi) Eligibility

    for Asylum Seekers’ Assistance Scheme shall be in the terms currently

    available to other asylum seekers.

Family Release:

The elements of

this bridging visa are as follows:

  • (i) The holder

    must reside at a designated address with a nominated close family member.

    Any change of address must be notified to DIMIA within 48 hours.

  • (ii) The holder

    must report at regular intervals to DIMIA, to be specified by the case

    officer.

  • (iii) The holder

    or the nominated close family member may be required to pay a bond to

    DIMIA or sign a recognisance with DIMIA.

  • (iv) If called

    upon to do so, the holder shall within 24 hours present to an officer

    of DIMIA.

  • (v) The holder

    will be required to sign an undertaking in writing that he or she shall

    comply with the conditions of the visa and, in the event that a condition

    of this visa is breached, may be returned to detention.

  • (vi) Eligibility

    for Permission to Work will be available in the terms contained in Bridging

    Visa E.

  • (vii) Eligibility

    for Asylum Seekers’ Assistance Scheme shall be in the terms currently

    available to other asylum seekers.

Example

– Open Hostel

Akbar was found not to be a refugee. It was also found at that time

that his country of origin refused to take him back. He was very shocked

and upset at this decision. Akbar became anxious that he would remain

indefinitely in detention. Akbar did however clear all health, security

and identity checks and was compliant while in the closed centre. A

risk assessment was completed after some time and the Assessment Panel

made a decision that Akbar could move into an Open Hostel. Akbar leaves

the hostel every day to go to English classes and works in the afternoon

at a friend’s shop. He must be back to Hostel by 7pm and he must

meet his case worker once a week who has been exploring with him the

possibility that he may need to go back if a repatriation agreement

is made. He is nervous and anxious about this but he knows he must comply

with all decisions made on his case. Once he almost missed the curfew

but managed to call the Compliance Officer to let him know. He doesn’t

want to be put back in a closed centre.

Example

– Community Agency Release

Mohmed

was asked many questions in the first week he was in the centre. His

case worker said it was because they wanted to quickly release him into

the community. His identity, health and security checks came the next

week and his case worker introduced him to a man who runs a house in

the community for unaccompanied minors like himself. Because Mohmed

has no friends or relatives in Australia he will be able to stay there

until a decision is made and attend the local school. He was also introduced

to a man who runs a Hazara support group. Mohmed will have a new case

worker when he moves who he must visit every 2 weeks.

Release on Own

Undertaking:

The elements of this

bridging visa are as follows:

  • (i) The holder

    must reside at a designated address. Any change of address must be notified

    to DIMIA within 48 hours.

  • (ii) The holder

    must report at regular intervals to DIMIA, to be specified by the case

    officer.

  • (iii) If called

    upon to do so, the holder shall within 24 hours present to an officer

    of DIMIA.

  • (iv) The holder

    will be required to sign an undertaking in writing that he or she shall

    comply with the conditions of the visa and, in the event that a condition

    of this visa is breached, may be returned to detention.

  • (v) Eligibility

    for Permission to Work will be available in the terms contained in Bridging

    Visa E.

  • (vi) Eligibility

    for Asylum Seekers’ Assistance Scheme shall be in the terms currently

    available to other asylum seekers.

Example

– Release on own Undertaking:

After

a week in the closed centre Shabnam noticed his son, Hussein, was very

withdrawn and refusing food. His case worker had been informed by DIMIA’s

On-Shore Protection that the IHS checks may be delayed due to difficulty

in getting enough information. A recommendation was given to the Assessment

Panel

that the family be released into the monitored Open Hostel while awaiting

the final assessment. The recommendation was approved and the case worker

arranged for their transferal that week. Hussein would go with his father

to see a trauma counsellor once a week.

Soon

after, the family met their case worker who informed them that the risk

assessment had been completed and a decision had been made by the Assessment

Panel for their release into the community. Their case worker made arrangements

for the family to move into transitional housing and connected them

with a support volunteer to help them get established and orientate

them in the local area. Hussein slowly improved and began attending

the local school. Gity attends sewing classes at the local drop-in centre

for asylum seekers and Shabnam has been studying english at the local

neighbourhood centre and hopes to find a job soon. The father must report

3 times per week to Compliance and once a week to his case worker. The

family know they need to comply with the final immigration decision

or they may be returned to the open hostel.

Example

– Family Release

Fatima

and her two children were quickly identity, health and security cleared.

Fatima told her case

worker that she thought her husband may be in Australia. After making

checks it was discovered the husband was living in Brisbane on a Temporary

Protection Visa. The case worker ensured arrangements were made for

Fatima and the children to be able to live with him. After 4 years apart

the family was reunited. The family continue to meet with their case

worker for living assistance, ongoing assessment and to find

out about their case.

Structured

Release Program

Responsibility Government Case

Worker

Support

Services

Community/Volunteer
Services

on release

1.

On-shore protection/Compliance Risk Assessment

2. DIMIA issuing

bridging visa

3. Ongoing

assessment subject to Assessment Panel decision

1.

Preparing client for release

2. Updating

Immigration Case Officer and Compliance

Support

services notified

Orientation

upon arrival

Housing Federal

and State funding and state to churches and community housing services

Needs

assessment and referral:

1. community

and church housing

2. hostels

3. relative/friends

4. private

rental

1.

Church and community housing providers for families and unaccompanied

minors

2. Open hostel

and cluster housing for single adults

Ongoing

support in searching and setting up home.

Health Federal

and State funded access to health care: Refugee Health Team (RHT)

or mainstream services

Needs

assessment and referral

RHT-

Nurse/doctor/dental/CAT

psych team and counselling and referral to specialists

 
Living

assistance

Federal

funding for living allowance

Issues

Living Allowance (ASAS) disbursement on a monthly basis - implicit

compliance requirement

Community

and church agencies: Management and co-ordination of volunteers

Support

with budgeting and material aid.

Work Right

to work. DIMIA issuing work rights

Referral

to job search agencies

Job

search agencies

 
Education/language

1.

State funding for education of all minors; Asylum Youth Education

Co-ordinator in each State Education Departments

2. Federal

funding to AMES for volunteers co-ordinator in each State.

Referral

to schools in liaison with Asylum Youth Education Co-ordinator in

State Education Department.

Language

education AMES has volunteers co-ordinators for asylum seeker tuition

Language

tuition

Information,

Referral and Legal

DIMIA

Information about service providers in appropriate languages and information

for volunteers on relevant services

1.

Advice and information

2. Needs assessment

and referral to volunteers and agencies

3. Referral

to IAAAS legal

Church/community

service providers; ethnic community; other services eg. neighbourhood

houses, libraries, community legal services and migration agents

Assistance

and support

Recreation DIMIA

funding for volunteer co-ordinators in each State and Territory

Referral

to Volunteer Coordinators

Recreation

Programs throught Community organisations based on volunteer support

Volunteer

support

4. Management

and support structure – roles and responsibilities

Under the RTP System

asylum seekers are managed and supported within the various processing

stages by 5 main parties, each with specific roles and responsibilities:

1) DIMIA/Government

Departments

2) Security

3) Community and Welfare Agencies/Volunteers

4) Case Management

5) Representative Assessment Panel.

