Community arrangements for asylum seekers, refugees and stateless persons

Community arrangements for asylum seekers, refugees and stateless persons

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

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• Back to Contents
• 1 Summary
• 2 Recommendations
• 3 Introduction
• 4 Australia’s mandatory detention and excision regime
• 5 Community arrangements for asylum seekers, refugees and stateless persons
  • 5.1 Benefits of community arrangements and effective international examples
  • 5.2 The development of community arrangements in Australia
  • 5.3 The Commission’s visits and interviews
• 6 Some barriers to use of community arrangements
• 7 Closed detention

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5 Community
arrangements for asylum seekers, refugees and stateless persons

It
was in this context that the expansion of the use of community arrangements in
Australia occurred.

View from balcony, flat occupied by family in community detention.

5.1 Benefits
of community arrangements and effective international examples

There are a host of benefits associated with community arrangements for
asylum seekers, refugees and stateless persons. Community arrangements are more
closely aligned with international human rights law and standards than models of
indefinite closed immigration detention. They also provide for far more humane
treatment of people seeking protection.

There are further practical benefits. For example, community placement can be
much cheaper than closed
detention.^[53] Effective community
arrangements allow for readier transition to life as an Australian resident for
people who are granted protection, and people who are found not to be owed
protection have been shown to be more willing and able to return to their
countries of origin when they have been living in the community than when held
in closed detention.^[54] As
community arrangements entail fewer risks to the health, mental health, safety
and wellbeing of asylum seekers, refugees and stateless persons, they are likely
to lead to lower rates of suicide and self-harm as well as fewer claims for
compensation.^[55] There are also
very low rates of absconding from community
arrangements.^[56] Finally, community placements allow for the full enforcement of immigration law
and conditions can be applied within a community setting which enable mitigation
of any identified risks.

Community arrangements for asylum seekers, refugees and stateless persons
have been in use by countries around the world for many years. For example:

• In Canada, people may be released from immigration detention on bail or bond
  and incur negative financial consequences if they breach the conditions of their
  release, which might include reporting requirements or handing over travel
  documents.^[57]
• In Spain, asylum seekers are either released into the broader community or
  accommodated in an open reception centre from which they are free to come and
  go. They are given a small monthly allowance and permitted to access medical and
  psychological services, a social worker, legal aid and educational
  opportunities. Asylum seekers can be housed in reception centres for up to six
  months, after which time they are assisted to find independent housing and
  employment or, if they are vulnerable, they may apply for an
  extension.^[58]
• Sweden uses a ‘reception program’ under which asylum seekers are
  issued with identification documents on arrival which are used by immigration
  officials to track their cases. After spending around a week in a transit or
  processing centre, asylum seekers are released into the community and can use
  their documentation to access some basic services. They are permitted to work in
  a range of circumstances, and if they do, they must contribute to their costs of
  living.^[59]
• New Zealand uses a ‘tiered system’ of monitoring and detention.
  Reporting and residence requirements can be used to manage people’s cases
  in the community, and if asylum seekers living in the community fail to comply
  with certain conditions, they are subject to arrest and
  detention.^[60]

5.2 The
development of community arrangements in Australia

As noted above, the Australian Government has made significant progress over
the past two years towards implementing a system of community arrangements for
asylum seekers, refugees and stateless persons who would otherwise be held in
closed detention.

This progress builds on measures introduced by previous Australian
Governments, in particular the introduction of the community detention mechanism
in 2005. At this time the Migration Act was amended to give the Minister for
Immigration and Citizenship the power to make a ‘residence
determination’ in respect of a person in immigration detention, which
allows that person to live in a specified residence in the
community.^[61] A person in this
position is said to be in ‘community detention’.

