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Submission to the National

Inquiry into Children in Immigration Detention from

Steven

Colombus


Towards

the goal of a more humane asylum system

The

plight of children

The

importance of a workable alternative model

Demonstrated

risk of absconding - an unreasonable threshold?

Incentives/disincentives

to abscond

International

case study – USA: The AAP trial

Conclusions


Towards

the goal of a more humane asylum system

The current submission

recognises the need to move beyond mere critique of the status quo and

focus resources on the development of viable alternatives. To be feasible

any such model must satisfy the legitimate concerns of the government

while upholding the fundamental right of freedom of movement.

Following from the

presumption against detention, alternatives should be considered and where

viable alternatives exist these should be applied first, unless relevant

mitigating circumstances have been identified. Consistent with the individual

focus of international human rights law, the choice of alternative should

be “influenced by an individual assessment of the personal circumstances

of the asylum-seeker concerned” [1], taking into

account prevailing local conditions.

In a pointed statement

released late last year, Kenneth Rivett a life-time member of the RCOA,

observed that:

“…,

other organisations have failed again and again to end Mandatory Detention.

We will keep failing until we can give sensible answers to the plain

man’s question: What is your alternative?” [2]

This is a point well-made,

and one the author is acutely aware of. The models canvassed below represent

concerted efforts to articulate comprehensive, viable answers to the “plain

man’s” question. That the plain man is apparently uninterested

in the answers being proffered is a point of concern. In a recent defence

of Australia’s policy of mandatory detention, Prime Minister Howard

acknowledged that:

“Nobody likes

the present situation. We don’t like having to detain people but

there is no alternative if we are to keep control of

the flow of people into this country.” (emphasis added) [3]

Only mandatory detention,

it is argued, fulfils the dual function of deterrence (discouraging further

unauthorised entry), and border integrity (preventing arrivals from absconding

into the community). Even ignoring the many constructive alternatives

mooted in the Australian context, the author stresses that global conduct

offers nothing but alternatives, Australia being the only country in the

world that practises mandatory detention.

The plight

of children

One of the key points

established in the UNHCR revised guidelines on applicable criteria

and standards relating to the detention of asylum seekers, is the

recognition that not all asylum seekers are the same. This principle assumes

the greatest moral weight in the case of children, but applies equally

to all vulnerable groups. It seems only reasonable that such consideration

be extended to family groups, both in light of the principle of family

unity and the fact that women and children comprise integral parts of

family unit.

For detention of

these groups to be justifiable it must not merely be shown to be necessary,

but enforced only as a measure of last resort. Authorities are required

to examine all possible alternatives before imposing detention on such

vulnerable groups. Moreover detention must still be for the shortest possible

time. Therefore states, in the short term, are required to examine the

viability of community release in some form or other.

However, practical

dangers accompany any special pleading for children. With respect to the

current regime there is a demonstrable tension between the best interests

of the child and the principle of family unity [4], which

in practice is consigning children to continuing incarceration in the

company of their parents. Why? Because in most cases the ‘best interests

of the child’ are deemed best served by maintaining the integrity

of the family unit. As HREOC has pointed out in Briefing Paper 8:

“Under bridging

visa requirements, child asylum seekers cannot be released from immigration

detention unless a State or Territory child welfare authority certifies

that a release from detention is in the child's best interests and the

Minister for Immigration and Multicultural and Indigenous Affairs is

satisfied that appropriate arrangements have been made for the care

and welfare of the child outside of detention. [20] As it is usually

in a child's best interests to remain with her or his family, and there

is no provision for release of families from detention, children are

rarely granted bridging visas.”

And not without justification,

for what impact would such separation have on the child, not to mention

the one or both parents left in detention? Ironically, under mandatory

detention the principle upholding the ‘best interests of the child’

merely compounds the child’s trauma. Mandatory detention places

even the most well-meaning decision maker on the horns of a dilemma. What

is the kindest form of cruelty that can be imposed on the child - an indefinite

stay in detention or separation from the family?

Any selective alternative

to detention, whereby, children alone, or children with their mothers

are removed from detention, would be inherently problematic. A more humane

alternative would be to release all families, thus preserving the family

unit and ensuring the best interests of the child. But this would serve

only to legitimate ‘mandatory’ detention by default, and would

consign those detained contrary to international standards – that

is unnecessarily – to their fate.