1. DIMIA

The Role of DIMIA includes centre contract management; On-shore Protection/Compliance

coordination of Pschosocial Risk Assessments, including IHS clearance

(see page 25); issuing bridging visas; initial and final determination;

immigration case officer/compliance officer roles; relationship between

security, case management and community-based service providers. Other

agencies and departments involved include: ASIO, Federal Police and State-based

health, protection and education services.

2. Security

The role of the contracted or Government security provider includes

being a service provider operating under publicly accountable standards;

security, monitoring; daily running of centres; reporting to the proposed

Assessment Panel.

3. Community and

Welfare Agencies/Volunteers

The role of these agencies includes housing, support, orientation,

material aid, and recreation.

Volunteer role would

begin in open detention through to community release, Possibly as a combination

of the old Community Resettlement Support Scheme and Hotham Mission’s

LinkUp volunteer program [the latter is described in the attachments].

4. Case Management

Case management was a key recommendation of the 1998 HREOC report:

A case manager should be appointed to each detainee with responsibility

for overall management of detainee’s dealing with the Department,

including in seeking prompt resolution of requests, inquiries and complaints.”

Recommendation 15.4 (HREOC 1998- Those Who’ve Come Across The Seas)

The case manager

is a contracted service provider responsible for the detainees’ wellbeing

in regard to management of relations with DIMIA, Security Providers, Compliance

and various support services.

The case manager

will assign case workers to work with all asylum seekers. A suggested

ratio is (1:30). The case workers will promptly handle inquiries and complaints

and provide advice and information to the asylum seekers. Every asylum

seeker has a case worker, whose role it is to:

  • inform of rights

    and processes

  • needs assessments
  • referral
  • preparation for

    all immigration outcomes.

Their role varies

according to the processing stage. The role is also to oversee the asylum

seeker from arrival to outcome, settlement or return. The case worker

plays a pivotal role in bridging the gap in individual case management

between security and department, and between detention and community-based

asylum seekers. From the outset, the provision of information by the case

manager to the asylum seeker about the claim process, and an individual’s

progress and likely outcomes, will allow individuals a degree of control

in making decisions about their future and over their lives. This has

been shown to achieve more effective and humane returns and also to reduce

anxiety while in detention and assist with the transition to living in

the community.

(See Summary of the

Swedish Model) The expedient referral to services such as mental health

assessment will also lessen the likelihood of psychological damage being

caused by detention. Other outcomes of this case management will be to:

  • enable bureaucratic

    decision-makers to make informed decisions as to whether a person is

    required to remain in detention or whether they are able to be released

    into the community;

  • track asylum

    seekers and follow people through the stages of detention into the community;

  • ensure continuity

    of care and ongoing social and welfare support; and

  • improve outcomes

    on return and settlement, as well as addressing difficult issues and

    incidents commonly occurring in immigration detention centres.

Furthermore in regards

to community release, the case worker’s role is vital in referral,

ongoing assessment and coordination, with implicit compliance requirement

in administrating living assistance on a monthly basis.

5) Representative

Assessment Panel

A representative

panel comprising representatives from the DIMIA/Government, health, judiciary

and community, will oversee and monitor client and internal and community

release conditions and complaints. The independently chosen panel will

meet regularly to make decisions based on risk assessments and security

and administrative issues. The workload demands flexibility and prompt

response, with a possible magistrate’s level of judicial overview

for urgent matters. The panel should ideally have the power to commission

reports. Independent watchdogs, such as HREOC and the Ombudsman, will

continue their external observation of the centres. The role of the Assessment

Panel includes:

  • Decision-making

    on compliance and risk assessment;

  • Reviewing client

    categories and working between DIMIA, security, case worker and asylum

    seeker;

  • Ensuring accountability,

    responsibility and overseeing duty of care requirements, such as health

    care, case management and security;

  • Ensuring adequate

    training of staff and appropriateness of services in issues of cross-culture,

    gender, child protection, religion and trauma.

The determination

process also impacts on all interaction and work with asylum seekers.

The Case Manager and the Assessment Panel would therefore also be required

to ensure adequate legal representation is in place and to assist the

flow of information between the asylum seeker and:

  • DIMIA Onshore

    Protection/Minister’s Office

  • Refugee Review

    Tribunal

  • Federal/High

    Courts

  • Migration Agents/Lawyers/Barristers.
TRANSITIONAL

PROCESSING AND RECEPTION MODEL - ROLES AND STAGES

Processing

Stages

People

Seeking Asylum

Case

Management

Panel DIMIA IDC

Service Provider

1.

Intitial Detention and Reception

  • closed centre

All

unauthorised arrivals

Checks:

  • identity
  • health
  • security
  • Pshycho-social

    risk assessment

Client

Services

(Contracted

service provider)

Case worker/Casework

Coordinator:

  • client assignment/30-50

    per case worker

  • informing

    of rights and processes

  • referral

    to additional management

Additional

management:

  • health-Refugee

    Health Team; including: nurse, GP, dental, Crisis Assessment Team,

    psychiatric team, counselling, recreation/education/volunteers

Representative

Assessment Panel; overseeing:

  • implementation

    of IDC regulations and centre services

  • mediating

    decision-making on compliance and casework assessment

  • arbitrating

    client behaviour and security

  • review of

    client categories and disciplinary procedures

  • monitoring

    internal conditions; commplaints and grievances

Centre

Contact Management

  • On shore

    Protection/Complaince

    -risk assessment

  • initial

    application processing

  • Immigration

    Case Officer (ICO) assigned for asylum claims and IHS checks

  • compliance

    officer assigned for high risk cases

Centre

Services

(contracted

service provider)

  • security

    monitoring

  • access/visitation
  • general

    service supervision

  • provision

    of facilities and services: mess; recreational areas, accommodation,

    cleaning/hygiene, food, clothing, toiletries etc

 

2.

On-going

detention

  • closed centre

For

certain categories:

  • high security

    risk

  • absconding

    risk prior to return

Case

worker:

  • informing

    of decisions

  • preparation

    for all immigration outcomes, including motivational counselling

  • risk prevention

    and management

  • referral

    to additional management

As

above

  • monitor

    return processes

  • periodic

    review

  • centre contract

    management and regulation

  • ICO - organising

    return

  • ongoing

    psycho-social assessment

  • increased

    security

  • access
  • provision

    of centre services

3.

Open Hostel

  • intermediate

    regime

  • day release/pass
  • monitored

For

certain categories:

  • further

    investigation

  • long-term

    detainees

Case

worker:

  • informing

    of decisions

  • administering

    living assistance

  • ongoing

    assessment

  • risk prevention

    and conflict resolution

  • referral

    to additional management

As

above

  • monitoring

    community release conditions

  • Periodic

    review

  • Compliance

    Officer-overseeing

  • security

    and client case management

  • ICO-may

    be assessing claim

  • Ongoing

    psycho-social assessment

  • monitoring

    curfew and supervision requirements

4.

Structured Release Program

  • Community

    Agency Release, Family Release or Release on Own Undertaking

For

certain categories:

  • families
  • unaccompanied

    minors

  • exemption

    criteria

  • I,H,S and

    Pscycho-social Risk Assessment cleared single adults

Case

worker:

  • Needs assessment
  • informing

    of decisions

  • preparation

    for all immigration outcomes

  • administering

    living assistance scheme

  • arranging

    volunteer support and referral

  • informing

    Assessment Panel

As

above

  • monitoring

    community release conditions

  • periodic

    review

  • tender management
  • compliance

    officer issuing bridging visas

  • ICO - may

    be assessing claim

  • ongoing

    psycho-social assessment

 

5. Release issues

There are two major

areas that need to be considered in regards to any release of asylum seekers

from immigration detention centres in Australia: firstly, considerations

under the current system, and secondly, general considerations under a

reformed system whereby certain responsibility is handed to welfare/community

agencies.

