Human Rights, Refugees and Asylum
Seekers

Australian Human Rights Commission, Sydney

Catherine Branson QC, 21 July
2011

---

Introduction

I would like to begin this morning by acknowledging the traditional owners of
the land on which we meet, the Gadigal People of the Eora Nation. I pay my
respects to their elders past and present.

It is an honour to have been invited to address you today about human rights,
refugees and asylum seekers.

As has been frequently and eloquently expressed to us by asylum seekers held
in immigration detention, many refugees and asylum seekers experience serious
breaches of their human rights prior to seeking refuge in Australia.

It should be a source of deep shame that many of these vulnerable people, who
have come to Australia to seek protection from persecution, experience further
breaches of their human rights as a consequence of our system of mandatory
detention.

Next year it will be twenty years since the Keating government introduced our
system of mandatory detention for people who arrive in Australia without a valid
visa, many of whom are refugees and asylum seekers. The Australian Human Rights
Commission has long advocated for an end to the system of mandatory detention
because it leads to breaches of fundamental human rights.

I recognise that refugees who have resettled in Australia and asylum seekers
living in the community also experience significant human rights challenges.
However, this morning I plan to focus my discussion on the human rights concerns
raised by Australia’s system of mandatory detention.

The vast majority of people currently in immigration detention are asylum
seekers. However, it is important to remember that there are also many refugees
held in immigration detention. Under international law, a refugee is a person
who is outside his or her own country and cannot return due to a well-founded
fear of persecution because of his or her race, religion, nationality,
membership of a particular social group or political opinion. Importantly, as
soon as a person in this situation crosses an international border, he or she is
a refugee.

While we oppose the mandatory detention of both asylum seekers and refugees,
it is particularly concerning that significant numbers of recognised refugees
are held in immigration detention for often prolonged periods. This includes
people who have been recognised as refugees by the United Nations High
Commissioner for Refugees but who have not yet had their cases assessed in
Australia; people who are waiting for security assessments; and people who
remain in detention following an adverse security assessment.

The human impact of immigration detention

I would like to start by demonstrating the human impact of detention as
expressed by people held in immigration detention.

Over the last year, the Commission has visited detention facilities at five
locations around Australia – Christmas Island, Darwin, Leonora, Villawood
and Curtin. We have spoken in private with very large numbers of people in
detention. We have heard about and seen first-hand the debilitating effects of
prolonged detention.

In February when we visited Villawood, people expressed to us their distress
at being held in detention there. Some people told us that being in detention
had made them feel as if they were criminals; others said detention made them
feel like animals.^[1] We heard clearly
of the impact that prolonged detention was having on mental health, with one
young man saying: “My hope has all gone now. I’m young but
I’m feeling that my life is destroyed. And my thinking is destroyed. There
were things that I used to be able to do that I can no longer
do.”^[2]

More recently, Commission staff visited Curtin immigration detention centre
in the remote Kimberley region of Western Australia. The impact of prolonged
detention on mental health was palpable during this visit. One man told us:
“We feel that we have lost everything here – our hope, our
health, our memories, our names, our ability to help our families, our minds. We
are more than half way to dead now. We are all dying here, from the inside out.
We see others who have gone mad and think that we are going there
too.”^[3] Another
expressed a sentiment that we often hear, that asylum seekers are so damaged by their experience of detention will not be able to make a
contribution to Australian society if they eventually come to live amongst us.
This man said: “If I go mad in here, I’m no use to anyone. Not to
Australian society if I’m allowed to stay, and not to my family either
way. When I try to talk with my family I can’t because I just choke up
now. I cannot speak with them for the pain. Twice I have gone to kill myself and
my friends have helped me to not do it. Please be our voice out of
here.”^[4]

Immigration detention can have a devastating impact on the health and mental
health of already vulnerable people.

Immigration detention – the national context

Before I discuss the key human rights issues raised by Australia’s
system of mandatory detention, I would like to provide some context.

Today there are over 4000 asylum seekers and refugees in immigration
detention facilities around Australia. The past two or three years have seen a
significant increase in the number of people held in immigration detention in
Australia, with approximately 6000 refugees and asylum seekers held in
immigration detention in January this year. Thankfully this number is
decreasing, due in part to the placement of a significant number of people into
community detention, and to the finalisation of a large number of outstanding
security clearances.

However, the people who remain in immigration detention are being detained
for increasing periods of time. Of those asylum seekers and refugees currently
in detention, approximately 70% have been detained for longer than 6 months and
about 30% have been detained for longer than 12 months.

The increasing length of detention is a serious concern because of the
demonstrated link between prolonged detention and deteriorating mental health.
In recent months there have been five apparent suicides, and a worrying number
of self-harm incidents across detention facilities, including attempted
hangings, lip sewing, ingestion of chemicals, people cutting themselves and
voluntary starvation.