The

importance of a workable alternative model

The author believes

that the only workable and morally tenable solution, therefore, lies with

the institution of a comprehensive alternative detention model, founded

on the principle of case-by-case assessment consistent with international

standards. Such a model would resolve the identified tensions because

consideration of mitigating factors would be built into the process of

case-by-case assessment. Several alternative models, tailored to the Australian

context, already exist. Chief among them are those developed by the RCOA,

HREOC, and more recently the Justice for Asylum Seekers (JAS) coalition.

Essentially, such

models prescribe not an alternative but rather several alternative

arrangements fulfilling different imperatives and existing side-by-side.

It is useful to imagine these alternatives occupying consecutive points

along a continuum representing progressively greater restrictions on an

asylum seeker’s movement. They presuppose a release screening process,

although the exact details remain undefined. Nevertheless, the intent

is clear, a flexible system in which the level of restriction imposed

on each individual asylum seeker can be linked directly to the level of

risk identified via screening. No explicit dispensation is extended on

the basis of age or sex because all models accord with relevant UNHCR

prescription and proceed on a case-by-case rather than categorical basis.

That is, special provision for vulnerable categories of asylum seeker,

i.e. progressively higher thresholds for women, and children, are built

into the proposed community release assessment procedures.

All the proposed

alternatives share the following positive features:

  • A more humane

    regime;

  • Greater flexibility;
  • Enhanced equity

    in the treatment extended to community and irregular asylum seekers

    respectively;

  • Reduced economic,

    social and political costs in processing;

  • Increased harmony

    with international human rights instruments.

The JAS coalition’s

Transitional Processing and Reception (TPR) model incorporates many of

the features of its contemporaries, but in a key innovation places the

person of the case-officer at the nexus of its proposed framework. The

case-officer mediates between the community and department, and monitors

the progress of the individual applicants throughout the reception and

determination process. Notably, the status of the case-officer reflects

inter alia, reservations that DIMA determination officers may

not have the resources necessary to make comprehensive risk assessments.

[5]

A feature as yet

absent from all such models, and one that the author believes to be a

significant obstacle to the ultimate implementation of any of them, is

a mechanism that explicitly addresses legitimate government concerns with

respect to absconding. The author hopes that what follows might serve

not only as a spur to constructive debate, but as a first rudimentary

step towards the goal of answering government disquiet.

Absconding:

“It has been

said that the supporters of Mandatory Detention are not raising the

question of absconding. If that’s the case, then so much the worse

for its opponents, who have evidently not pushed them until they were

forced to have recourse to this, much the most plausible of all the

arguments for detaining asylum seekers at all. The people one talks

to outside refugee circles can see that there is a problem of absconding.

They want to know how we’d handle it.” Kenneth Rivett, Detention

Proposals

The author acknowledges

that risk of absconding is a legitimate factor in any decision to detain,

and on the flipside, in any subsequent decision with respect to when and

if an individual should be released from detention. [6]

Given that detention

is mandatory for all unauthorised arrivals it must be assumed that this

presumption of abscondment extends to all unauthorised arrivals without

distinction. This orientation is contrary to the prescription of international

law, which places the onus on governments to demonstrate this risk on

a case-by-case basis. [7] No such universal assessment

framework exists in Australia, because the government countenances no

widely applicable alternatives to mandatory, indefinite detention.

What this section

endeavours to demonstrate is that a fair and comprehensive risk assessment

procedure, one that strikes a compassionate balance between humanitarian

and border control imperatives, is possible. Striking such a balance requires

the weighing-up a complex set of contributing factors. Currently only

one contributing factor dictates whether or not an asylum seeker will

be detained – mode of entry into Australia.

Those that enter

Australia on valid visas remain free in the community. Conversely, unauthorised

entrants who apply for asylum are detained for the entirety of the determination

process. The inequities and absurdities of this absolute differentiation

become clear upon examination.

Minister Ruddock

has explained this disparity with the suggestion that since we can be

certain of the identity of visa-holding asylum seekers we do not need

to detain them. [8]

But once the identity

of irregular entrants has been established what differentiates the two?