Current Detention

System

Under the current

system of detention, the only avenues for release are the provision of

a Temporary Protection or Humanitarian Visa, or review of immigration

detention and issuance of a bridging visa under the following criteria:

1) Minors with adequate

community care

2) Special Needs: Medical/Psychological, Torture grounds

3) Persons over 75

4) Spouse is an Australian citizen

5) No primary decision within 6 months

Also Immigration

Cleared ‘detainees’ who have breached visa requirements may

approach the MRT, Federal Court or Compliance may release them on a bond.

The eligibility grounds for bridging visas for unauthorised arrivals have

not been exercised to any great extent.

There have been a

number of cases of people released for psychological reasons, often after

their situation has become acutely critical. Others who have been released

from detention tend to be people who have breached a visa requirement

and have had knowledge of the system, contacts, reasonable English and

an ability to raise money for a bond. There are however currently a number

of unaccompanied minors in detention and arguably many more detainees

could fulfill the exemption grounds for a bridging visa. A number of groups

and individuals have been working to help facilitate the release of those

at high risk in immigration detention centres. But a more concerted and

coordinated effort is needed.

Experience has shown

that to be able to successfully assist with a release a number of factors

are required:

  • Discretion for

    all agencies involved

  • Building a trusting

    relationship with DIMIA

  • Negotiations

    with Compliance

  • Community Release

    Support (Housing, living assistance, medical support etc)

  • Clear Care Options
  • Collaboration

    of childcare services, lawyers, barristers, mental health professionals

    housing and asylum seeker support agencies, detention centre chaplains

    and ethnic communities.

Asylum Seekers released

from detention under these exemption criteria are generally released on

a Bridging Visa E, which denies the right to work, Medicare and any government

benefit. The agency or individual who undertakes the provision of support

must agree to provide all housing, medical and living assistance.

There are many obstacles

facing the release of children from detention under the current system

as it is generally decided that it is in the child’s best interest

to remain with their parents in detention. For unaccompanied minors challenges

have included uncertainty as to the procedures and protocols, lack of

adequate community care plans, difficulties for community groups and state

child protection agencies to work together and issues around guardianship

and delegation of that guardianship on release. Furthermore, due to the

lack of rights and entitlements of asylum seekers in the community there

has been some hesitancy for authorities to allow the release of children

from detention, as they are essentially released with no provision for

Medicare or income support.

Any move by established

welfare agencies to take on the responsibility of community support for

asylum seekers requires lobbying to allow for the right to work, the right

to Medicare and the right to adequate living assistance for all asylum

seekers living in the community.

1. Compliance/Absconding

The RTP System has

considered the issue of absconding from a number of angles; the use of

risk assessment systems, evidence of the rates of absconding in Australia

and overseas and the role of compliance, case management and the assessment

panel.

The involvement of

case workers and other community agencies in this system ensures visibility

and accessibility and contributes to the asylum seekers meeting their

compliance requirements with DIMIA. However the responsibility of DIMIA

needs to be highlighted, particularly the explicit Immigration Compliance

role in supervision requirements and return to detention and On-shore

Protection in ongoing risk assessment and organising return travel.

Steven Columbus argues

that ‘a fair and comprehensive risk assessment procedure, one

that strikes a compassionate balance between humanitarian and border control

imperatives, is possible’ [15]. He has identified

a number of personal and systemic categories that explore the incentives/disincentives

to abscond which may form a basis to a risk assessment. These include:

Personal:

  • Perceived strength

    of claim - applicant

  • Sex/age/family

    ties

  • Community/relatives
  • Desire to obtain

    durable solution.

Systemic:

  • Desire to access

    and maintain social services - benefits, work rights etc.

  • Legal representation
  • Stage of claim
  • Perceived strength

    of claim – decision maker

  • The presence

    of established community release programs

  • Legality of entry
  • Overarching philosophy

    of the system.

Assessments will

take into account recommendations on identity and security matters from

ASIO and DIMIA On-shore Protection and Compliance, as well as the risk

assessment on the ‘significant chance’ of asylum seekers absconding

[16]. This will include factors such as family/contacts

in Australia, behaviour while in detention, and individual circumstances,

such as age and health conditions. This is framed in the Pscho-social

Risk Assessment on the following page.

Individual assessments

and recommendations are handed over to the Assessment Panel for a final

decision, review of a client’s category and decisions on release

or return to detention. Decisions are determined by the level of risk:

  • High: people

    convicted of a serious criminal offence or suspected as posing a risk

    to national security

  • Medium:

    people with communicable diseases or considered a serious risk to abscond

  • Minimal:

    All not falling into categories 1 and 2. [17]

In making decisions

on various forms of release, a small margin of absconding needs to be

taken into account which should not in itself pose unreasonable concerns

to authorities or the community given that health and security checks

have taken place. However more importantly, evidence shows that the fear

of absconding is exaggerated. No unauthorised asylum seeker released on

a bridging visa in Australia from 1996-1998 failed to meet their reporting

obligations to DIMIA.[18] Similarly, an INS experiment

in the US of 640 detainees released into the community had a 95% compliance

rate on release.[19]

In Sweden, there

has proven to be a high level of compliance and voluntary repatriation

in negative decisions with very few asylum seekers absconding under supervision.

A system of release into the community, after initial health and security

checks, has brought significant reduction in the use of taxpayers’

money and in public outcry. Sweden now has the lowest levels of illegal

immigrants living in the community in Europe, with research showing that

resettled refugees integrate quickly into the community with no increase

in levels of welfare dependency or crime. [20]

Why might this be

the case? The experience of the Hotham Asylum Seeker Project in Melbourne

is informative, their Coordinator, Grant Mitchell explaining:

The work at

Hotham Mission shows on a micro-level how community/church based agencies

are able to provide comprehensive and ongoing support for asylum seekers

in the community while providing some reassurance for decision-makers.

The project has seen many positive outcomes in our work, despite the

challenges, limitations and difficulties in working with a client group

that have no income/Medicare and who may find themselves returned to

detention or their home country… We have also had extremely high

figures in our clients complying with decisions and registering with

Immigration Compliance, much of this being built on the trust we have

placed in our clients.

Mitchell explains

that:

We have worked

like case workers in empowering our clients to make the few decisions

they can and advocating for them between service providers and DIMIA.

We have found that ensuring asylum seekers have adequate legal representation

and are aware of the immigration process means they are more likely

to feel like they have had a fair hearing. Also providing further support,

such as following-up on return or organising for Red Cross to meet them,

greatly assists the asylum seeker to make the difficult journey home

and allows for third country options to be explored on a final negative

decision. Of course, this has proved easier for clients we have worked

with and supported from the initial stages, an argument for consistent

and ongoing case management of asylum seekers both in detention and

in the community.

2. Work Rights

and Income Support

Allowing work rights

would alleviate the financial burden of assisting a large number of asylum

seekers with no income. This would also ensure all asylum seekers have

access to Medicare. The expansion of income support to cover individuals

often unable to work such as single mothers and unaccompanied youths in

school would significantly help to reduce acute homelessness and poverty

of these groups. Such income support already exists in Australia.

