Community arrangements -asylum seekers, refugees and stateless persons

Community arrangements for asylum seekers, refugees and stateless persons

Observations from visits conducted by the Australian Human Rights Commission from December 2011 to May 2012

• Back to Contents

• 1 Summary

• 2 Recommendations

• 3 Introduction

• 4 Australia's mandatory detention and excision regime 4.1 The origins and impact of mandatory immigration detention and excision 4.2 Recent developments

• 4.2 Recent developments

• 5 Community arrangements for asylum seekers, refugees and stateless persons

• 6 Some barriers to use of community arrangements

• 7 Closed detention

4 Australia's mandatory detention and excision regime

Mural, Villawood Immigration Detention Centre.

4.1 The origins and impact of mandatory immigration detention and excision

This year marks the twentieth anniversary of Australia's introduction of mandatory immigration detention and the eighteenth anniversary of the system of mandatory, indefinite immigration detention. In the current context, it is apt to recall that mandatory detention was introduced in reaction to the arrival of asylum seekers by boat, with concerns about a potential ‘influx' spurring bipartisan support for increasingly tough measures on persons who arrived in Australia without a visa. [8]

Amendments to the Migration Act 1958 (Cth) (Migration Act) in 1992 both required the detention of certain ‘designated persons' and prevented any judicial review of detention by providing that ‘a Court is not to order the release from custody of a designated person'. [9] These amendments did, however, impose a 273 day time limit on immigration detention. [10]

Additional legislative amendments in response to further boat arrivals in Australia commenced in 1994. The 1994 legislation:

• broadened the application of mandatory detention to all persons who either arrived without a visa or who were in Australia on an expired or cancelled visa
• removed the 273 day time limit on detention, instead providing that an ‘unlawful non-citizen' could only be released from detention on the grant of a visa, removal or deportation from Australia

• introduced a system of bridging visas to allow release from immigration detention in certain circumstances. [11]

The next major change to Australia's system for responding to asylum seekers who arrive by boat occurred in September 2001. A raft of amending legislation was enacted at this time in response to what became known as ‘the Tampa crisis' [12] and in pursuit of the so-called ‘Pacific Solution'. [13] Among other things, the 2001 legislation:

• designated Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands as ‘excised offshore places'
• prohibited persons who arrived in Australia via such places, or ‘offshore entry persons', from making a protection visa application, other than at the discretion of the Minister
• provided for the transfer to third countries for processing of their protection claims of asylum seekers who are intercepted at sea or reach an ‘excised offshore place'.

In more recent times, Australia has taken significant steps towards implementing a system of community placement on the mainland for asylum seekers and refugees who have arrived in Australia by boat. As noted above, this is a welcome development, aspects of which align with recent Commission recommendations and international human rights standards.

Nevertheless, Australia retains a legal and policy framework of excision and of mandatory, indefinite immigration detention. Under this framework, any person who is not a citizen and does not hold a valid visa must be detained, regardless of his or her individual circumstances. For people who arrive on the Australian mainland, this requirement is contained in the Migration Act. [14] For people in this situation who arrive at an ‘excised offshore place', such as Christmas Island, detention is discretionary under the Migration Act, but current Australian Government policy is that all such people are detained. [15] Further, as noted, immigration detention in Australia is not subject to a time limitation. Once detained, non-citizens who do not hold valid visas must be kept in detention until they are removed from Australia or granted a visa. [16] It would be legal under Australian law to hold someone in immigration detention for the rest of his or her life, as long as detention continues to be for one of the purposes in the Migration Act. [17]

The Commission has raised concerns over many years that the system of mandatory, indefinite detention leads to breaches of Australia's international human rights obligations, including the prohibition on arbitrary detention. Concerns about Australia's system of mandatory, indefinite immigration detention are also held by a number of United Nations bodies. [18]

Australia has binding obligations to ensure that no one is subjected to arbitrary detention. [19] To comply with international law, detention must be a proportionate means to achieve a legitimate aim. In determining whether detention is proportionate, consideration must be had to the availability of alternative means for achieving that end which are less restrictive of a person's rights. [20] Detention should only be used as a last resort, [21] and when it is used, it should be the least restrictive form available and should not continue beyond the period for which it can be justified. [22]

The Commission recognises that immigration detention may be legitimate for a strictly limited period of time. However, the need to detain a person should be assessed on a case-by-case basis taking into consideration their individual circumstances.

