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
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.
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 throughout 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 |
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1. Intitial Detention and Reception
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All unauthorised arrivals Checks:
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Client Services (Contracted service provider) Case worker/Casework Coordinator:
Additional management:
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Representative Assessment Panel; overseeing:
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Centre Contact Management
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Centre Services (contracted service provider)
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2. On-going detention
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For certain categories:
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Case worker:
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As above
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3. Open Hostel
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For certain categories:
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Case worker:
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As above
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|
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4. Structured Release Program
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For certain categories:
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Case worker:
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As above
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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.
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 modelled 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.
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
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.