The Department of

Immigration and Multicultural Affairs provide limited financial assistance

to those who meet financial hardship criteria and who have been waiting

for a decision on their Protection Visa application for six months or

more. Financial assistance is available to PV applicants who are unable

to meet their most basic needs for food, accommodation and health care

through the Asylum Seeker Assistance Scheme (ASAS). The Scheme is administered

by DIMIA through contractual arrangements with the Australian Red Cross.

In 2000-2001, the scheme assisted 2,691 clients at a cost of $11.185 million.

[21] ASAS provides a casework service and limited financial

assistance to asylum seekers in the community. Casework services offer:

  • crisis intervention

    and needs assessment

  • counseling
  • administration

    of limited financial assistance, health care and pharmaceutical program

  • Referral to other

    agencies (legal, medical, specialist counseling, social, education,

    material-aid, housing)

  • advocacy
  • group work
  • administration

    of limited emergency relief funds. [22]

Ongoing assistance

is subject to continuing needs assessment by Red Cross ASAS case workers.

Payment rates are calculated at roughly 89% of Special Benefit provided

through Centrelink.

Asylum seekers who

meet certain exemption criteria may qualify for ASAS payments within the

six-month waiting period. [23] Assistance is also available

for health and character check costs associated with the Protection Visa

application process.

Asylum seekers cease

to be eligible for ASAS payments when the Department of Immigration and

Multicultural Affairs has decided their Protection Visa application. ASAS

payments are not available to those seeking a review of their case through

the Refugee Review Tribunal, with the exception of those who meet the

exemption criteria referred to above. ASAS payments are not available,

without exception, to those who have appealed to the Federal Court for

judicial review or directly to the Minister for Immigration and Multicultural

Affairs.

According to the

structured release program, asylum seekers are eligible for different

entitlements according to their processing stage. Examples of this include

reduced ASAS entitlements to people in open hostel, family and community

group release and full ASAS entitlements for those released on their own

undertaking. The structure of this support may vary or combine a number

of systems, such as:

  • Living allowance
  • ASAS
  • Entitlement Card
  • Voucher System
  • Centrelink
  • Work Rights.

Paying a regular

allowance becomes a way of securing compliance, and can be a means of

monitoring and assessing asylum seekers in the community.

3. Health Issues

ASAS recipients who

do not have access to Medicare can receive assistance with health care

costs and can also be referred to counselling services. A bridging visa

may have work rights attached depending on individual circumstances. To

gain access to Medicare, asylum seekers must have an un-finalised application

for a permanent residence visa (ie, either for migration or asylum) and

hold a valid visa with work rights in force.

Those not entitled

to either ASAS, work rights or Medicare, however, are in a precarious

situation. While free health services and networks are in place around

the country to assist this group, they often lack uniformity and resources.

Full access to Medicare and mainstream health services, as well as specialised

Refugee Health Teams is essential. This includes initial independent,

trauma sensitive health assessments.

4. Housing

There are various

housing options for asylum seekers released into the community, such as:

Cluster housing, open hostels, community/church housing/ transitional

housing. There are benefits of centralising health, education and recreational

services in single locations near major population centres. A recent example

are open hostels where asylum seekers from Kosova resided in 1999.

While Commonwealth

funding is obviously required to establish housing for large numbers of

asylum seekers, there already exists housing options around the country

for asylum seekers such as unaccompanied minors, single mothers and people

at high risk psychologically. Hotham Mission, for example, currently houses

over 60 asylum seekers in church housing, while 17 large welfare agencies,

such as Uniting Care and St Vincent De Paul, recently pledged to make

available properties for asylum seekers released from detention.

6. Outcomes under

a reformed system

The Reception and

Transitional Processing System aims to address difficulties and inconsistencies

in current detention and community approaches to asylum seekers and to

provide the best outcome for both the wider community and the asylum seeker.

Settlement

Settlement is greatly

improved under the RTP System in allowing for most asylum seekers to live

in the community. As found in Sweden, there is a relationship between

the immigration process and the ability to integrate efficiently. In other

words, how one is treated throughout the immigration process determines

to a large extent the ease with which one settles. This has been highlighted

recently in a number of reports on the impact of detention on long-term

mental health, particularly in children. [24] This obviously

has huge implications for the wider community in ensuring social cohesion,

and for those granted refugee status, in ensuring adequate protection

and support is in place.

To ensure the best

possible outcome for settlement for the asylum seeker and the wider community,

the following recommended:

  • Abolish the Temporary

    Protection Visa categories under the recent Consequential Provisions

    Legislation

  • Allow for full

    settlement services from Migrant Resource Centres and access to English

    language, public housing and other services.

Return

The RTP System also

promotes and ensures humane and effective return processes. As shown in

Sweden, people are more likely to comply on final decisions if prepared

and empowered throughout the determination process. (See Summary of the

Swedish Model)

Various ways the

RTP System ensures a more humane and functioning return system, include:

  • Ensuring from

    the outset that the asylum seeker is aware of the immigration process,

    has access to legal counsel and is thus more likely to feel like they

    have had a fair and expeditious hearing.

  • The case worker

    role in exploring and preparing clients for all possible immigration

    outcomes.

  • By providing

    ‘motivational counselling’, including coping with a negative

    decision, preparation to return and empowering clients to make decisions.

  • Following a risk

    assessment, the panel will make a decision on a final decision as to

    whether the asylum seeker needs to be detained. (It is in this context

    in Sweden that one parent may be detained while the other parent and

    children are held in the community outside the detention centre. Travel

    arrangements are often made prior to being placed in detention to minimise

    the time held).

  • Providing incentives

    for those who choose to voluntarily repatriate, including allowing time

    to find a third

  • country of resettlement,

    paying for return flights, including domestic travel and allowing for

    some funds for resettlement.

  • Allowing for

    Red Cross, IOM or family members to meet them on arrival and if appropriate

    follow-up postreturn to ensure the safety of those returned and to safeguard

    future determination decisions.

Furthermore it is

suggested that a special visa category be established for long-term detainees,

particularly failed refugee claimants, where no repatriation agreements

are in place. This would allow the asylum seeker to live in the community

while awaiting expulsion orders. Community or monitored release would

only be issued after individual assessment and with adequate supervision

and compliance requirements. Closed detention may be required at the final

stage/s if the asylum seeker is deemed likely to abscond.

Other positive outcomes

from the RTP System include fewer incidents in detention centres, reducing

the risk for long-term mental health issues, increased worker safety in

detention centres and more importantly allowing for a more humane treatment

of asylum seekers during the determination process, while providing some

reassurance to both decision-makers and the wider community.

Example

– Settlement

8

months after arriving in Australia Fatima was found to be a refugee.

Now that her and her husband were on permanent protection visas they

felt safe in Australia and ready to look to the future. It helped that

she had been living in the wider community since arrival and could get

assistance from the local migrant resource centre. She could now concentrate

on her English studies.

Her

children’s nightmares about the boat trip seemed less frequent.

She could not imagine how they would be if they had spent the last 8

months in detention. Fatia is seeing a trauma counsellor but feels she

won’t need to see her much longer.