Over the last few months we have also seen some very disturbing incidents in
immigration detention centres including riots, fires, and break-outs. The
Commission does not condone violence or the destruction of property. However, it
is important to look behind the disturbances to try and understand their causes.
In particular, we need to look at the impacts of prolonged and indefinite
detention on the mental health and wellbeing of people in detention. These kinds
of incidents are, unfortunately, what happens when people are locked up for
indefinite periods of time in remote locations.

Key human rights issues raised by immigration detention

Australia has one of the strictest immigration detention systems in the
world. It is mandatory, it is not time limited and people are not able to
challenge the need for their detention in a court.

In analysing the situation of people in immigration detention, the Australian
Human Rights Commission always takes as its starting point the rights set out in
the international agreements that Australia has voluntarily agreed to abide by,
including the International Covenant on Civil and Political Rights and
the Convention on the Rights of the Child. Repeatedly we have failed to
meet our obligations under treaties such as these to refugees and asylum seekers
who are held in immigration detention.

We have serious concerns about the conditions of detention in some facilities
– including around issues such as the impact of detention in a remote
location, overcrowding, limited access to telecommunications and inadequate
access to activities and excursions. However given the topic of today’s
discussion I will concentrate on the human rights impact of mandatory, prolonged
and indefinite detention. I will also comment briefly on the situation of
children in immigration detention and on some emerging issues of concern.

Mandatory detention

Let us start with mandatory detention itself. For many years the Commission
has called for an end to the system of mandatory detention because it breaches
our obligation to refrain from subjecting anyone to arbitrary detention.

The Commission acknowledges that the use of immigration detention may be
legitimate for a strictly limited period of time, for specific purposes.
However, the system of mandatory detention requires that all people who arrive
in Australia without a valid visa are detained, regardless of their individual
circumstances.

Under Australia’s international human rights obligations, to avoid
being arbitrary, detention must be necessary and reasonable in all the
circumstances of the case, and a proportionate means of achieving a legitimate
aim. If that aim could be achieved through less invasive means than detaining a
person, detention will be rendered arbitrary.

This means that there should be an individual assessment of the necessity of
detention for each person. A person should only be held in a detention facility
if they are individually assessed as posing an unacceptable risk to the
Australian community and if that risk cannot be managed in a less
restrictive way. Otherwise, they should be allowed to live in community-based
alternatives while their immigration status is resolved. This assessment should
be done as soon as possible after a person is detained. Currently this is not
happening – most asylum seekers are held in detention for the entirety of
the processing of their asylum application and security checks are done at the
end of the process.

Prolonged and indefinite detention

As I mentioned earlier, the Commission is seriously troubled by the high
number of people being held in immigration detention for prolonged periods of
time.

A range of factors have contributed to lengthy periods in detention. These
include the ongoing impact of last year’s suspension of processing;
serious delays in processing of asylum applications; and lengthy timeframes for
security assessments conducted by ASIO.

The critical overarching factor is that Australia’s mandatory detention
system permits indefinite detention without judicial review. People in detention
often express disbelief and a sense of injustice that in a country like
Australia, they could be detained indefinitely without the ability to challenge
their detention before a judge.

Australia’s international human rights obligations require that anyone
deprived of their liberty should be able to challenge their detention in a
court. The court must have the power to order the person’s release if the
detention is not lawful. Importantly, the lawfulness of the detention is not
limited to compliance with Australia’s domestic law – it extends to
whether the detention is arbitrary in contravention of international law.
Currently, in breach of its international obligations, Australia does not
provide such review.

Children in detention

You will all be aware that holding children in immigration detention has been
the source of great controversy for many years. In 2004, this Commission
released the report of the National Inquiry into Children in Immigration
Detention, which documented very serious breaches of the human rights of a large
number of children held in immigration detention between 1999 and 2002.
Following the release of this report, some improvements were made, including the
introduction of the system of community detention – placing asylum seekers
into community-based accommodation where they can live a largely independent
life.

However, until recently, the system of community detention was rarely used,
and by late last year there were over 1000 children held in secure immigration
detention facilities.

Over the past twelve months we have met children who had been in immigration
detention in remote locations for prolonged periods of time; families living in
very overcrowded accommodation on Christmas Island; children who had not been
able to attend school for up to four months while detained in Darwin; and, also
in Darwin, children who had not been on an external excursion from their
detention facility for a period of some months. Families and children spoke to
us very clearly of their distress at their situation.

We have found that even in situations where children in detention have access
to external education and excursions, the very fact that they are detained
– that they have to return to a secure detention facility at the end of
each day – can have a detrimental impact on their well-being.

The Commission welcomed Minister Bowen’s announcement in October last
year that a significant number of families and unaccompanied minors would be
placed into community detention over the following months. By the end of June,
58% of children were living in community detention rather than in secure
immigration detention facilities.