Where is the evidence that ‘irregular’ asylum seekers are

any more likely to abscond than those housed in the community? Attention

would no doubt then be drawn to the negative inferences arising from unauthorised

entry. But on the contrary little can be inferred from this factor in

isolation. Experience shows that the current wave of ‘boatpeople’

do not employ irregular channels as a means of infiltrating the community

undetected – as a means of achieving a ‘migration’ outcome,

but as a means of obtaining legitimate access to the refugee determination

process. Far from seeking to avoid official scrutiny, these people actively

seek to engage it. The vast majority of those arriving by such means are

subsequently determined to be Convention refugees. Indeed, the comparative

success of such arrivals relative to that of ‘community’ asylum

seekers casts further doubt on the logical basis for current detention

practice. Generally speaking detained asylum seekers have greater incentive

not to abscond because they are far more likely to win official leave

to remain (albeit grudging and temporary).

While upholding the

moral, social and economic advantages of detention alternatives, the author

does not maintain that all unauthorised entrants seeking asylum should

automatically be released into the community as a matter of principle.

Community release should be dependent on the individual asylum seeker

meeting necessary [9] health, identity and security requirements

[10]. By the same token, absconding risk must also be

assessed and given due weight.

Issues of compliance

and absconding constitute the raison d’etre of pre-release

risk assessment. This in its turn proceeds from the rationale that individuals

posing a high risk of absconding can be identified with considerable confidence,

even in the early stages of the asylum process. Such asylum seekers could

be precluded from community release. It is informed opinion of the author

however that such high-risk individuals would account for only a small

proportion of unauthorised asylum seekers so assessed. The remainder would

be determined eligible for release into the community, albeit under varying

degrees of constraint.

Recalling the plight

of children asylum seekers it must be emphasised that the likelihood of

any child fleeing into the community, there to live undetected and illegally,

is remote in extremis. It is therefore difficult to envisage any circumstances

in which detention of children could justifiably be imposed upon compliance

grounds.

The relationship

between compulsory pre-release screening and comprehensive detention alternatives

is inherently interdependent. That is, for optimal success such pre-release

screening would need to function in tandem with a flexible range of detention

alternatives to provide an environment that discourages absconding through

a combination of incentives and disincentives. One in which the level

of restriction imposed on each individual asylum seeker can be linked

proportionally to the level of risk identified via screening.

At the level of the

particular, there are a variety of safeguards that could be implemented:

residence at designated address, bonds, recognisance, sureties, notification

of change of address, reporting requirements, threat of return to detention

etc. Likewise, positive incentives not to abscond would include receipt

of assistance from ‘case officers’ and other support networks

(legal advice, community mentors), access to work rights, Medicare, living

benefits etc.

Demonstrated

risk of absconding - an unreasonable threshold?

One reasonable objection

raised against a universal assessment procedure is that practically speaking,

it is very difficult for governments to demonstrate such a risk. [11]

However, the difficulty perceived to inhere in any such assessment is

largely contingent on the level of proof expected. Of course it is completely

unreasonable to expect a government to demonstrate beyond all reasonable

doubt that any particular asylum seeker will abscond if released –

government decision makers are limited by incomplete information and obviously

are in no position to make unequivocal judgements about the future.

But this caveat extends

to every facet of the refugee determination process. All parties accept

the inherent deficiencies of the system because ultimately a flawed determination

system is far preferable to no determination system at all. Difficulties

notwithstanding criteria have been established that strike an adequate

balance between the domestic concerns of states and the stipulation of

international human rights law. Correlatively, the same can be argued

with respect to the formulation of absconding assessment criteria applicable

on a case-by-case basis to asylum seekers. Such assessment criteria could

take their place alongside other measures of necessary detention –

i.e. identity verification, security checks and ascertainment of basis

of claim.

The following list

is in no way presented as definitive; it is offered merely as an illustration

of the sort of informed considerations that might play a part in assessing

an individual’s risk of flight. It is emphasised moreover that in

practice, identified trends in absconding will serve to refine assessment

criteria.

The following categories

are separated to distinguish between those that are intrinsic to, and

those that exist beyond the agency of the individual applicant and are

therefore amenable to manipulation via government/community intervention.

The stark division drawn between personal/systemic factors is largely

artificial – in reality the boundaries would be fluid or non-existent

– but for the sake of analytical clarity it has been maintained.

Incentives/disincentives

to abscond:

Personal:

  • Perceived

    strength of claim - applicant

    The key to the assessment is not whether the asylum seeker has a good

    case, but rather whether the asylum seeker thinks he or she

    has a good case, on the basis that as long as the asylum seeker believes

    the claim to be a deserving one then he or she will go to appointments

    and is unlikely to abscond.