Example

– Voluntary Repatriation

Indika’s

case worker had been exploring with him the possibility of return. It

took some time for Indika to realise that there was no possibility for

him to remain in Australia. He really didn’t want to go home but

realised he had no other option and that he would only make the matter

worse if he didn’t comply with the decision. He has told his case

worker that he would rather go back to Sri Lanka voluntarilly, as he

was afraid forcible return would only draw more attention to himself.

Indika

was given some assistance to help him resettle in another part of the

country. He also was given the details of an NGO who he could contact

if he wanted for additional support and to let them know he was alright..

Example

– Long term detainee

Akbar

spent 1 year in the Open Hostel, studying in the morning and working

in the afternoon. He longed to be able to move into a flat with his

friends who had been granted refugee status. He was also worried about

being placed in the closed centre or being deported, although he had

never broken his supervision requirements and kept in touch with his

case worker.

One

day his case worker said that DIMIA had not been able to find a country

to return him to and that he would be granted a special visa allowing

him to live in the community while awaiting a repatriation agreement.

He now hopes DIMIA will find him to be trulely stateless and grant him

a humanitarian visa.

7. Conclusion

The Reception and

Transitional Processing System aims to oversee the transition from a detention

to a reception regime, based on a comprehensive risk assessment, case

worker support, assessment panel oversight and implemented according to

specific process stages.

The Justice for Asylum

Seeker Detention Reform Group is convinced of both the need and the ability

for Australia to move towards a balanced detention/reception system. We

believe the RTP System includes a number of elements that enable both

a humane and flexible response to asylum seekers, while providing reassurance

for decision-makers and the wider community.

There is no evidence

that detention deters asylum seekers. In fact 10 years of mandatory detention

in Australia has not stemmed the flow of asylum seekers, who are still

forced to flee due to extreme circumstances in their countries of origin.

[25] JAS thus rejects the notion that detention achieves

deterrence, and that detention should be the norm. Instead we believe

detention should be used only for a limited time, in most cases for:

  • Identity, Health

    and Security (IHS) checks upon arrival

  • If the person

    is a high risk to abscond and supervision in the community is deemed

    inadequate.

Furthermore we believe

the risk to abscond for most asylum seekers is exaggerated. Evidence from

Sweden, USA, Hotham Mission and Australia’s various parole models,

show this is to be the case. With ongoing case management, individual

risk assessment and a structured release program, we believe most asylum

seekers can be released into the community with supervision and compliance

requirements. Issues of national security and border protection are concerns

for all Australians. However, placed in the context of initial closed

detention and adequate health and security checks, these issues should

not be a hindrance to the release of those not found to be a security

risk. This is particularly highlighted with cases such as unaccompanied

minors and single mothers and children.

Changes to the current

system of detention are long overdue. A number of recent examples exist

which highlight the gap that exists between security and DIMIA and the

need for a case worker system. This includes the recent case of a Vietnamese

man in Villawood wrongly deported [26] and the Woomera

hunger strike of January 2002 which highlighted the lack of trust between

DIMIA, ACM and the detainees. In effect the Minister’s Immigration

Detention Advisory Group provided a de facto case management role. However

it is neither desirable nor sustainable for IDAG to fulfil this function

on anything more than a limited and ad hoc basis.

The need for a case

management system that oversees the asylum seeker from arrival to either

return or settlement is acutely evident.

The RTP System, we

believe, will contribute to a number of positive outcomes:

  • More effective

    and humane returns

  • Improving a person’s

    ability for settlement upon release

  • Reducing costs

    to the taxpayer of prolonged detention

  • Reducing incidents

    and problems and improving worker safety within the detention environment

  • Reducing the

    risk of long-term mental health problems due to prolonged detention

  • Releasing children

    and those at risk from the detention environment

  • Reassuring decision-makers

    and the wider community by means of an accountable and effective processing

    system

  • Allowing for

    a humane and balanced approach to asylum seekers during the determination

    process.

Positive outcomes

for a system such as this are already highlighted by the work being done

at Hotham Mission.

A primary challenge

is the need to bridge the enormous differences between current detention

and community practices. Any realistic attempt to discuss alternative

detention models in Australia must address this gap and attempt to find

linkages between detention and community. This includes not only practical

issues such as housing and health options in the community, but also larger

issues of community education and understanding. The transition from a

detention-based regime to a reception-based regime will be a process that

requires critical evaluation, realistic alternatives and analysis of service

provisions, costing, administrative and procedural responsibilities and

an ability for community and Commonwealth to work together. This is a

process which will take considerable time and effort, which is why the

RTP System is envisaged as an evolving structure that can be implemented

in various ways, step by step.

For further information

about the Reception and Transitional Processing System contact:

Grant Mitchell (03

9326 8343) and Marc Purcell (03 9926 5709)

Justice for Asylum Seekers (JAS) Alliance Detention Working Group

The Reception

and Transitional Processing System in practice:

The Asylum Seeker

Project at Hotham Mission in Melbourne has been providing accommodation

and support for asylum seekers in the community for almost 6 years. The

Asylum Seeker Project aims to build a comprehensive framework for community

support and to ensure a safe and welcoming environment for asylum seekers

in Victoria.

The majority of asylum

seekers worked with are ‘ineligible’ for Red Cross ASAS payments

and are without work rights or Medicare. Primarily they are those that

have either recently applied for a protection visa or those who have appealed

beyond the RRT.

The Asylum Seeker

Project currently works with 120 asylum seekers. Of those, 59 are housed

and 115 receive monthly emergency relief. Furthermore we work with around

30 asylum seekers currently in detention, both support work with clients

that have moved in and out of detention and in negotiating bridging visa

options for asylum seekers at high risk in detention. The project is currently

working with 42 asylum seeker children and youths.

The Transition

from Detention to the Community

Since late 2000,

the Asylum Seeker Project has been providing housing and assistance to

a number of asylum seekers released from detention on bridging visas.

These asylum seekers

fall into two main categories:

  • Those released

    for psychological reasons

  • Those detained

    for breaching their bridging visa requirements

Overall, the Project

provides post-release support, such as housing, referral and emergency

relief, to a total of 27 asylum seekers released on bridging visas, including

6 children. 12 were released for psychological reasons, 2 were released

as unaccompanied minors and 13 were released after breaching their bridging

visa requirements or after paying a bond.

In 14 of these cases,

the project negotiated or assisted in their early release, 9 for psychological

reasons and 5 who had breached their bridging visa requirements.

Of these 27 people,

26 were released without work rights and 1 released with work rights.

Bar one, all of these asylum seekers were released on a Bridging Visa

E. To our knowledge, bar one person, none of these asylum seekers released

on bridging visas have undergone the security and police checks undertaken

on receiving a protection visa.

The Process of

Release

There seems to have

been 2 main ways of negotiating the release of detainees:

  • Individual Assessment/Negotiations

    – Primarily psychological

  • Provision of

    Support- Primarily for those who have worked unlawfully or breached

    their visa requirements

1) Individual

Assessment/Negotiations

After an incident

of self-harm or hospitalisation an independent psychological assessment

is made. A decision may be made by DIMIA as to whether the asylum seeker

needs to be released into the community on a bridging visa. This is generally

after the consulting psychologist at the IDC has made a report.

DIMIA may also make

a decision following a psychological evaluation at a lawyer’s request

regarding their refugee claim, as it may be discovered that there are

serious concerns for the person’s mental health.