To avoid detention being arbitrary, there should be an individual assessment of the necessity of detention for each person, as soon as possible after a person is taken into detention. A person should only be held in an immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community and that risk cannot be met in a less restrictive way. Otherwise, they should be permitted to reside in the community while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks.

The Commission has also repeatedly raised concerns about the significant human impact of mandatory immigration detention. During visits to immigration detention facilities over many years, people in detention have repeatedly told the Commission of the detrimental impact of lengthy detention upon their physical and mental health, and of the anxiety and desperation which they experience due to the indefinite nature of their detention. People have often spoken to the Commission about the psychological impacts of their prolonged detention, including high levels of sleeplessness, loss of concentration, feelings of hopelessness and powerlessness and thoughts of self-harm or suicide. The Commission heard of the devastating impact of detention again during the visits that are the subject of this report. [23]

Artwork by man in detention, Melbourne Immigration Transit Accommodation.

4.2 Recent developments

Because of Australia's system of mandatory, indefinite immigration detention, asylum seekers who arrive in Australia by boat spend at least some time, and often protracted periods, in immigration detention. An increased detention population, comprising many people who had experienced lengthy periods of detention, led to significant overcrowding and heightened tensions in immigration detention facilities during 2010 and early 2011.

As tensions rose, critical incidents in immigration detention became common. Self-harm in detention has occurred at high rates for much of the past two years and has involved instances of lip-sewing, self-laceration, voluntary starvation and ingestion of chemicals. [24] There have also been eight deaths in immigration detention, six of which appear to have been suicides. [25] Further, detention facilities have been the scenes of violent protests, including at Christmas Island Immigration Detention Centre (Christmas Island IDC) in March 2011 and at Villawood IDC in April 2011.

A number of inquiries and investigations have recently been conducted into aspects of the immigration detention network, with a focus on critical incidents. Additionally, in 2010 and 2011 the High Court of Australia handed down two decisions which had a significant impact on Australian asylum seeker and refugee law and policy.

(a) The Hawke-Williams review

On 18 March 2011, Minister for Immigration and Citizenship, the Hon Chris Bowen MP, announced an independent review would be conducted by Dr Allan Hawke AO and Ms Helen Williams AO into the incidents including riots that occurred at Christmas Island IDC in March 2011. On 21 April 2011, the Minister announced that the scope of the review would be expanded to include the protests that took place at Villawood IDC on 20-21 April 2011.

The review's terms of reference covered:

• the respective roles and responsibilities of DIAC and the detention services provider Serco in managing these detention centres
• the means by which breaches of security were achieved
• prior indicators which may have assisted in preventing the incidents
• the adequacy of infrastructure, staffing and case management at the relevant facilities
• training and supervision of DIAC and Serco staff
• communication and coordination between relevant government agencies and contractors
• the appropriateness of the measures taken in response to the incidents.

The report of this review was released on 31 August 2011. [26] It contains 48 recommendations aimed at preventing further critical incidents in detention, all of which DIAC agreed to. The Minister for Immigration and Citizenship has asked DIAC to report on its progress in implementing the recommendations by mid-2012. [27]

(b) The NSW coronial inquest

Also last year, the NSW Coroner conducted an inquest into the deaths of Mr Josefa Rauluni, Mr Ahmed Al-Akabi and Mr David Saunders at Villawood in 2010. Magistrate Mary Jerram handed down the findings of the inquest on 19 December 2011. [28] Her Honour found that the three men took their own lives. Her Honour observed that people in immigration detention centres, due in part to the loss of their families, freedom, status and work, must be ‘at much greater risk of suicide than the general community'. [29] For this reason, those responsible for people in detention ‘owe a greater than normal duty of care to those persons regarding their health and wellbeing'. [30] In Her Honour's view, DIAC, Serco and the detention health services provider IHMS all warranted criticism for the way in which that duty of care was fulfilled with respect to the three men who died. [31]