On 29 July 2008, the then Minister for Immigration and Citizenship, the Hon Senator
Chris Evans MP, announced the New Directions in Detention policy. Under the
New Directions policy, immigration detention is to be used as a last resort and
for the shortest practicable period, and there is a presumption that people will
be permitted to reside in the community unless they pose an unacceptable
risk.^[62] This policy was not
enshrined in legislation, and prior to late 2010, very few people were
transferred from closed detention into the community prior to resolution of
their status.^[63]

On 18 October 2010, the Australian Government announced that it would begin
moving significant numbers of children and their families into community
detention.^[64] A year later, on 25
November 2011, the government announced that following initial health, security
and identity checks, selected asylum seekers who arrive in Australia by boat
would be placed into the community while their asylum claims were
assessed.^[65] This was to be
achieved through extending the use of community detention to vulnerable
individuals in addition to children and families. It was also to be achieved by
granting bridging visas, for the first time, to people who had arrived in
Australia by boat.^[66]

People in community detention remain in immigration detention as a matter of
law. However, they are generally not under supervision and can move about in the
community subject to conditions attached to their residence determination. Such
conditions might include, for example, a curfew, the requirement to sleep at a
specified residence every night, travel restrictions and requirements to report
regularly to DIAC. Accordingly, the community detention system allows for people
to be subjected to fewer restrictions on their liberty than in closed detention,
while at the same time mitigating risks and promoting compliance with
immigration processes.

People who have been granted bridging visas are not in immigration detention
and can live lawfully in the community. A bridging visa can be granted to a
person while their application for a substantive visa is being processed, while
arrangements are being made for a person to leave Australia or at other times
when a person doesn’t have a visa. Generally people granted bridging visas
are not subject to any restrictions on their liberty. However conditions may be
placed on bridging visas, such as reporting
requirements.^[67]

The government has transferred significant numbers of people out of closed
immigration detention facilities since the announcements of 2010 and 2011 were
made. Between 18 October 2010, when the government announced that it would
significantly increase the number of families and children moving into community
detention, and 19 July 2012, 4234 people had been approved for community
detention, including 2008
children.^[68] There were 1320
people, including 431 children, in community detention as at 19 July
2012.^[69] Between 25 November 2011,
when the first bridging visas were granted to asylum seekers who arrived in
Australia by boat, and 19 July 2012, 3211 people from this class had been
granted bridging visas.^[70] There
were 2418 people who had arrived in Australia by boat living in the community on
bridging visas as at 19 July
2012.^[71]

5.3 The
Commission’s visits and interviews

Flat occupied by family in community detention.

Commission staff conducted a series of visits and interviews with asylum
seekers, refugees and stateless persons in community arrangements between
December 2011 and May 2012.^[72] During these visits, the Commission met with couples with children, a
multi-generational family group, unaccompanied minors, vulnerable adult men and
one vulnerable adult woman. These people came to Australia from Afghanistan, Sri
Lanka, Iran and Iraq. Some of them were stateless. The people with whom the
Commission met included school students, babies and toddlers, older people,
people who had experienced torture and trauma and people with disabilities.

The comments and recommendations which follow are based on observations made
during the Commission’s visits and interviews. The Commission has not
conducted a comprehensive review of community arrangements and has only met with
a small sample of people living in the community. However these observations
allow an informed assessment of the impact of community arrangements on asylum
seekers, refugees and stateless persons.

The
Commission appreciates that there are significant logistical and other
challenges involved in transferring large numbers of people from closed
detention to community arrangements, and that it is critical to the success of
these initiatives that supporting community infrastructure is sufficient to meet
demand. Matters relating to service provider capacities, availability of
accommodation and other logistical challenges have not been addressed in this
report.

(a) Strengthening
the use of community arrangements for asylum seekers, refugees and
stateless persons

 

The Commission has long argued that community
arrangements ought to be the norm for asylum seekers and refugees, and the use
of closed immigration detention should be a measure of last resort. The
Commission’s visits and conversations with people in community detention
and on bridging visas have reinforced the view that community arrangements, with
appropriate opportunities and support, comprise a far more humane and effective
model than closed detention for asylum seekers pending status resolution.

The overwhelming majority of people who spoke with the Commission reported
that community arrangements were far preferable to being held in closed
detention. All who spoke with Commission staff, including those with heightened
vulnerabilities, stated that the challenges which they faced living in the
community were less difficult than those which they had confronted while in a
detention facility.

People told the Commission of a range of benefits associated with their
community placement.

• People spoke of the additional measure of freedom they experienced through
  being able to leave their residence as they wanted; visit new places such as
  landmarks in the city or a farm; and engage in activities and social events in
  the community such as barbeques.
• People also spoke of the increased level of independence they experienced
  through, for example, being able shop for their own groceries; plan and cook
  their own meals; and organise their own transportation to appointments.
• Some people told the Commission that the best thing about community
  placement was the ability it gave them to stay in closer contact with friends,
  family members and support people.
• Others told Commission staff their children were faring much better in
  community arrangements than they did in closed detention.

