Community arrangements for asylum seekers, refugees and stateless persons - Some barriers to use of community arrangements

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
• 6 Some barriers to use of community arrangements
  • 6.1 The Commission’s visits and interviews
  • 6.2 Refugees who have received adverse security assessments
  • 6.3 Refugees of interest to or who have been charged by the Australian Federal Police
  • 6.4 Stateless persons
• 7 Closed detention

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6 Some
barriers to use of community arrangements

Electrified fence, Villawood Immigration Detention Centre.

Despite the significant positive developments of the past two years, the
Commission remains seriously concerned about some aspects of Australian law and
policy on asylum seekers, refugees and immigration detention. The Commission is
primarily concerned about the prolonged or indefinite detention and lack of
durable solutions or substantive visa pathways for certain groups of people in
immigration detention. These include stateless persons; refugees who have
received adverse security assessments; and refugees who are of interest to or
have been charged by the Australian Federal Police (AFP).

6.1 The
Commission’s visits and interviews

During its recent visits to Villawood IDC, Sydney IRH, Maribyrnong IDC and
Melbourne ITA, the Commission interviewed over 50 people in detention and spoke
informally to many others. The people with whom the Commission spoke were from
Afghanistan, Sri Lanka, Burma, Iraq and Iran – a number of them stateless.
Most of these people were men but Commission staff also spoke with women and
children.

As has been noted, these visits focused on the circumstances and experiences
of people who remain in closed detention with little or no prospect of a
community placement or imminent resolution of their immigration status. The
people with whom the Commission met included 27 refugees who have received
adverse security assessments; seven people who are ‘of interest’ to
or have been charged by the AFP in relation to detention centre disturbances in
early 2011; and 14 people who identify as stateless and have been found not to
be refugees. There was some cross-over between these categories.

It is the Commission’s practice to ensure that the identity of people
who speak with Commission staff in the context of detention visits cannot be
discerned through our reports. The quotes that follow are drawn from interviews
between Commission staff and people in closed detention, and are grouped
according to the categories noted above. Given the limited number of people from
within these categories in each of the detention facilities visited by the
Commission, identifying information has not been included alongside the quotes.

6.2 Refugees
who have received adverse security assessments

The Commission has for several years raised a range of concerns about the
processes and outcomes associated with security assessments conducted by ASIO in
respect of refugees.^[73] Some
improvements have recently been made in this
area.^[74] Nevertheless, some of the
Commission’s most serious concerns about the human rights of refugees
involve the legal framework governing the conduct of security assessments and
the consequences of an adverse security assessment for a refugee.

The
Commission’s concerns with respect to ASIO security assessments are
threefold. First, security assessment processes are subject to inadequate
procedural safeguards, as refugees who have received adverse assessments are not
told the reasons for ASIO’s decision nor are they provided any substantive
opportunity for appeal. Second, refugees with adverse security assessments are
currently not considered for community placement but rather remain indefinitely
detained in closed facilities. Many of these people have already spent prolonged
periods in detention. Third, durable solutions are not being found for refugees
who have received adverse security assessments.

(a) The
security assessment requirement

Most classes of visas, including protection visas, contain a requirement that
the applicant meet Public Interest Criterion 4002 of the Migration
Regulations 1994 (Cth) (Migration Regulations), which states:

The applicant is not assessed by the Australian Security Intelligence
Organisation to be directly or indirectly a risk to security, within the meaning
of section 4 of the Australian Security Intelligence Organisation Act 1979.

Accordingly, although a security assessment is not required prior to the
grant of a visa, asylum seekers and refugees who do undergo an ASIO security
assessment must not be assessed as being directly or indirectly a risk to
security, otherwise they will not be granted a permanent visa to remain in
Australia. The Australian Government’s position is that ASIO security
assessments should be conducted only after an asylum seeker has been recognised
as a refugee.^[75]

(b) The
situation of people with adverse security assessments

 

As at 19 July 2012, there were 54 people in detention facilities in Australia who
had been recognised as refugees but had received adverse security assessments.^[76] There were also six
children in closed detention who were living with their parents who had received
adverse security assessments.

The Commission had concerns about the wellbeing of all people in detention it
encountered during these visits. However, Commission staff were struck
particularly by the acute levels of hopelessness and despair exhibited by
refugees in this situation.