  • Sex/age/family

    ties

    Generally young, single males are more likely to abscond than women,

    children, or family units. They are likely to find it easier to survive

    as illegal aliens within the community – being free of dependents,

    and the concomitant responsibilities they bring, having greater options

    for illegal work, and being better equipped to escape detection. Women

    and children are liable to present a very low absconding risk for all

    the same reasons. The notion of proportionality should also be invoked

    in these cases: a relatively higher risk of absconding would have to

    be demonstrated to render said risk proportionate on balance to the

    grave human rights implications of detaining vulnerable individuals.

  • Community/relatives

    The presence of established extended families, or ethnic groups within

    the community has been demonstrated to be a strong incentive not to

    abscond. Such groups offer both support and guidance to the asylum seeker,

    and are able to forge bonds of trust and obligation that the released

    individual is unlikely to wish to betray. [12]

  • Desire

    to obtain durable solution

    The decision to accept the enormous hardships and risks inherent in

    flight from countries of origin to Australia is not taken lightly. Such

    refugees are seeking a durable solution to their fears and hence possess

    a strong intrinsic interest in complying with official procedure. Long-term

    security and well-being are unlikely to be achieved through flight into

    the community.

Systemic:

  • Desire

    to access and maintain social services - benefits, work rights etc.

    A system that provides benefits and services to asylum seekers who comply

    with established determination procedures simultaneously discourages

    abscondment. Where such inducements are offered they constitute a powerful

    compliance incentive. Until recently in New Zealand for example, claimants

    were typically released into the community under their own recognisance.

    In the wake of September 11 however, it has been policy to initially

    detain almost all those seeking asylum at the border. Before the new

    policy took effect just 5 per cent of asylum seekers were detained.

    Since September 19, 94 per cent have been detained. [13]

    On a more heartening note, the future of the new measures has been called

    into doubt by the High Court, which recently ruled the policy unlawful

    and "fundamentally defective".

The new policy notwithstanding

asylum seekers once in the community, continue to receive work permits,

access to employment services and unemployment benefits. A positive by-product

of such provisions is that ongoing receipt is tied to ongoing confirmation

of address. All such benefits, along with the accompanying disincentives

to abscond, cease if and when asylum seekers exhaust the determination

process.

Recent Australian

history has witnessed a concerted effort to take away rights and benefits

formally extended to asylum seekers and refugees. As a consequence asylum

seekers have a steadily diminishing pool of benefits to loose, and correlatively

fewer incentives not to abscond.

  • Legal

    representation

    Access to legal counsel is liable to have positive effects on both a

    practical and psychological level. The refugee process is completely

    alien to most applicants, who find it enormously intimidating and stressful.

    The aid of a specialist versed in refugee law will improve the asylum

    seekers chances of obtaining refugee status. By the same token, the

    applicant will gain a boost in confidence along with the reassurance

    that they will have a fair and expeditious hearing. For all these reasons

    and more, legal representation lessens the risk of absconding.

  • Stage

    of claim

    Typically the incentive not to abscond is greatest during the early

    stages of the application process. The expectation of refugee status

    is more than enough to keep most asylum seekers compliant with official

    procedures.

Even DIMIA has formerly

conceded that absconding is not generally an issue during the course of

the determination process:

“4.13 Another

reason for detention of unauthorised arrivals, in DIEA’s view

is that it ensures the availability of applicants for processing and,

if necessary, removal from the country. DIEA advised that, from its

experiences with applicants in the community, there usually is no problem

in maintaining contact with an applicant while the application is being

assessed. However, if the decision is negative, problems in locating

and removing applicants can and do arise. (JSCM p.110-111).

The crux of departmental

concern rests therefore with addressing the risk of absconding in the

event of an applicant exhausting all possible avenues to refugee status.

This is logical, as failure at each subsequent stage is liable to shake

the confidence of the applicant in their claim, and will add to the temptation

to flee to evade the prospect of forced removal.

However this small

truth exposes a big lie, for if compliance (particularly absconding) does

not constitute the real reason for mandatory, arbitrary, indefinite detention,

then we are entitled to ask what does.