The use of community detention is not radical. Last year’s decision to
place families and unaccompanied children into community detention was
essentially a decision to implement current government policy. Government
guidelines say that all children should be assessed for community detention as
soon as they are detained. The move towards increased use of community detention
has been an important and praiseworthy development. We continue to urge the
government to extend community detention to all families and unaccompanied
minors as soon as possible. For under the Convention on the Rights of the Child,
which Australia has agreed to respect, children must only be detained as a
matter a last resort and for the shortest appropriate period of time.

Alternatives to detention

We believe that other individuals should also be placed in community
detention as a matter of priority. Current government policy says that
vulnerable people, including people who have experienced torture and trauma and
people with significant physical or mental health problems should be prioritised
for community detention. In visits to immigration detention facilities over the
past twelve months, the Commission has met a large number of people who have met
these criteria and yet who remain in detention. These people include survivors
of torture and trauma; people with serious mental health issues, including
people with major depression and post-traumatic stress disorder; and people with
serious physical health problems, including people with visible war injuries and
people who have lost limbs.

These people should not be in immigration detention centres.

We continue to urge the government to consider expanding the community
detention program to include these vulnerable groups of people as an immediate
priority.

We know from bitter experience that prolonged detention causes people serious
and sometimes irreparable mental harm. We must not forget that there are people
in our communities who remain damaged from their experience of detention up to
ten years ago. Our government is still paying compensation to people whose human
rights were not protected while they were in immigration detention at this time.

There are alternatives to prolonged and indefinite detention. Alternatives
that have been tried and tested in Australia and elsewhere. Community-based
alternatives can be cheaper and more effective, and are certainly more humane
than holding people in immigration detention facilities for prolonged periods.
We encourage the government to use all viable alternatives to facility based
detention, including both community detention and bridging visas.
Australia’s international human rights obligations require consideration
of the use of community-based alternatives so that detention is truly always a
matter of last resort.

Emerging issues of concern

Before I finish this morning, I would like to consider briefly two emerging
issues of concern.

The first is the situation of people currently in immigration detention who
have received adverse security assessments. There are currently over 20 people
in detention facilities in Australia in this situation, including one family
with three children, where both parents have received an adverse assessment.
Under current immigration law and policy, these people will not be granted visas
or released into the community. But as they have been recognised to be refugees,
Australia’s non-refoulement obligations prohibit us from returning these
people to their countries of origin. We are seriously concerned at the length of
time that people with adverse assessments have remained in detention waiting for
a solution to be found. Some people have been detained for approximately two
years since receiving an adverse assessment. Currently people in this situation
truly are facing indefinite detention – particularly concerning in the
case of the family I have mentioned whose children also remain in detention.

In response to our recent report on our visit to Villawood, the Department of
Immigration and Citizenship said that the government is ‘actively
exploring durable solutions for individuals with adverse security assessments
that are consistent with Australia's international obligations’. A
solution is a matter of urgency, given the length of time that many people with
adverse assessments have been held in detention. We believe consideration should
be given to placing people who have received adverse assessments into less
restrictive places of detention and community detention, with the imposition of
conditions if necessary.

Another emerging issue that I will be happy to discuss further during
question time is that of transferring asylum seekers who have arrived by boat to
third countries. I have some serious concerns about the pending agreement with
Malaysia.

Australia is obliged under the Refugee Convention to ensure that people who
arrive on our shores seeking asylum are not returned to places where they face
persecution and danger. Malaysia is not a signatory to the Refugee Convention
and has no such obligation. This increases the risk that those people who are
transferred to Malaysia could be returned dangerous situations in their
countries of origin, in breach of Australia’s international obligations.
We also have serious concerns about how asylum seekers in detention in Malaysia
will be treated, including about whether people who are transferred there will
be detained; have work rights in the community, or be able to go to school if
they are children.

I am equally troubled by the ongoing detention of people who have arrived
since the announcement in early May of the negotiations with Malaysia. It is
unclear whether this group will in fact be transferred to Malaysia once
negotiations are complete. In the meantime they remain in detention without
their claims for asylum being processed, which could amount to arbitrary
detention.

Conclusion

In Australia, we have a relatively small population of asylum-seekers, most
of whom should be able to be live in the community while their applications are
assessed. Many of those people currently in detention will be found to be
refugees and will come to live with us in our communities. They, like the many
thousands of refugees before them who Australia has welcomed, will make
significant contributions to life in Australia. We have a responsibility to
ensure that asylum seekers and refugees are not irreparably harmed as a
consequence of lengthy periods in immigration detention in Australia.

---

^[1] Man in detention in Hughes
compound, Villawood IDC; Man in detention in Fowler compound, Villawood
IDC.

^[2] Man in detention in Fowler
compound, Villawood IDC.

^[3] Afghan
man in detention, Curtin IDC.

^[4] Afghan man in detention, Curtin IDC.