Almost all refugees with adverse security assessments who elected to speak
with the Commission spoke about dying. Some people in this situation showed
Commission staff letters which they had written to DIAC and to Members of
Parliament, asking for a ‘mercy killing’ to be arranged. Further,
some people stated that they wished to donate their organs following their
death, as they felt that this was all they were able to contribute to the
society which they had hoped to join and which had sustained them over many
months.

Commission staff held serious concerns for the immediate safety of many of
the refugees with adverse security assessments with whom they met. The
Commission understands that, since the time of its visits to detention
facilities in April, at least one person in this position has made a serious
attempt at suicide and another had a panic attack which required his
hospitalisation. The Commission continues to hold grave concerns for the
wellbeing and safety of the refugees who remain in Australia’s detention
facilities due to adverse security assessments.

(c) Procedural
fairness

 

As noted, refugees who have received adverse security assessments do not have
to be provided with the reasons for ASIO’s decision and have very limited
access to independent review mechanisms. For this reason, in the view of the
Commission, security assessments conducted by ASIO are subject to inadequate
procedural safeguards. This is particularly troubling given the magnitude of the
consequences of an adverse assessment, namely, the deprivation of a
person’s liberty for an indefinite period of time.

When ASIO furnishes an adverse security assessment in respect of a person to
a Commonwealth agency, the agency is ordinarily required by law to give the
person who is the subject of the assessment a notice informing them of the
making of the assessment and a copy of the
assessment.^[77] However, this
requirement does not extend to adverse security assessments regarding proposed
actions taken under the Migration Act in relation to a person who is not an
Australian citizen, the holder of a permanent visa or the holder of a special
category visa.^[78] In practice,
people in this situation are not provided with the reasons for their security
assessments.

Accordingly, refugees who are the subject of an adverse security assessment
are not advised of the grounds upon which they have received their assessment,
nor are they provided with the information necessary to challenge it. Provision
of such information could prevent the identification of critical errors, such as
errors concerning a person’s identity or the bona fides of an
informant.

Even if a refugee subject to an adverse security assessment were provided with the information on which that assessment was based, he or she
would have extremely limited opportunities to appeal it.

Merits review through the Administrative Appeals Tribunal of security
assessments in relation to proposed actions taken under the Migration Act is not
available to people who are neither Australian citizens nor the holders of
permanent or special category
visas.^[79] This includes recognised
refugees awaiting the grant of protection visas.

Further, substantive judicial review of adverse security assessments is
effectively unavailable to refugees, even though the High Court of Australia has
held that ASIO decisions are subject to judicial
review.^[80] This is primarily
because Australian courts cannot consider the merits of an adverse assessment
but are limited to considering jurisdictional error.

That the legal framework governing ASIO security assessments contains
inadequate procedural safeguards has created a powerful sense of injustice,
confusion and frustration among refugees with adverse assessments who remain in
detention. Many people who spoke to the Commission about their adverse security
assessments expressed bewilderment as to the reasons for their assessment. Some
told the Commission that they had received an adverse assessment without even
having been interviewed by ASIO; others said they were interviewed at a time
when they were awaiting supporting documentation from their country of origin,
which they received shortly after the interview occurred. Most refugees with
adverse assessments expressed distress and significant dismay at their inability
to challenge their assessments, stating that they were convinced that some
mistake had been made. For example, one man told the Commission he believed he
had received an adverse security assessment due to a mix-up in relation to his
name.

In the Commission’s view, the following procedural safeguards should be
introduced in Australia.

• Any
  person in Australia who has been refused a visa as a result of an adverse
  security assessment – including a person who is not an Australian citizen,
  the holder of a permanent visa or the holder of a special category visa –
  should be provided with information to enable them to be reasonably informed of
  the information that ASIO has relied upon and the grounds for making the
  determination.
• Administrative Appeals Tribunal review should be extended to all people in
  Australia who have been refused a visa as a result of an adverse security
  assessment – including people who are not Australian citizens, the holders
  of a permanent visa or the holders of a special category visa. Review of adverse
  security assessments should be conducted by the Security Division of the
  Administrative Appeals Tribunal.
• The
  Australian Government should explore options for providing for effective merits
  and judicial review of adverse security assessments. These should include
  opportunities for applicants with adverse assessments to know the basis of their
  assessment and to make submissions on the content of that assessment, either
  directly or through an appropriate person such as a Special
  Advocate.^[81]

(d) Indefinite
detention of people who have received adverse security assessments

 

As noted above, in order to be granted a permanent protection visa, refugees
must meet Public Interest Criterion 4002 which provides that they have not been
assessed by ASIO as being directly or indirectly a risk to security. As such,
refugees who receive an adverse security assessment are not eligible to receive
a protection visa allowing them to remain in Australia.