If an asylum seeker

is hospitalized, the request may be for a community treatment order or

may be released into the care of an agency or individual who has had prolonged

contact with the person while in detention. A provision of support and

a care plan may be required in some cases. These are also the same principles

used for medical grounds.

2) Provision of

Support

A letter of support

is written assuring the detainee will not need to work on release as all

major needs will be provided for by the Project. This involves written

submissions to the MRT as well as negotiations and written support to

Compliance. If the case is taken to the Federal Court then further information

may be provided by the Project.

Before releasing

a detainee DIMIA’s Compliance section require a guarantee that the

Project will be responsible for:

1) Providing a fixed

address

2) Financial assistance and material aid

3) Assistance for medical or health issues

4) Some level of supervision and compliance

5) Make the person available on a final negative decision

It is at Compliance’s

discretion whether a document may need to be signed assuring the above.

Housing, Material

Aid and Medical

Asylum Seekers released

to the Project’s care are treated equally as those in the community,

with both provision of housing and general support and assistance. The

Asylum Seeker Project and the Brigidine Sisters are now working together

with a house in Albert Park specifically for males released from detention

on bridging visas.

Emergency Relief

and a limited provision of funds for emergency health are available for

those who require assistance. An Asylum Seeker Community Health Centre,

Bula Bula made up of volunteer medical practitioners, is established in

the Asylum Seeker Resource Centre in Footscray to assist those without

Medicare.

Supervision and

Compliance

Aspects of supervision

and ‘immigration compliance’ include encouraging asylum seekers

to comply with decisions. This includes ensuring they have travel cards

to register with DIMIA’s Compliance Section, according to their Bridging

Visa requirements. The Housing Support workers have regular contact with

the clients and monthly housing meetings. The clients must also visit

ASP at Hotham Mission once a month to receive their emergency relief and

for ongoing need and risk assessments. ASP and other agencies involved,

such as Foundation House, often make an attempt to explore all possible

immigration outcomes with the client. This has proved easier for clients

we have worked extensively with from the outset. It is much more difficult

to gain the trust and confidence to explore these issues with clients

who have had significant time in detention or who we only have had contact

with at the final stage/s.

We do not inform

Compliance of the movements or actions of our clients and neither are

we in a position to implement immigration decisions. We do inform Compliance

and On Shore Protection however if an asylum seeker is at risk of self-harm

and on a final decision we may discuss with DIMIA options for the client.

Settlement and

Return

Of the approximately

150 asylum seekers we have worked with since February 2000, 10 have voluntarily

repatriated, of which 3 have voluntarily repatriated to a third country

prior to a final decision. 7 asylum seekers have voluntarily repatriated

to their home country on a final decision after we negotiated with Compliance

that we arrange the travel arrangements and that they not be detained.

This allows for their return with dignity and keeps them out of detention.

In these cases we

bought the ticket, arranged their departure and in some cases arranged

for Red Cross or family members to meet them on arrival. Most of them

contacted us afterwards to let us know how they were.

An important reason

for asylum seekers in the community to be able to be provided with the

flight home is that they will not be exempt from entering the country

for 5 years, as occurs if they are detained and then returned. This is

particularly important if they have family or relatives in Australia.

3 have been detained and forcibly returned to their country of origin.

There have been 20

asylum seekers who settled after receiving a positive decision. 16 have

been granted permanent protection visas and 4 temporary protection visas.

Those granted permanent visas that have had the support of the Project

throughout the process have settled extremely well, with 6 working, one

studying at University and the remaining have only recently received decisions.

Those granted Temporary Protection Visas have had a more difficult transition

in settlement, particularly those unable to be reunited with spouses and

children.

2 asylum seekers

have moved interstate, while the remainder are awaiting a decision, either

from the RRT, Federal or High Court or the Minister. No asylum seekers

have absconded.

Challenges

The major challenge

right now is to fully utilize the bridging visa exemption grounds for

unaccompanied minors and those at high risk both psychologically and medically

in detention. This requires a discreet and united effort by key players,

such as childcare services, lawyers, barristers, mental health professionals,

DIMIA, housing and asylum seeker support agencies, chaplains and ethnic

communities. With the starting point being:

1) Discretion between

all agencies involved

2) Building a trusting relationship with DIMIA

3) Negotiations with Compliance

4) Community Release Support (Housing, living assistance, medical support

etc)

5) Clear Care Options.

The importance of

this is two-fold, both to ensure the release of high-risk asylum seekers

from detention, but also to build the foundations to a reception regime

whereby asylum seekers can live in the community with adequate support.

There are a number

of challenges for the Asylum Seeker Project in working with asylum seekers

in the community. Most importantly the fact that the financial component

of assisting a large number of asylum seekers with no income would be

alleviated by allowing work rights. This would also ensure all asylum

seekers have access to Medicare. Also the expansion of ASAS to cover individuals

often unable to work such as single mothers and unaccompanied youths in

school would significantly help to reduce acute homelessness and poverty

of these groups.

An increased difficulty

has been that most are released on a Bridging Visa E, with no work rights

or income support, yet some are required to register at DIMIA compliance

up to 3 times per week. This costs us over $1000 a month just to cover

travel cards.

Also the cost of

arranging for return travel is beyond the scope of any community-based

project. It has been helpful that in some cases an asylum seeker can be

granted 2 weeks work rights to help pay for their ticket home, however

this is rarely adequate. A cheaper and better way is allowing asylum seekers

the right to work until the final stage of the decision making process.

We have had two cases of asylum seekers released from detention wanting

to return home voluntarily but not having work rights to pay for the travel

or the issuance of a new passport. As there is no one with the money to

assist the person their only option is to return to detention where the

fares are paid. As most clients do not wish to return to detention, they

are forced to appeal further.

There have been

some inconsistencies with Compliance at the 417 stage, particularly when

the Minister has refused to use his discretion. Clients are rarely informed

of their immigration options and issues of return are not adequately discussed.

It has proven difficult to negotiate the release of unauthorised arrivals

at the 417 Ministerial stage, who are not eligible for any bridging visa.

This is particularly important for those in detention not coping psychologically.

Although in extreme cases they may be detained elsewhere, the practicalities

of this have proven difficult because hospitals or other places where

they may be held are required to ensure they will supervise and restrain

the client if required. This would be alleviated if they could be exempted

and be able to apply for a bridging visa.

Positive Outcomes

The work at Hotham

Mission demonstrates on a micro-level how community/church based agencies

are able to provide comprehensive and ongoing support for asylum seekers

in the community while providing some reassurance for decision-makers.

The Project members have seen many positive outcomes in our work, despite

the challenges, limitations and difficulties in working with a client

group that have no income/Medicare and who may find themselves returned

to detention or their country of origin.

All the asylum seekers

released into our care for psychological reasons have made encouraging

improvements, due in part to the joint work of mental health practitioners,

the LinkUp volunteer program and the supportive environment in place,

such as our Project and the Asylum Seeker Resource Centre. While it has

been far more challenging to facilitate the release of unaccompanied minors

on bridging visas, much work has been done to develop consistent and comprehensive

Community Care Plans. There definitely is the ability and capacity to

address the needs of this group if released into the community on bridging

visas. This was outlined recently with the offer by 12 large welfare agencies

in Victoria to collaborate and provide their services if the remaining

unaccompanied minors in detention centres around Australia are released.