While a
vast majority of people in community placement spoke of this arrangement as
preferable to closed detention, there were a small number of exceptions to this
rule. These comprised a family who felt more socially isolated in the community
than they had while detained at Leonora, and two people who feared that the
longer than anticipated wait for a decision on their claim was attributable to
them having been ‘forgotten’ as they were less visible to
authorities in the community.

Nonetheless, it appeared to the Commission that the benefits of community
placement far outweighed any disadvantages. Asylum seekers and refugees living
in community arrangements have, to a much greater extent than those living in
detention facilities, opportunities to live in normalised environments, to
personalise the space they reside in and to plan their days. Community
arrangements also appear to help people cope with the stresses associated with
undergoing often lengthy and sometimes traumatic refugee status assessment
processes and associated checks.

Flat occupied by family in community detention.

(b) Using
community arrangements at the earliest possible opportunity

 

It was apparent from the Commission’s visits and interviews that people
who had been transferred into the community within a few months of their
arrival, whether on bridging visas or in community detention, were coping better
than people who had endured extended periods of time in closed detention prior
to their community placement.

Over many years of monitoring immigration detention facilities and speaking
with people in detention, the Commission has witnessed the highly damaging
effects of prolonged, indefinite immigration detention. Countless people in
detention have told the Commission of the acute anxiety, distress and
frustration they have experienced as a consequence of their detention, and the
pervading uncertainty as to how long it will last. In many cases, people in
detention have pre-existing vulnerabilities arising from experiences of torture
and trauma or the loss of or separation from loved ones.

The effects of prolonged, indefinite immigration detention on the wellbeing
of people who have experienced detention do not dissipate immediately upon a
person’s release. Most of the refugees and asylum seekers in community
placement with whom the Commission spoke told staff of their experiences of
detention and the legacy of such experiences in their everyday lives. Some
people spoke of invasive memories which interrupted their sleep and affected
their appetite. Others spoke of disturbing dreams. Still others told the
Commission that they had problems with their memory, concentration and ability
to learn, all of which they attributed to the effects of being held in closed
detention.

It appeared however that some asylum seekers and refugees in community
arrangements, when provided with appropriate support, felt that they could begin
to recover from their experiences of detention and regain a degree of hope for
their future. Many people told the Commission that since being placed in the
community, they – and, where relevant, their children – were coping
better. Many people felt able to reengage with their families, the community and
DIAC processes.

People’s recovery appeared especially pronounced when they had spent
shorter periods of time in detention facilities. Those who had spent prolonged
periods in detention prior to their community placement reported that they
continued to be powerfully affected by difficult past experiences.

Artwork by children in community detention.

(c) Opportunities
to make a livelihood and engage in other meaningful activities

 

It was evident from the Commission’s visits and interviews that
opportunities for self-reliance and meaningful activities are critical to
rebuilding resilience amongst asylum seekers, refugees and stateless persons.

People in community detention, unlike people who have been granted a bridging
visa, are not permitted to engage in paid work in Australia. Families with
children and people with vulnerabilities are more likely to be placed into
community detention than granted a bridging visa, due to the additional support
which is generally associated with that community placement option.
Consequently, a large number of people in community arrangements are not
permitted to engage in paid employment.

The prohibition on paid employment was a source of distress amongst the
adults in community detention with whom Commission staff spoke. Most people in
this situation expressed feelings ranging from demoralisation to despair at
their inability to support themselves or their families, or to contribute to
Australian society. Some felt that their dignity was undermined by not being
able to work; others were at pains to convey that they had not wished to become
a burden on Australian society. Those who had been in community detention for
longest appeared most highly distressed by this issue.

Moreover, some people told the Commission of the impact of the lack of
opportunities to engage in specific activities aside from work. People told the
Commission of their desire to engage in meaningful activities which allowed
scope for personal development. For example, some spoke of their desire to study
English or to engage in vocational training. In some cases, people told the
Commission they had been advised that they were prevented from undertaking
studies of this nature because of the conditions attached to their community
detention or bridging visa; in other situations people were unclear about what
activities they were permitted to pursue. Asylum seekers and refugees told the
Commission that the lack of opportunities to engage in meaningful activities led
to idleness, apathy and a sense of worthlessness and lost opportunity.