Further, there appears to be no prospect of refugees who have received
adverse security assessments being placed in the community, through the use of
bridging visas or community detention, while durable solutions for them are
being pursued.

While the Minister for Immigration and Citizenship has the power to grant a
visa to any person in immigration
detention,^[82] the current
Australian Government position appears to be that refugees who have received
adverse security assessments will not be placed in the community via the grant
of a bridging visa.

Refugees with adverse security assessments appear not to be eligible for
placement in community detention either. While the Residence Determination
Guidelines issued in September 2009 by the former Minister for Immigration and
Citizenship, Senator the Hon Chris Evans MP, allow refugees who have received
adverse security assessments to be transferred from closed detention into
community detention along with conditions to mitigate any potential risk, the
Australian Government’s current position is that people in this situation
should not be granted a residence determination. The Commission understands that
the Residence Determination Guidelines are currently being updated.

Some people who have been transferred into community detention while awaiting
the outcome of their application for protection have subsequently received an
adverse security assessment while living in the community. As a result of the
Australian Government’s policy, DIAC has been required to re-detain people
in this situation in closed facilities. This is despite the fact that they may
have already spent some time out of closed detention facilities living in the
Australian community, without raising the concerns of any authorities.

Accordingly, refugees who have received adverse security assessments face the
prospect of indefinite detention in closed facilities, in addition to the
sometimes prolonged periods for which they have already been detained. This
indefinite detention may amount to arbitrary detention in breach of the International Covenant on Civil and Political
Rights.^[83]

As noted above, in order to avoid arbitrary detention, there must be an
individual assessment of whether it is necessary, reasonable and proportionate
to hold a person in detention. Moreover, if it is decided that a person must be
detained, this should be in the least restrictive manner and detention should
not continue beyond the period for which it can be
justified.^[84] Currently, however,
once a person has received an adverse security assessment recommending that they
not be granted a permanent visa, there does not appear to be any further
individualised assessment of whether that person is a risk to the Australian
community and in particular whether they could be placed in less restrictive
arrangements than closed detention. Rather, it seems to be assumed that because
a person has received such an assessment, they necessarily pose a risk to the
community which warrants continuing detention in closed facilities. This may
not be the case. As the New Zealand Court of Appeal recognised in Choudry v
Attorney General, it is ‘obvious that all risks to national security
do not call for equal treatment. It is also apparent that different risks can be
identified and
distinguished.’^[85]

Commission staff witnessed firsthand the devastating effects of indefinite
detention on refugees with adverse security assessments during recent visits.
Among the people in this situation with whom the Commission met were a family of
five, including a baby who was born in detention in Australia; a woman in
detention who was accompanied by her young son and whose husband has passed
away; a pair of adult brothers, one of whom had extensive vulnerabilities; and a
man whose wife and son had been granted protection visas and were reportedly
struggling to cope with life in the community without him.

As noted above, many refugees with adverse security assessments had already
spent prolonged periods in detention and could not see any prospect of being
released or transferred into community arrangements. Others had been granted a
residence determination and had experienced life in the broader Australian
community, only to be re-detained in a closed facility upon receipt of their
adverse security assessment. People spoke to the Commission of the acute
distress they experienced as a result of their ongoing detention and expressed
emotions ranging from acute anxiety to anger to despair. Many told Commission
staff that their ability to eat, sleep or think clearly had been drastically
compromised by their predicament. Thoughts of self-harm and suicide were common.
Most people’s distress was compounded by long periods of separation from
their families, in some cases living in the Australian community, and in some
cases remaining in their countries of origin or in situations of danger
elsewhere.

(e) Lack
of durable solutions

 

There do not appear to be any durable solutions currently available for
refugees who have received adverse security assessments.