The LinkUp program

is a perfect example of a community based volunteer structure that assists

and supports asylum seekers. This has been both with asylum seekers in

the community and by visiting and forging community links with asylum

seekers in detention prior to release. LinkUp operates by breaking down

social isolation and expanding networks of support into the community,

while ensuring visibility and wider understanding in the community. Furthermore

the LinkUp program has been extremely beneficial in its supportive role

for children and young asylum seekers who are often isolated in the community.

A recent survey of LinkUp volunteers indicated that over 97% found that

the experience was positive for both the asylum seeker and the volunteer

and that most had said they have become friends for life. All respondents

felt LinkUp was an important means for asylum seekers to gain important

contacts and supports and for the wider community to gain an understanding

of the asylum seeker experience and to breakdown myths. We have also had

an extremely high percentage of our clients complying with negative decisions

and registering with Compliance, much of this resulting from the trust

fostered among our clients. We have worked in a manner that resembles

case workers in empowering our clients to make the few decisions they

can and advocating for them between service providers and DIMIA. In ensuring

asylum seekers have adequate legal representation and are aware of the

immigration process we have found that they are more likely to feel they

have had a fair hearing. Moreover by providing further support, such as

following-up on return or organising for Red Cross to meet them the asylum

seeker is greatly assisted to make the difficult journey home and allows

for third country options to be explored on a final negative decision.

Of course, this has proved easier for clients we have worked with and

supported from the initial stages, an argument for consistent and ongoing

case management of asylum seekers both in detention and in the community.

The structure of

the Asylum Seeker Project at Hotham Mission is in many ways similar to

the Swedish ‘reception centre’ concept. The coordinator previously

worked for the Swedish Migration Board in both their reception and detention

centres and has modeled much of the project’s housing and support

work on this model, such as:

  • Visiting individuals

    and families in detention and gaining contact prior to release.

  • Assigning all

    asylum seekers an ‘outreach’ worker for ongoing contact, referral

    and support.

  • Living assistance

    linked to monthly contact and assessment at the central office.

  • A mediation role

    between department, service providers and the asylum seeker.

  • Empowering and

    preparing asylum seekers for all possible immigration outcomes.

Based on the experience

of the Asylum Seeker Project working with both asylum seekers in the community

and those released from detention, there is no reason why asylum seekers

in detention, particularly children, family units, young people and those

not coping with the detention system could not be released into the community.

Such a release would have benefits for both the asylum seeker and the

wider community. Some of these benefits include:

  • Assisting the

    settlement of those granted refugee status

  • Reducing public

    outcry over the prolonged detention of children

  • Reducing the risk

    of re-traumatisation of those psychologically at risk

  • Allowing for more

    a flexible response to those at risk in the detention environment

  • Reducing costs

    to the tax-payer of prolonged detention

But most importantly

this approach would comply with Article 37 (b) of the Convention on the

Rights of the Child: “No child shall be deprived of his liberty

unlawfully or arbitrarily. The arrest, detention or imprisonment of a

child shall be in conformity with the law and shall be used only as a

measure of last resort and for the shortest appropriate period of time…”

Grant Mitchell

Project Coordinator

Asylum Seeker Project

Hotham Mission

MAY 2002

B) Summary of

the Swedish Model

Swedish Refugee and

Migration Policy has been through a number of changes in the past 20 years,

most recently being the division of immigration and settlement policies

into two different departments – Migration Board and Integration

Board. Simultaneously certain immigration responsibilities have been handed

over to the Migration Board from the Federal Police, including detention

practices. Since 1996 the Swedish government has implemented a number

of changes to create a refugee policy that provides a legal and social

framework for a humane and integrated approach to reception, detention,

determination, integration and return.

Certain minimum standards

in detention and return procedures have been established which are undeniably

rooted in the state’s consciousness of fundamental universal rights

for all within the nation-state. Swedish law states that all who are held

in detention shall be treated humanely with their dignity respected. [27]

People smuggling and the risk of asylum seekers absconding, while taken

seriously, are not overemphasised, nor is detention used as a deterrent.

Detention however is used in the initial period to determine the identity

of those that have sought asylum without identification, for investigation

and to realise return. This however must be done with sensitivity and

with civil-rights not being infringed upon beyond freedom of movement.

Previous problems

in Swedish detention centres, such as including riots, mass hunger strikes

and worker safety have been addressed due to comprehensive changes by

the Swedish government following an inquiry in 1997. The changes included:

  • The removal of

    private contractors and the police from the detention centres

  • Dividing detention

    into 3 categories: initial health, security and health checks; investigation;

    and for realising return for individuals at high risk of absconding.

  • Implementing a

    case worker system aimed at need and risk assessment and preparing detainees

    for all immigration outcomes

  • Increasing transparency

    in management and operation, with centres to be run more like closed

    institutions than prisons.

  • Ensuring all staff

    are trained to work with asylum seekers and show appropriate cultural

    and gender sensitivity and respect to all detainees.

  • Increasing access

    for NGOs, clergy, researchers, counsellors and the media.

  • Allowing for freedom

    of information, such as access to internet, NGOs and the option to speak

    to the media

  • Ensuring legal

    counsel and the right to appeal is available

  • Ensuring no children

    are held in detention for extended periods and removing families as

    soon as possible.

If an asylum seeker

living in the community is assessed at being a high risk to abscond just

prior to receiving a final decision they will be placed in detention.

The case worker system has also encouraged failed refugee claimants in

Sweden to comply and return after a final decision in a number of ways:

1) By providing ‘motivational

counselling’, including coping with a decision and preparation to

return

2) Providing three options to asylum seekers: voluntary repatriation;

escort by case workers; or escort by police.

3) Providing incentives for those who chose to voluntarily repatriate,

including allowing time to find a third country of resettlement, paying

for return flights, including domestic travel and allowing for some funds

for resettlement.

The Swedish refugee

determination process has also been successful in reducing the appeal

time and the need for asylum seekers to access the courts. This has been

achieved by:

1) The incorporation

of a humanitarian and ‘other protection needs’ category at the

initial decision-making stage.

2) Allowing for an independent multi-member tribunal to review the initial

decision on both ‘convention’ and

other grounds.

3) Ensuring all asylum seekers are represented by legal counsel all both

stages of the refugee determination process.

Sweden is not a “soft

touch” country in regard to detention or deportation issues. Enforcement

of policy is a serious concern for the Government and the Migration Board,

with Sweden having the highest level of returns on

negative decisions in Europe, at over 80%. Over 76% of this group return

voluntarily. The remainder, around 23% are handed over to the police,

who only in extreme cases psychically restrain deportees. No deportee

is chemically restrained. [28] Major incidents of violence,

riots and mass hunger strikes have not occurred since the Migration Board

took over detention centres in 1997 and introduced changes to policy and

practice. The incidence of suicide attempts has also decreased and there

has been little animosity between staff and detainees. There has proven

to be a high level of compliance with decisions with very few asylum seekers

absconding under supervision. A system of release into the community,

after initial health and security checks, has brought significant reduction

in the use of taxpayers’ money and in public outcry. Sweden now has

the lowest levels of illegal immigrants living in the community in Europe,

with research showing that resettled refugees integrate quickly into the

community with no increase in levels of welfare dependency or crime. [29]

An integrated, humane

approach to refugee policy leads to less animosity and fewer problems

in detention centres and a safer working environment. It helps to effectively

enforce expulsion orders and more importantly helps those granted refugee

status and residency to integrate more quickly into society. The link

between immigration and settlement is taken seriously in Sweden, with

the way individuals are treated during the immigration process directly

related to how they adjust and settle into the new country.

