Community arrangements for asylum seekers, refugees and stateless persons - Recommendations
Recommendation 2: The need to detain should be assessed on a case-by-case basis, taking into consideration individual circumstances.
Summary
Recommendation 2: The need to detain should be assessed on a case-by-case basis taking into consideration individual circumstances. That assessment should be conducted when a person is taken into immigration detention or as soon as possible thereafter. A person should only be held in a closed immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community and that risk cannot be managed in a less restrictive way.
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
2 Recommendations
Recommendation 1: The Australian Government should end the system of mandatory and indefinite immigration detention.
Recommendation 2: The need to detain should be assessed on a case-by-case basis taking into consideration individual circumstances. That assessment should be conducted when a person is taken into immigration detention or as soon as possible thereafter. A person should only be held in a closed immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community and that risk cannot be managed 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. If a risk to the community cannot be effectively mitigated, consideration should be given to whether the person can be placed in a less restrictive form of detention.
Recommendation 3: Australian Government policy should be reformed so that individuals in immigration detention who have received an adverse security assessment can be considered for release from detention, or for placement in a less restrictive form of detention.
Recommendation 4: The Australian Government should comply with its international human rights obligations by providing for a decision to detain a person, or a decision to continue a person's detention, to be subject to prompt review by a court. To comply with article 9(4) of the International Covenant on Civil and Political Rights, the court must have the power to order the person's release if their detention is not lawful. The lawfulness of their detention is not limited to domestic legality – it includes whether the detention is compatible with the requirements of article 9(1) of the International Covenant on Civil and Political Rights, which affirms the right to liberty and prohibits arbitrary detention.
Recommendation 5: The Australian Government should work towards a uniform model of community assessment and placement for asylum seekers, irrespective of their place or mode of arrival in Australia. An individual assessment of suitability for community placement should be conducted at the earliest opportunity post-arrival. Features of such a model should include:
- Permission for adult asylum seekers placed in the community to seek paid employment, irrespective of their level of vulnerability.
- Opportunities for engagement in meaningful activities, including permission to attend English language classes and to enrol in vocational training.
- A level of income support sufficient to meet basic needs for those who are unable to generate an independent income.
- Access to essential health care and counselling.
- Full access to formal education for school-aged children.
Recommendation 6: The Australian Government should introduce reforms so that refugees who have received adverse security assessments from the Australian Security Intelligence Organisation are provided with:
- Information sufficient for them to be reasonably informed of the basis of the adverse assessment.
- Access to merits review by the Security Division of the Administrative Appeals Tribunal.
- Procedural mechanisms to provide for effective merits and judicial review, including opportunities for a person to know the basis of their assessment and to make submissions on the content of that assessment, either directly or through an appropriate person such as a Special Advocate.
Recommendation 7: The Australian Government should develop a formal statelessness determination mechanism which recognises both de jure and de facto statelessness, and establish administrative pathways for the grant of substantive visas to stateless persons who have been found not to be refugees or otherwise owed protection.
Recommendation 8: A uniform national policy on the use of restrictive places of detention should be developed and should cover all places of detention that may be used for observation and segregation. Mental health and suicide prevention experts should be consulted in the development of this policy. The policy should specify that there is to be no co-location of people who are considered to be at risk of suicide or other forms of self-harm with people who are under observation due to aggressive or threatening behaviours.