Last year DIAC advised the Commission that the government was actively
exploring durable solutions for individuals with adverse security assessments
that are consistent with Australia's international obligations, including its non-refoulement obligations. It further noted that these ‘may
include resettlement in a third country or safe return to [a person’s]
country of origin where country circumstances allow, where the risk of relevant
harm occurring no longer exists or where reliable and effective assurances can
be received from the home
country’.^[86] The Commission
has since been advised by DIAC that the return of a refugee to their country of
origin on the basis of diplomatic assurances is a theoretical option that could
be explored but is not being pursued at this
stage.^[87] Were it to be pursued,
the Commission would hold serious concerns that relying on diplomatic assurances
in returning a refugee to their country of origin could breach Australia’s non-refoulement obligations.^[88] Further, nothing
presently indicates that third country resettlement is realistic.

The apparent lack of workable long-term solutions to the situation of
refugees with adverse security assessments was a source of immense distress for
people with whom the Commission met. Many expressed disbelief that durable
solutions to their situation were in fact being pursued. Others could not see
viability in any of the prospective solutions proposed. This led to an inability
to conceive of any future apart from continuing detention in an immigration
facility. People with whom the Commission spoke appeared to struggle to maintain
any hope in relation to their circumstances and to give meaning to their days in
this context.

(f) High
Court challenge: Plaintiff M47/2012 v Director General of
Security

On 18, 19 and 21 June 2012, a refugee who received an adverse security
assessment brought a challenge in the High Court of Australia against the
Director General of Security, the Minister for Immigration and Citizenship and
the Commonwealth of Australia, amongst others. The plaintiff in this matter
challenged the processes by which ASIO conducted the security assessment which
led to his receiving an adverse security assessment signed by the Director
General of Security. The plaintiff also challenged his continuing detention in a
closed facility.

With regard to the procedural issues, the plaintiff argued that in furnishing
an adverse security assessment, ASIO failed to comply with the requirements of
procedural fairness. The defendants argued that ASIO had complied with the
requirements of procedural fairness by conducting an interview with the
plaintiff and providing him the opportunity to advance relevant evidence.

With respect to detention, the plaintiff argued that his continuing and
potentially indefinite detention is unlawful, because he is not being detained
for any purpose authorised by the Migration
Act.^[89]

The High Court has previously held, in Al-Kateb v Godwin, that the
Migration Act authorises and requires the detention of ‘unlawful
non-citizens’ even if their removal from Australia was not reasonably
practicable in the foreseeable
future.^[90] The plaintiff sought to
distinguish his situation from the finding in this case, as he has been
recognised as a refugee, while Mr Al-Kateb was found to be stateless and
considered not to be owed Australia’s protection. In the alternative, the
plaintiff argued that Al-Kateb v Godwin was wrongly decided and should be
overturned.

The defendants submitted that the plaintiff’s detention is authorised
and required by

ss 189 and 196 of the Migration Act.

At the time of writing, the High Court’s judgment in Plaintiff
M47/2012 v Director General of Security was
reserved.^[91] The decision in this
matter may have significant consequences for refugees with adverse security
assessments who remain in detention.

6.3 Refugees
of interest to or who have been charged by the Australian Federal Police

A further group of people in closed detention
about whom the Commission holds particular concerns are refugees who are of
interest to or have been charged by the AFP in relation to detention centre
disturbances in early 2011. People in this situation face prolonged periods of
detention with little hope of transfer into community arrangements. If
convicted, they have reduced prospects of receiving a permanent protection visa.

(a) Australian
Federal Police and Parliamentary response to detention centre disturbances

As noted in section 4.2, Christmas Island and Villawood IDCs
became scenes of violent protests during March and April 2011 respectively.
These protests occurred at a time of significant overcrowding, protracted
periods of detention and associated unrest across the detention network.

The protests on Christmas Island and at Villawood involved extensive damage
to property as well as injuries to detainees, detention centre staff and
authorities attending the
scenes.^[92] They were followed by
criminal investigations during which a number of people became ‘persons of
interest’ to the AFP, some of whom have subsequently been charged or
convicted. At the time of writing, 61 people in closed detention remained
‘of interest’ to the AFP, over a year after commencement of criminal
investigations.