Magistrate Jerram found that some individual DIAC, Serco and IHMS staff members were ‘careless, ignorant or both, and communications were sadly lacking' in relation to the men who died, but that no individual acted in bad faith deliberately. [32] Rather, in Her Honour's view, a series of systemic failures led to the deaths. These included a lack of appropriate screenings and protocols to minimise risk for the deceased men; a lack of consistency arising from high staff turnover; a failure to record or share important information and ‘startling examples of mismanagement'. [33]

(c) The Joint Select Committee on Australia's Immigration Detention Network

The Commonwealth Parliament established a Joint Select Committee (JSC) on Australia's Immigration Detention Network on 16 June 2011. The JSC was charged with conducting a comprehensive inquiry into various aspects of Australia's immigration detention network, including its management, resourcing, potential expansion, possible alternative solutions, the government's detention values, the effect of detention on people detained and various issues relating to riots and disturbances in detention. [34]

The JSC handed down a substantial report of its inquiry on 30 March 2012. [35] The report contains 31 recommendations, which include that:

• Following initial health, identity, character and security checks, asylum seekers should be granted bridging visas or released into community detention.
• People held in immigration detention should be accommodated in metropolitan rather than remote facilities wherever possible.
• The Minister for Immigration and Citizenship should be replaced as guardian of unaccompanied minors in immigration detention.
• Consistent child protection arrangements should be implemented across the detention network.
• Effective review mechanisms should be made available to people who have received adverse security assessments.
• IHMS staffing levels within immigration detention should be reviewed.

At the time of publication of this report, the government had yet to respond to the JSC's report and its recommendations.

(d) Challenge to the dual processing of claims for asylum

In 2010, the High Court of Australia heard and decided Plaintiff M61/2010E v Commonwealth. [36] In this case, two Sri Lankan asylum seekers who arrived in Australia by boat challenged the separate system of processing asylum claims which applied to people who arrived in Australia at an ‘excised offshore place' like Christmas Island.

The plaintiffs argued that they were not afforded procedural fairness in the assessment of their refugee claims or the merits review of the negative decisions which arose from those claims. They argued that the officers conducting the primary assessments and reviews erred in law by considering themselves not to be bound by the provisions of the Migration Act or the decisions of Australian courts. The Commonwealth and the Minister for Immigration and Citizenship argued that refugee status assessment and review processes applying to people who arrived in Australia at an ‘excised offshore place' are an exercise of non-statutory executive power and therefore there was no obligation on officers conducting these processes to afford applicants procedural fairness or to decide applications according to law. [37]

The High Court unanimously decided that the refugee status assessment and review processes are not an exercise of non-statutory executive power but rather are ‘steps taken under and for the purposes of the Migration Act'. [38] Officers responsible for undertaking the assessments and reviews in the immediate case were therefore bound to act according to law and to afford the plaintiffs procedural fairness. This decision resulted in access to Australian courts for judicial review being granted to asylum seekers who arrive in Australia by boat at Christmas Island and other ‘excised offshore places'.

On 25 November 2011, the government announced that Australia would return to a policy of using a single statutory system for processing asylum claims. [39] The new streamlined arrangements commenced on 24 March 2012. [40] All claims for protection are now assessed according to the refugee status determination process established by the Migration Act, regardless of the place or mode of arrival of the person lodging the claim. All asylum seekers in Australia now have access to the same opportunities to appeal a negative decision in the Refugee Review Tribunal or Administrative Appeals Tribunal. [41] In addition, a scheme for assessing complementary protection claims also commenced on 24 March 2012. [42]

The Commission welcomed Australia's return to a single system for processing claims for protection, which should lead to a fairer, more efficient and more cost-effective system. [43] However, the Commission remains concerned that the provisions relating to ‘excised offshore places' remain in the Migration Act, allowing the government to return to a policy of dual processing at any time. [44]

(e) Challenge to the Malaysian arrangement

In May 2011, the Australian Government announced the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, whereby up to 800 asylum seekers who arrived in Australia by boat would be removed to Malaysia for processing of their claims for protection. Under the arrangement, the Australian Government agreed to accept 4000 recognised refugees from Malaysia for resettlement in Australia.