Returning to the

implications of the small truth, and as is acknowledged in the findings

of the AAP (see below), ongoing assessment throughout the determination

process is desirable, and a return to detention may be warranted in some

cases for asylum seekers who have exhausted their avenues of appeal.

  • Perceived

    strength of claim – decision maker

    While every claim is unique there are definite ‘standard’

    claims, generally issue and nationality based, that allow decision makers

    at a very early stage of proceedings to predict outcome. One-child policy

    claims in the case of China, or fears of persecution held by ethnic

    Chinese in the case of Indonesia, are two examples. While not all applicants

    will be aware that their plight has only a remote chance of Convention

    recognition, it is likely that this will become apparent to them on

    release into the community. To some such claimants the incentives to

    pursue their claim could well be outweighed by fear of return, increasing

    the temptation to abscond at an early stage. This possibility would

    be one relevant consideration in countenancing what degree of restriction

    on movement to impose.

  • The presence

    of established community release programs

    This would encompass the breadth of measures incorporated in proposed

    alternative models. Suffice to say such models seek to afford a variety

    of incentives to compliance (supervision, support services, monitoring

    requirements, bail or sureties etc.). Participation in such programs

    will discourage resort to absconding.

  • Legality

    of entry

    Generally speaking, if an individual is willing to violate immigration

    procedures to access the asylum process then it might be presumed that

    they would be more liable to ignore officially sanctioned process if

    released into the community – especially if removal is sought.

    The operative word here is presumed, and for reasons alluded to above,

    this presumption must be tested and balanced against other more compelling

    factors, such as the perceived strength of the claim. In and of itself

    legality of entry provides a crude and indiscriminate tool of ‘assessment’.

  • Overarching

    philosophy of the system

    From the moment they arrive in Australian waters irregular asylum seekers

    are confronted with the inescapable realisation that the government

    presumes the worst about them. Interactions between the two are defined

    by the heavy-handed and punitive stance adopted by the government. What

    sort of disposition is this encouraging in asylum seekers, an obligation

    to ‘play by the rules’ and do right by the Australian community,

    or an inclination to simply confirm the fears projected upon them? This

    is not a relationship based on trust but on mutual fear and suspicion.

    Would those eligible for release into the community be likely to have

    any confidence that the system will deliver them a fair and just solution?

    Current recourse to a system of punitive deterrence has created a climate

    encouraging absconding.

    Nor should we

    take false comfort in the belief that such is an inevitable consequence

    of refugee determination. In fact, there is an enormous wellspring

    of gratitude and goodwill evinced by asylum seekers/refugees. Even

    during the fraught asylum process they display gratitude - they want

    to be good citizens, they want to contribute, and they want to do

    right by the country that offers them at the very least a considered,

    fair hearing of their case. All these factors (and more) contribute

    to the likelihood not only of absconding, but also of success once

    in the wider community. This is not to deny that all those good intentions

    are unlikely, in isolation, to compel a desperate person whose claim

    has been denied to return to possible danger or hardship voluntarily.

    But the significance of the goodwill and gratitude that arises from

    extending trust and treating people humanely and with dignity should

    not be underestimated, especially when augmented with sensible, prudent

    measures that encourage compliance.

    This is no empty

    assertion; it is born of professional experience, and corroborated

    by the findings of the Hotham mission in Australia and the AAP report

    in the United States. [14]

International

case study – USA: The AAP trial

In 1996 the Immigration

and Naturalization Service (INS) asked the Vera Institute of Justice to

establish what became known as the Appearance Assistance Program (AAP),

a three-year test of community supervision for people in immigration removal

proceedings in New York City. The INS goal was to explore supervision

and evaluate its effect on people’s rates of appearance in court

and compliance with court rulings compared to other alternatives to detention

already used by the agency, such as bond, parole, and release on recognizance.

This course was deemed necessary on account of the fact that these latter

methods had realised only limited success. Four years ago the INS estimated

that only 50% of noncitizens released into the community appeared in court.

Statistics also showed that those not detained pending their required

departure from the country had a compliance rate of 11%. Notably, DIMA

officials have cited relatively high absconding rates in the US in support

of the contention that ‘parole’ type arrangements are unsuitable

in the Australian context. [15]

Several important

findings and conclusions arose from the AAP trial.

Overall about 90%

of supervised noncitizens appeared in court compared to 71% of nonparticepants.