In July 2011, the Australian Parliament passed amendments to the Migration
Act to ‘toughen the penalties for criminal behaviour in immigration
detention’.^[93] Under the
amendments, a person who is convicted of any offence committed while in
immigration detention will automatically fail the character test applied prior
to the grant or cancellation of a
visa.^[94] A consequence of this
amendment is that refugees who fall within this category may not be granted a
permanent protection visa.^[95]

(b) The
situation of refugees who are of interest to or have been charged by the
Australian Federal Police

 

During its recent visits to closed detention facilities the Commission met
with seven refugees who were of interest to or had been charged by the AFP in
association with the detention centre disturbances in early 2011. Most had
received a security clearance, and those who had not were awaiting completion of
their security assessment. At least one person with whom the Commission spoke
had been found to be a refugee prior to the disturbances and remained in
detention at that time pending completion of security and other checks. Some of
the people in this group advised the Commission that they had been detained for
over three years and all appeared to have been detained for over two years.

All of the refugees with whom the Commission met who were of interest to or
had been charged by the AFP expressed intense feelings of frustration, despair
and helplessness in relation to their circumstances. Many expressed anxiety
about whether they would ever be released from immigration detention and some
expressed fear that their mental and physical health were deteriorating rapidly.

Many ‘persons of interest’ told the Commission that they believed
that there was no active investigation underway in relation to allegations made
against them. Some people who had been charged told the Commission that they
felt that they were being punished for personal protest actions which were
motivated by their desperation at the length of their detention and which had
not resulted in damage to property or harm to other people. Others who had been
charged keenly felt that it was paradoxical that they remained indefinitely
detained as a result of behaviours which they had exhibited only in response to
the unbearable frustrations associated with being detained for a prolonged
period in the first place. One man expressed confusion and exasperation at
having been returned to immigration detention from a correctional facility after
he was charged, as he had understood from court proceedings that he was to be
bailed into the community.

(c) Impact
of changes to the character provisions under the Migration Act

Under 2011 amendments to the Migration Act, a person who is convicted of an
offence committed while in immigration detention will automatically fail the
character test that is conducted before a person is granted a visa. A person who
fails the character test cannot be guaranteed a visa, even if Australia has
recognised that person as a refugee – the Minister for Immigration and
Citizenship, or his delegate, may decide not to grant a visa to a person in
these circumstances.^[96] The
Commission understands that consideration has been given to granting temporary
visas, including Removal Pending Bridging Visas, instead of permanent protection
visas, to refugees who fail the character test because they have been convicted
of offences committed while in immigration detention.

The practical effect of a decision not to grant a recognised refugee a
permanent protection visa on the basis that they were convicted of an offence
committed in detention, or to grant a refugee in this situation a temporary
rather than a permanent visa, appears to be to further punish a person over and
above any penalty which may be imposed by the courts. It is not appropriate for
penalties for criminal conduct to be imposed through the administration of
migration law and policy.^[97]

People in detention who were of interest to or had been charged by the AFP
expressed significant apprehension to the Commission as to the impact that their
involvement in police matters may have on their prospects of being granted
protection in Australia. Many people in this situation expressed great anxiety
that they may not receive a permanent protection visa if ultimately convicted of
the offence for which they had been charged.

Concerns have also been raised with the Commission by a number of parties
regarding the potentially grave consequences of the amendments to the character
test provisions of the Migration Act on refugees, some of whom have been
convicted of very minor offences and many of whom are reportedly highly
vulnerable following prolonged periods of immigration
detention.^[98]

The Commission believes that the Minister and his delegates should adopt a
humanitarian approach when considering applications for protection visas from
refugees in these circumstances.

(d) Prolonged
detention of refugees who are of interest to or have been charged by the
Australian Federal Police

Further to concerns regarding the
lengthy timeframes for AFP investigations and the potential curtailment of
durable solutions for refugees who have been convicted of minor offences, the
Commission is troubled by the prolonged detention in closed facilities of
refugees who have been charged by or remain of interest to the AFP. As noted,
all the refugees within these categories with whom the Commission met appeared
to have been detained for at least two years and some had been detained for up
to a year following their recognition as refugees.

The Commission understands that the Minister for Immigration and Citizenship
has indicated to DIAC that he is not inclined to consider the exercise of his
discretionary powers to grant a bridging visa or community detention to any
person who has been charged with offences alleged to have been committed whilst
in immigration detention. The Commission also understands that, while open to
receiving submissions relating to community placement options for people who
remain of interest to the AFP, the Minister has indicated that he will not
necessarily consider exercising his discretionary powers in these
instances.^[99]

The Commission is greatly concerned that recognised refugees, many of whom
have received a security clearance, are being detained for protracted periods
without foreseeable prospect of release. As reiterated throughout this report, a
person should only be held in an immigration detention facility if they are
individually assessed as posing an unacceptable risk to the Australian community
and that risk cannot be met in a less restrictive way. Otherwise, they should be
permitted to reside in the community while their immigration status is resolved
– if necessary, with appropriate conditions imposed to mitigate any
identified risks. These standards should be applied to all people in detention,
irrespective of any alleged or established participation in detention centre
disturbances.