Left and right: flat occupied by family in community detention.

The opportunity to work should be afforded to all adults who have been placed
in community arrangements. While the Commission appreciates that some people may
not find or sustain employment readily due to multiple impediments to workforce
participation, all those who feel able to work should nevertheless be given the
chance to do so, irrespective of their level of vulnerability.

The Commission understands that families and vulnerable individuals in
community detention may now be considered for transfer onto bridging visas if it
appears that they are in a position to earn. This is a positive step. However,
to avoid delay in allowing people opportunities to gain a livelihood, people in
this situation should be considered for a bridging visa grant in the first
instance wherever possible, as long as they continue to be provided with levels
of support commensurate with their basic needs.

The Commission also believes that people in community arrangements should be
given opportunities to engage in meaningful activities, aside from work. These
ought to include eligibility for adult English language classes and permission
to enrol in vocational training. Where such opportunities are already available
under current arrangements, this should be made clear to those concerned.

^Top

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^[53] For
example, in Canada, providing for asylum seekers living in the community has
been costed at $10-12 per person per day, compared with $179 for detention. In
Australia, the Community Assistance Support program, a service for certain
vulnerable asylum seekers living in the community, has been costed at a minimum
of $38 per day, as opposed to a minimum of $125 per day for immigration
detention. Costs calculated in Canadian and Australian dollars respectively. See
United Nations High Commissioner for Refugees, Back to Basics: The Right to
Liberty and Security of Person and ‘Alternatives to Detention’ of
Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, p 60, at http://www.unhcr.org/refworld/docid/4dc935fd2.html (viewed 6 July 2012); International Detention Coalition and
La Trobe Refugee Research Centre, There are Alternatives: A handbook for
preventing unnecessary immigration detention (2011), box 12, at http://idcoalition.org/cap/handbook/ (viewed 6 July 2012).

^[54] There are Alternatives, above, section 4.3.3 and endnotes 51-54.

^[55] There are
Alternatives, above, section 5.

^[56] Research indicates that
less than 10% of asylum applicants abscond when released to proper supervision
and facilities, or, in other words, over 90% of asylum applicants comply with
their conditions of release. See Back to Basics, note 53, Executive
Summary; There are alternatives, above, sections 3.2 and 5.1 and box
12.

^[57] There are
Alternatives, note 53, box
14.

^[58] There are
Alternatives, note 53, box
8.

^[59] There are
Alternatives, note 53, box
9.

^[60] There are
Alternatives, note 53, box
2.

^[61] See Migration Act 1958 (Cth), s 197AB.

^[62] New Directions in Detention, note
15.

^[63] See, for example,
Australian Human Rights Commission, 2010 Immigration detention on Christmas
Island (2010), sections 11 and 13.2, at http://www.humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 10 July 2012); Australian Human Rights Commission, 2011 Immigration
detention at Villawood (2011), section 7, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood.html (viewed 10 July 2012).

^[64] Minister for Immigration and Citizenship and Prime Minister, ‘Government
to move children and vulnerable families into community-based
accommodation’ (Media Release, 18 October 2010), at http://www.minister.immi.gov.au/media/cb/2010/cb155484.htm (viewed 6 June 2012).

^[65] ‘Bridging visas to be issued for boat arrivals’, note
39.

^[66] Bridging visas have been
used for many years to allow, among others, asylum seekers who arrive by plane
to live lawfully in the Australian community. See Prime Minister of Australia
and Minister for Immigration and Citizenship, ‘Asylum seekers; Malaysia
agreement; Commonwealth Ombudsman’ (Joint Press Conference, 13 October
2011), at http://www.minister.immi.gov.au/media/cb/2011/cb179299.htm (viewed 10 July 2012).

^[67] Department of Immigration and Citizenship, Bridging visas: form 1024i, at www.immi.gov.au/allforms/pdf/1024i.pdf (viewed 29 June 2012).

^[68] Written communication
from Department of Immigration and Citizenship to Australian Human Rights
Commission, 24 July 2012

^[69] Above.

^[70] Above.

^[71] Above.

^[72] See note
3.