Those asylum seekers in the intensive, supervised program attended all

court hearings at a rate of 93%. Regular participants achieved an attendance

rate of 84%. Notwithstanding the fact that participant asylum seekers

were repeatedly told that they would be redetained in court if they were

ordered removed. [16]

The report further

noted that the most important factors encouraging compliance with hearing

requirements were representation by counsel and the presence of community

and family ties in the United States.

Notably, participants

and comparison groups of asylum seekers with equivalent community ties

attended hearings at about the same rate. Participant asylum seekers achieved

a higher rate than those released on parole because AAP, in assessing

those eligible to participate screened more effectively for community

ties.[17] The lesson to be drawn is not so much that

intensive supervision failed, but that in the case of asylum seekers its

stringent requirements proved gratuitous. Gratuitous, because asylum seekers

generally possess a strong vested interest in pursuing the application

process to its conclusion, and therefore pose a low absconding risk irrespective

of differences in level of supervision. [18]

Special attention

was drawn to the positive implications arising out of the AAP’s

practice of treating asylum seekers with dignity and trust:

“Their appreciation

fostered a great sense of obligation and therefore a willingness to

cooperate and comply. Many formed a bond with the AAP staff and wanted

to preserve the good relationship. Individual responses to the question

of why they complied included the following from asylum seekers: “obligation

to AAP,” “I told the AAP that I would show up so I did,”

“Although I thought the case was not in my favor, I made an obligation

to the AAP and I did not want to let them down.” Furthermore,

not only were they concerned about their own futures but also about

preserving the program for future asylum seekers. Two people said that

their performance in the program could help other detainees get released

in the future.” [19]

In summing up with

respect to its asylum seeker participants, the AAP report concluded that:

“Asylum seekers

do not need to be detained to appear for their hearings. They also do

not seem to need intensive supervision. If they had been better screened,

the asylum seekers released on parole from Elizabeth would have done

just as well as those under supervision. Detention of asylum seekers

is particularly unnecessary and unfair since they are so willing to

attend their hearings and since so many of them win their cases.”

[20]

The AAP constitutes

an empirical demonstration of how a well-tuned risk assessment procedure

applied in tandem with a graduated, comprehensive range of detention alternatives

can achieve very high compliance rates without imposing severe restrictions

on the movements of most asylum seekers.[21] Indeed,

and on the strength of the scheme, the VERA Institute of Justice recommended

that:

“A cost-effective

strategy for the INS in future might be to release asylum seekers to

a minimal level of supervision, rather than only to parole. This would

permit the agency to track the progress of the asylum seekers through

their hearings, to maintain contact with them, and to make provisions

to redetain those ordered removed at their final hearing. Depending

on an assessment of their risk of flight, asylum seekers could be released

again to a more intense level of supervision while they appeal the removal

order, subject to redetention if they violate the supervision program’s

rules. This strategy would protect the liberty of those who come to

the United States seeking asylum, reduce INS costs, and promote compliance

with the law.” [22]

Attention can be

directed to many other sources in support of this contention:

  • No unauthorised

    asylum seeker released on a bridging visa in Australia from 1996-1998

    failed to meet their reporting obligations to DIMA. [23]

  • A INS experiment

    in the US of 640 detainees released into the community, with about 95%

    complying on release. [24]

  • Since late 2000,

    the Asylum Seeker Project has been providing assistance to asylum seekers

    released from detention. None have absconded. [25]

Conclusions

The international

protection system represents an imperfect but ultimately compassionate

response to the plight of those desperately in need of surrogate protection.

It is however vulnerable to abuse, notably by those who seek its benefits

without genuinely meeting its criteria.

The Australian government

has adopted a hard-line in confronting the spectre of such abuse. It does

prevent all irregular asylum seekers from accessing the community - men,

women and children - but inevitably fails to prevent refugee status fraud,

and indeed the occasional escape.

The little absconding

data publicly available, when read in light of asylum seekers’ undeniable

incentives to comply, strongly suggests that well-considered alternatives

such as the TPR model would be highly successful if implemented. Ensuring

that Australia meets its human rights obligations to the international

community, they would also ensure that a high proportion of asylum seekers

meet their obligations to the Australian government.