The key to the success

of Sweden’s integrated approach is its streamlined refugee determination

process and its case worker system, which oversees an asylum seeker’s

journey throughout both reception and detention and onwards to either

return or settlement. It is a system based on informing and empowering

the asylum seeker and assisting bureaucratic decision-makers to make informed

decisions as to whether detention or reception is required and has ensured

that clients are prepared for either return or settlement.

Probably the most

important lesson to be learned from the Swedish experience is that a healthy

migration policy is not based on deterrence or on restrictive policies

or visas but allows for an expeditious refugee determination process and

effectively realises settlement or return. It is a system based on treating

asylum seekers humanely and with a uniformity of rights and entitlements

irrespective of the means of arrival, allowing for the best possible outcome

for both those seeking asylum and for the wider community. It is a system

that has a clear understanding that the asylum seeker experience cannot

be bureaucratically controlled and planned but demands flexibility and

compassion. [30]

Grant Mitchell

23 MARCH 2002

For a copy of the Swedish Approach

to Asylum Seekers contact Grant Mitchell:

asp@sub.net.au


1. Community

Aid Abroad, ‘Exploring Community Attitudes and Beliefs in Respect

of People seeking asylum’, October 2001. See also:

a) Robert Manne, ‘The Barren Years: John Howard and the Remaking

of Australia’, Melbourne, 2001, pp.79-81; pp.122-3.

b) Donald Horne, ‘Looking for Leadership: Australia in the Howard

Years’, Ringwood, 2001, pp.234-5.

c) Andrew Markus, ‘Race: John Howard and the Remaking of Australia’,

Crows Nest, 2001, p.105.

2.

Human rights are part of international customary law, but when a country

ratifies and accedes to a United Nations human rights convention, it can

only have domestic legal effect if a Parliament makes legislation to implement

it. Such legislation is the exception rather than the rule in Australia

with the result that international human rights law often only has a moral

(and implicit) legal effect on the Australian Government. Human Rights

are not legally binding in many cases. Australia has the Human Rights

and Equal Opportunity Commission (HREOC) to scrutinise respect and adherence

to the International Convention on Civil and Political Rights, the Convention

on the Rights of the Child and other UN human rights conventions. However

in regards to the Commonwealth Government, HREOC can only make non-binding

recommendations.

3. Human

Rights and Equal Opportunity Commission; ‘Those Who Come Across the

Seas Detention of Unauthorised Arrivals’, Cwth of Australia 1998,

p.iv.

4.

Ibid, p.iv.

5. Ibid,

p.iv.

6.

UN Economic and Social Council, ‘Detention of Asylum Seekers, Sub

–Commission on Human Rights Resolution 2000/1’, E/CN.4/SUB.2/RES/2000/21,

18 August 2000.

7. Hansard,

Questions taken on Notice 44, 20 February 2001, Senate Legal and Constitutional

Affairs Committee, Immigration and Multicultural AffairsPortfolio, Additional

Budget Estimates Hearing.

8.

Port Headland, Curtain and Woomera are officially referred to as Immigration

Reception and Processing Centres.

9. The

model is however drawn from a number of sources to ensure it has an appropriate

legal and social framework which addresses the current Australian social

and political climate; these include:

a) Alternative Detention

Model (RCOA/HREOC, Detention Reform Co-ordinating Committee -1996)

b) UNHCR Revised Guidelines on Detention of Asylum Seekers (UNHCR- 1999)

c) Asylum Seekers in Sweden (Grant Mitchell, Hotham Mission - 2001)

d) Submission to the Senate Legal and Constitutional References Committee

into Australia’s refugee and humanitarian program (HREOC-1998)

e) The Charter of Minimum Requirements for Legislation Relating to the

Detention of Asylum Seekers (Endorsed by various peak organisations-1994)

f) A Humane Alternative (Peter Mares, The Age - 2001)

g) Policy Proposal for adjustments to Australia’s Asylum Seeking

Process (Conference of Leaders of Religious Institutes, NSW -2001)

h) Reception of Asylum Seekers (Global Consultation on International Protection

– 2001)

i) Immigration Detention Suggested Remedies (RILC - 2001)

j) Reforming Australia’s Asylum Seeker Policy (Polmin – 2001)

k) Joint Standing Committee on Migration (Not the Hilton - 2000)

l) Key Recommendations on Refugee Children (ECRE –1996)

m) Asylum Seekers – Alternatives to Detention (Amnesty – 2001)

10. US

Lawyers Committee for Human Rights, ”Draft Preliminary review of

States’ procedure and Practices relating to Detention of Asylum Seekers”,

September 2001: Norway – 12 week maximum period, Italy – 20-30

days maximum period, Switzerland – Between 22 and 9 months maximum

depending on circumstances.

11. Alternative

Detention Model, RCOA/HREOC, 1996

12.

Policy Proposal for adjustments to Australia’s Asylum Seeking Process,

Conference of Leaders of Religious Institutes (NSW) 13th June, 2001

13. Alternative

Detention Model, RCOA/HREOC, 1996

14. Alternative

Detention Model, RCOA/HREOC, 1996

15. Columbus,

Steven; ‘Towards the goal of a more humane asylum system’, May

2002. Unpublished

16. Rivett,

K: ‘Is there an alternative to mandatory detention’, ‘People

and Place’, vol. 9, no.1, 2001, page 10

17. Kerr,

Duncan; ‘A better approach to asylum seekers’, 31, January,

2002, pages 8-10. Unpublished

18. Information

provided by the Office of the Minister for Immigration and Multicultural

Affairs in response to a question on notice by Natasha Stott-Despoja on

September 1, 1997 – Question 803. (Submission to the Senate Legal

and Constitutional References Committee – HREOC)

19. AC

Helton, ‘Reforming Alien Detention Policy in the US’, 1992

20. Österberg,

T: Economic Perspectives on immigrants and Intergenerational Transmissions,

Handelshögskolan, Göteborgsuniversitet, 2000

21. DIMA

Fact Sheet 42, Assistance for Asylum Seekers in Australia.

22. Australian

Red Cross, Victorian ASAS Unit, ‘ Asylum Seekers and the Asylum Seeker

Assistance Scheme,’ Info-sheet, February 2001.

23. Exemption

categories include:

• parents caring for children under 18 years of age

• unaccompanied children under 18 years of age

• persons over 65 years of age

• persons who are unable to work due to health and/or mental health

problems (including torture and trauma)

• full-time carers

• women with high-risk pregnancies.

24.

Silove, D and Steel, Z; ‘The Mental Health and Well-Being of On-Shore

Asylum Seekers in Australia’, University of NSW, 1998

25.

Rivett, K: ‘Is there an alternative to mandatory detention’,

People and Place, vol. 9, no.1, 2001, page 11

26.

‘The case of the wrong refugee’, The Australia, Vanessa Walker,

December 4, 2001

27.

Rikslagen 18: 1997:432

28. Swedish

Migration Board Statistics, August 2001

29. Österberg,

T: Economic Perspectives on immigrants and Intergenerational Transmissions,

Handelshögskolan, Göteborgsuniversitet, 2000

30.

Much of the research for this paper was based on first-hand experience

at the Carlslund detention centre.

Last

Updated 9 January 2003.