The Commission understands that status resolution processes – that is,
the processing of claims for protection and the conduct of security assessments
for those found to be owed protection – are automatically suspended if a
person is charged.^[100] The
Commission is concerned that, in the current circumstances, this approach may
contribute to considerably lengthened periods of immigration detention for
recognised refugees who have already been subject to protracted detention. One
man who had been found to be a refugee a year earlier told Commission staff of
his significant distress at having been advised that the processing of his
security assessment had been suspended in light of his charge.

6.4 Stateless
persons

 

The Commission has long held concerns about the protracted immigration
detention of, and lack of substantive visa pathways available to, people who
appear to be stateless and have been found not to be refugees. As at 15 May
2012, there were 555 people in closed detention in Australia who identified as
being stateless, 114 of whom had been detained for over 540
days.^[101]

Australia has obligations in respect of stateless persons as a party to the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness. In the view of the
Commission, Australia would better meet these obligations if it were to develop
a formal, comprehensive procedure for determining
statelessness.^[102] The Commission
also submits that an administrative mechanism should be made available for
stateless persons to seek a permanent remedy for their statelessness in
Australia.

Guidelines for Assessing Claims of Statelessness have recently been made
available to DIAC decision-makers for the purpose of assessing whether a person
meets the requirements for the grant of a protection
visa.^[103] However these
Guidelines do not comprise a statelessness determination mechanism, nor do they
provide for the grant of a visa in response to an assessment that a person is
stateless.

While
statelessness in itself is not a ground for claiming refugee status, it may be a
relevant consideration in a person’s refugee claim. While some stateless
persons are found to be refugees, or to be otherwise owed protection, others are
not.

As Australia does not grant protection visas to people on the basis of
statelessness alone, a person may be assessed as likely to be stateless (and
therefore unlikely to be able to be removed), and yet left without resolution of
their situation. Under Australia’s current arrangements, the only prospect
of a lasting resolution for people in this situation is through the exercise of
non-compellable discretionary Ministerial power to grant a person a visa, or
locating a third country that is willing to accept the person as a lawful
permanent resident. Pursuit of third country residency options has historically
left people who are stateless in situations of protracted immigration detention.

Many of the stateless people with whom the Commission met during its recent
detention visits expressed bewilderment and despair at the fact that they had
received records of decisions, including primary decisions, review decisions and
in some instances judicial review decisions, which accepted their claims of
statelessness, yet left them without any associated visa outcome. Many of these
people had been detained for extensive periods of time and also reported high
levels of hopelessness, thoughts of self-harm and anxiety regarding their
deteriorating mental health.

The Commission understands that several of the apparently highly vulnerable
stateless people with whom it met have since been approved for community
placements, or transferred into less restrictive forms of closed detention.

The Commission further understands that the Minister for Immigration and
Citizenship has recently clarified to DIAC that he is open to receiving
submissions recommending bridging visa grants or community detention placement
for people who are stateless who have been found not to be owed protection. In
light of the significant number of people in this situation, and the length of
detention of many, the Commission urges that such submissions be swiftly
referred and considered. Along with other people currently subject to closed
immigration detention, people who are stateless ought to be placed in the
community at the earliest opportunity, unless they are considered to pose an
unacceptable risk. If a person is assessed as posing such a risk, consideration
should be given to placing them in a less restrictive form of immigration
detention.

In addition to pursuing community placement options for stateless persons,
the Commission recommends that the Australian Government take measures to ensure
the lasting resolution of their situation. These should include the development
of a formal statelessness determination mechanism which incorporates recognition
of de jure as well as de facto statelessness. The term de
facto statelessness describes persons who formally possess a nationality,
but whose nationality is not ‘effective’. The Final Act of the Convention on the Reduction of Statelessness recommends that
‘persons who are stateless de facto should as far as possible be
treated as stateless de jure to enable them to acquire an effective
nationality’.^[104] Measures
to resolve the situation of stateless persons should also include the
establishment of administrative pathways for the grant of substantive visas to
stateless persons who have been found not to be refugees or otherwise owed
protection.