However these models

will not succeed, and more importantly will never be given the opportunity

to succeed, unless the government can be convinced that they will adequately

address the issue of absconding. The critical first step towards this

goal is the development of a screening process that can be employed to

assess risk of flight. An integral part of assessing whether individual

asylum seekers are eligible for release, it should also form the basis

of ongoing risk evaluation once applicants are living in the community.

Practically speaking,

the biggest obstacle to any of this being implemented is the government’s

deeply held zero-tolerance mindset. This is from the 1994 JSCM report

Asylum, border control and detention, but its sentiments remain

entrenched today:

4.14 According

to DIEA, any alternatives to detention of unauthorised border arrivals

would need to offer the Department a level of access to persons, for

processing of the refugee application and for removal where refugee

claims are not sustained, which is similar to the access which is available

when border arrivals are held in detention. In this regard DIEA expressed

significant doubt that an alternative to detention could be relied upon

to satisfy this requirement. (p.110-111).

Allowing asylum seekers

to live unfettered in the community while their claims are in process

will invariably result in some individuals absconding. Even the most well-tuned

community release model will not afford a degree of access ‘which

is similar to’ that offered by mandatory detention – i.e.

absolute.

In practice, most

states accept a degree of absconding on balance, the moral obligation

to protect those in need being seen to outweigh the deleterious impact

of low-scale abuse on the system. Among other things, it is deemed unconscionable

to subject a large majority to the trauma of detention on account of the

abusive intent of a small minority who inevitably abscond. The present

Australian government seems not to share this attitude.

The threat of absconding

presents no insurmountable barrier to the successful implementation of

a comprehensive community release program. The fact that comprehensive

detention alternatives have not been established in Australia cannot be

attributed to a lack of viable proposals, but to a lack of political will.

Steven Columbus 1/9/2002


1.

Guideline 4 of the UNHCR revised guidelines on applicable criteria and

standards relating to the detention of asylum seekers, UNHCR, (February

1999).

2. Detention proposals, K. Rivett, 10 September 2001,

(http://www.refugeecouncil.org.au/Rivettmodel.htm)

3. “Howard stands by policies”, AAP, 25/1/2002.

4. Consider for example this from UNHCR’s Refugee

Children: Guidelines on Protection and Care, 1 January 1994, (http://www.asylumsupport.info/publications/unhcr/refugeechildren.htm):

“Families must be kept together at all times, which includes their

stay in detention as well as being released together”.

5. Personal conversation with Grant Mitchell (5 April,

2002).

6. See for example Australia - A continuing shame: the

mandatory detention of asylum seekers, Amnesty International, 1998 (http://www.amnesty.org.au/whatshappening/refugees/index-16.html):

“It is internationally accepted that protecting national security

and preventing illegal immigration can be legitimate grounds for exceptional,

temporary detention of unauthorised asylum-seekers in individually determined

cases. (See UNHCR EXCOM Conclusion No. 44, paragraph b, outlined in Chapter

2.1, supra.) Amnesty International acknowledges Australia's right to control

entry into the country and that there is a possibility that some asylum-seekers

may abscond into the community if released from initial detention. However,

this possibility should be assessed case by case.”

7. See Amnesty International's response to the White Paper

on asylum and immigration (UK) (www.amnesty..org.uk/action/camp/refugees/asylum.shtml)

and Australia - A continuing shame: the mandatory detention of asylum

seekers, Amnesty International, 1998.

8. This argument has been put forward by the Minister

for Immigration in a number of meetings with representatives of Amnesty

International.

9. As defined in the UNHCR Guidelines on the detention

of asylum seekers.

10. Security concerns have of course been very much a

live issue in the wake of September 11, and the correlation between asylum

seekers and terrorists was explicated very clearly by some Liberal MPs

in the ensuing election campaign. Notable in this regard are the recent

comments by ASIO, who following the processing of security clearances

for over 6000 refugee claimants (not one of which was rejected on security

grounds), asserted that it had found no evidence so far that asylum seekers

are a threat to Australia's security (http://www.abc.net.au/news/justin/nat/newsnat-22aug2002-63.htm).

11. Kenneth Rivett argues that it “would very seldom

be possible for a government to demonstrate that an asylum seeker, about

whom at first it would know almost nothing, was likely to abscond.”

12. See discussion of AAP program below.

13. “Refugee case will open way to claims”,

by Helen Tunnah, The New Zealand Herald (28/6/2002), http://www.nzherald.co.nz/storydisplay.cfm?thesection=news&thesubsection=&storyID=2049130.