In Plaintiff M70/2011 v Minister for Immigration and Citizenship, the validity of this arrangement was challenged by two asylum seekers who were subject to transfer under the arrangement. [45] The High Court held that the Minister for Immigration and Citizenship's declaration of Malaysia as a third country to which asylum seekers who arrive in Australia by boat can be removed was invalid, and ordered that the Minister not remove the plaintiffs from Australia to Malaysia.

The majority of the High Court concluded that the Minister could only validly declare a country under s 198A of the Migration Act to which asylum seekers can be taken for the processing of their claims if that country satisfies the criteria set out in that section as a matter both of law and of objective fact. These include that the third country must provide:

• access to effective procedures for the processing of asylum claims
• protection for asylum seekers pending a decision on their claims for refugee status
• protection for people found to be refugees, pending their voluntary return to their countries of origin or their resettlement in other countries.

The High Court found that Malaysia was not, and is not, obliged under law to provide these protections. Malaysia is not a party to the Convention Relating to the Status of Refugees or its 1967 Protocol. The arrangement between the Australian and Malaysian Governments, and the purported protections contained therein, were not legally binding. [46] Further, domestic Malaysian law does not recognise the status of refugees.

The High Court also held that the removal of unaccompanied minors who arrive in Australia by boat seeking asylum, or the taking of children in this situation to another country pursuant to s 198A of the Migration Act, cannot lawfully be effected without the written consent of the Minister for Immigration and Citizenship (or his delegate). It confirmed that any decision to provide that consent would be subject to judicial review. [47]

In response to the decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, on 12 September 2011, the Prime Minister and the Minister for Immigration and Citizenship announced that the Australian Government would introduce amendments to the Migration Act to ‘restore the understanding of the third country transfer provisions of the Migration Act that existed prior to the High Court's decision on 31 August 2011'. [48] The Ministers also announced an intention to amend the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act), ‘to enable decisions to be made with respect to minors'. [49]

The amendments to the Migration Act and IGOC Act were introduced by the government on 21 September 2011, but have not yet passed Parliament.

(f) Further attempts to allow removal of asylum seekers to third countries

In two incidents over the space of a week in July 2012, a known 94 asylum seekers tragically drowned en route to Australia. This led to intense parliamentary debate surrounding the reintroduction of proposed legislative amendments to enable the removal of asylum seekers who arrive in Australia by boat to third countries for the processing of their protection claims. [50] The amendments were not passed.

The Prime Minister of Australia, the Hon Julia Gillard MP, subsequently announced the appointment of an Expert Panel on Asylum Seekers to provide recommendations to the Australian Government on policy options to prevent asylum seekers risking their lives on dangerous boat journeys to Australia. [51] The Expert Panel will take into account Australia's international obligations and right to maintain its borders. [52] It will consult with a Multi-Party Reference Group, amongst others, and is due to report before the end of August 2012.

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[50]f Migration Legislation Amendment (The Bali Process) Bill 2012 (Cth) at [51] on and Citizenship, Transcript of Joint Press Conference, Canberra (28 June 2012), at https://humanrights.gov.au/our-work/commission-general/broken-link y retired Air Chief Marshall Angus Houston AC AFC and also comprises Mr Paris Aristotle AM, Director of the Victorian Foundation for Survivors of Torture, and Professor Michael L'Estrange AO, Director of the National Security College. [52] [52] of Reference, at https://humanrights.gov.au/our-work/commission-general/broken-link ; United Nations Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/AUS/CO/4 (2009), para 25, at