^Top

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^[73] The Commission has raised
concerns about security assessment processes and outcomes in numerous reports
and public statements including 2010 Immigration detention on Christmas
Island, note 63, section 10; Australian Human Rights Commission, 2010
Immigration detention in Darwin (2010), section 5, at http://www.humanrights.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 10 July 2012); 2011 Immigration detention at Villawood, note 24,
section 8.4; 2011 Immigration detention at Curtin, note 24, section 5.1.
The Commission has also made submissions on security assessment processes and
outcomes to Parliamentary reviews and inquiries, including to the 2011
Independent Review of the Intelligence Community (at http://www.humanrights.gov.au/legal/submissions/2011/20110431_intelligence.html,
viewed 24 July 2012) and the 2011 Joint Select Committee Inquiry into
Australia’s Immigration Detention Network (at http://www.humanrights.gov.au/legal/submissions/2011/201108_immigration.html,
viewed 24 July 2012). Further, Commission President the Hon Catherine Branson QC
wrote to the Attorney-General on 23 September 2010, 12 October 2011, 1 March
2012 and 15 May 2012, and the Minister for Immigration and Citizenship on 23
September 2010, 26 August 2011 and 15 May 2012, about the Commission’s
concerns in relation to ASIO security assessment processes and
outcomes.

^[74] For example, in
March 2011, ASIO introduced a security referral framework for asylum seekers who
arrive in Australia by boat, designed to streamline the security checking
process for people in this situation and allow ASIO to focus on complex cases
while finalising non-complex cases relatively quickly. According to ASIO, this
new ‘triage method’ allows for more efficient conduct of security
assessments: see Australian Security Intelligence Organisation, ASIO Report
to Parliament 2010-11 (2011), pp VII-VIII and 25-26, at http://www.asio.gov.au/img/files/Report-to-Parliament-2010-11.pdf (viewed 10 July 2012). For further information on and an analysis of the new triage approach, see Australian National Audit Office, Security Assessments of Individuals (Report no. 49, 2012), at http://www.anao.gov.au/Publications/Audit-Reports/2011-2012/Security-Assessments-of-Individuals (viewed 25 July 2012).

^[75] See ASIO Report to Parliament
2010-11 (2011), above, p 25.

^[76] Written communication from Australian Security Intelligence Organisation to
Australian Human Rights Commission, 23 July 2012.

^[77] Australian Security
Intelligence Organisation Act 1979 (Cth), s 37(1). The notice and the copy
of the assessment are not to be provided to the person if the Attorney-General
certifies that withholding the notice ‘is essential to the security of the
nation’ or that withholding some or all the statement of grounds contained
in the assessment ‘would be prejudicial to the interests of
security’: Australian Security Intelligence Organisation Act 1979 (Cth), s 37.

^[78] Australian Security Intelligence Organisation Act 1979 (Cth), s
36.

^[79] Australian Security
Intelligence Organisation Act 1979 (Cth), s
36.

^[80] Church of Scientology
Inc v Woodward (1982) 154 CLR
25.

^[81] For further information
on security assessments processes, and procedural safeguards which should be
introduced to improve them, see Australian Human Rights Commission, Submission to the Independent Review of the Intelligence Community, note
73.

^[82] Under s 195A of the Migration Act 1958 (Cth), the Minister for Immigration and Citizenship
has the power to grant a visa to any person in immigration detention. This is
because, by operation of s 195A(3), the requirement under s 65 that the
Minister be satisfied of certain criteria before granting a visa –
including that a person who has undergone an ASIO security assessment must not
be assessed as being a risk to security – does not
apply.

^[83] See International
Covenant on Civil and Political Rights, note 19, art 9(1); see also Convention on the Rights of the Child, note 19, art 37(b). See further
note below.

^[84] See note
22.

^[85] Choudry v Attorney
General [1999] 2 NZLR
582.

^[86] Department of
Immigration and Citizenship, response to Australian Human Rights Commission, 2011 Immigration detention at Villawood (2011), recommendation 5, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood_response.html (viewed 10 July 2012).

^[87] Written communication from Department of Immigration and Citizenship to
Australian Human Rights Commission, 24 July 2012.