See also for an up to the date overview, “Freedom’s Ramparts

on the Sea” The Detention of Asylum Seekers in New Zealand, The

Human Rights Foundation of Aotearoa New Zealand & Refugee Council

of New Zealand Inc. (May 2002).

14. Throughout, the author draws heavily on his experience

as a refugee determination officer with the New Zealand Refugee Status

Branch. In drawing attention to the positive outcomes of the Asylum Seeker

Project, The Hotham Mission notes that, “We have also had extremely

high figures in our clients complying with decisions and registering with

Compliance, much of this being built on the trust we have placed in our

clients.” During the period October 1999-September 2001 the Asylum

Seeker Project has worked with approximately 90 asylum seekers. Currently

it provides post-release support for 23 asylum seekers released on bridging

visas. No asylum seekers have absconded. For further information consult:

Transitional processing and reception (TPR) model, Justice for Asylum

Seekers Coalition.

15. Sea change: Australia’s new approach to asylum

seekers, USCR, February 2002, (http://www.refugees.org/pub/australia2.cfm)

p.25.

16. See Testing community supervision for the INS: An

evaluation of the Appearance Assistance Program. Volume 1, by E. Sullivan,

F. Mottino, A Khashu, and M. O’Neil, VERA Institute of Justice,

August 1, 2000. (http://www.vera.org/section4/section4_4.asp).

Participants were screened for involvement in one of two programs: intensive

or regular supervision. Intensive participants were initially detained

by the INS and then released to the AAP. That is they comprised noncitizens

who would otherwise have been detained throughout processing. Their position

is therefore analogous to that of irregular asylum seekers in Australia.

During supervision they experienced rigorous monitoring and ongoing re-evaluation

of absconding risk. Regular participants were those apprehended by the

INS but deemed eligible for release on recognizance. They entered the

program voluntarily.

17. Testing community supervision for the INS: An evaluation

of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino,

A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000.

(http://www.vera.org/section4/section4_4.asp) p.7.

18. Ibid. p. 29.

19. Ibid. p. 59.

20. Ibid. p. 31-32.

21. Testing community supervision for the INS: An evaluation

of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino,

A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000.

(http://www.vera.org/section4/section4_4.asp) p.30-31.

22. Testing community supervision for the INS: An evaluation

of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino,

A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000.

(http://www.vera.org/section4/section4_4.asp) p. 31-32.

23. 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)

24. AC Helton, ‘Reforming Alien Detention Policy

in the US’, 1992. In his discussion of absconding risk Rivett draws

attention to an earlier American study relating to community release:

“An instance of the confusion some supporters of the UNHCR position

have got into is when they quote the experiment by Arthur Helton, described

in a useful book edited by Dr Mary Crock and entitled Protection or Punishment?

(Sydney, Federation Press, 1993). Helton reports that in the United States

in 1992, 2000 detainees were interviewed, 32 per cent were released on

parole, and about 95 per cent of those applicants appeared later to have

their claims considered. But of course the experiment only gave such promising

results because 68 per cent of those who had been considered for release

were still detained. Such results could not have been obtained if the

risk of absconding had been disregarded in deciding which asylum seekers

should be detained in the first place.”

Which is consistent with the key thrust of this submission, that a well-balanced,

humane screening procedure is integral to the success of any viable detention

alternative.

25“Alternative approaches to asylum seekers: Hotham

Mission as a model of community release”, Submission to the HREOC

National inquiry into children in immigration detention, Grant Mitchell

(25/4/2002).

26. This consideration represents the common denominator

under girding most decisions to detain, irrespective of context. ECRE’s

Research paper on alternatives to detention: Practical alternatives to

the administrative detention of asylum seekers and rejected asylum seekers,

September 1997 (www.ecre.org/research/alterns.pdf),

asserts that: “As its starting point, the paper takes government

statements of the reasons for detaining asylum seekers at face value:

European governments say that they increasingly resort to detention because

they need to reduce the number of asylum seekers who abscond during the

asylum procedure or who fail to comply with deportation orders. The most

common ground for detention is thus “likelihood of absconding”,

a likelihood which is assessed broadly, with reference to nationality

or to the fact that the person perhaps entered the country with false

documents.

Last

Updated 14 July 2003.