^[88] Australia is prohibited
under article 33(1) of the Convention Relating to the Status of Refugees and its 1967 Protocol from expelling or returning refugees to territories
where their lives or freedom would be threatened on the basis of their race,
religion, nationality, membership of a particular social group or political
opinion. However, this prohibition does not apply to refugees whom there are
reasonable grounds for regarding as a danger to the security of Australia, or
who, having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the Australian community: see article 33(2). Australia
has further and broader non-refoulement obligations under the International Covenant on Civil and Political Rights, Convention on
the Rights of the Child and Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, which prevent the removal of
anyone from Australia to a country where they are in danger of torture or cruel,
inhuman or degrading treatment or punishment. See Convention Relating to the
Status of Refugees (1954), art 33(1) and Protocol Relating to the Status
of Refugees (1967), both at http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (viewed 10 July 2012); International Covenant on Civil and Political
Rights, note 19, arts 6 and 7; Convention on the Rights of the Child,
note 19, arts 6 and 37; Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (1987), at http://www2.ohchr.org/english/law/cat.htm (viewed 10 July 2012). For further analysis of the operation of these articles
as non-refoulement provisions, see United Nations Human Rights Committee, GT v Australia, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996,
at http://www.unhcr.org/refworld/country,,HRC,,AUS,,4ae9acbfd,0.html;
United Nations Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999, at http://www.unhcr.org/refworld/docid/3f588ef00.html;
United Nations Human Rights Committee, Kindler v Canada, Communication No
470/1991, UN Doc CCPR/C/48/D/470/1991, at http://www.unhcr.org/refworld/publisher,CAN_SC,,USA,3ae6b6ed0,0.html;
United Nations Human Rights Committee, Ng v Canada, Communication No
469/1991, UN Doc CCPR/C/49/D/469/1991, at http://www.unhcr.org/refworld/country,,HRC,,HKG,,4028b5002b,0.html;
United Nations Human Rights Committee, Cox v Canada, Communication No
539/1993, UN Doc CCPR/C/52/D/539/1993, at http://www.unhcr.org/refworld/publisher,HRC,,USA,4028ba144,0.html;
United Nations Committee on the Rights of the Child, General Comment No 6:
Treatment of unaccompanied and separated children outside their country of
origin, UN Doc CRC/GC/2006/6, at http://www.unhcr.org/refworld/docid/42dd174b4.html (all viewed 10 July 2012).

^[89] Section 196 of the Migration Act provides that an unlawful non-citizen is to be
detained until he or she is:

1. removed from Australia under section 198 or 199; or
2. deported under section 200; or
3. granted a visa.

^[90] Al-Kateb v Godwin (2004) 219 CLR
562.

^[91] Transcripts of the
proceedings in Plaintiff M47/2012 v Director General of Security can be
found at http://www.austlii.edu.au/au/other/HCATrans/2012/144.html, http://www.austlii.edu.au/au/other/HCATrans/2012/145.html and http://www.austlii.edu.au/au/other/HCATrans/2012/149.html (all viewed 9 July 2012).

^[92] For a full account of the protests see Independent Review of the Incidents at
the Christmas Island Immigration Detention Centre and Villawood Immigration
Detention Centre, note 26.

^[93] Minister for Immigration
and Citizenship, ‘Character test changes passed by parliament’
(Media Release, 5 July 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb167979.htm (viewed 23 July 2012

^[94] Migration Act 1958 (Cth), s 501(6)(aa).

^[95] In announcing the changes
Minister for Immigration and Citizenship, the Hon Chris Bowen MP, stated:
‘Anyone considering engaging in destructive and criminal behaviour in
detention must now face the reality that such action will significantly increase
their chances of not being granted a permanent visa’. ‘Character
test changes passed by parliament’, note 93.

^[96] See Migration Act
1958 (Cth), s 501.

^[97] For
further analysis of the potential impact of the amendments to the character
provisions of the Migration Act 1958 (Cth), see Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional
Committees’ Inquiry into the Migration Amendment (Strengthening the
Character Test and Other Provisions) Bill 2011 (31 May 2011), at http://www.humanrights.gov.au/legal/submissions/2011/20110531_migration.html (viewed 10 July 2012).

^[98] Concerns raised with the Commission include cases of refugees having been
convicted for the theft (and subsequent return) of small food items from
detention centre kitchens, without signs of forced
entry.

^[99] Advice provided to
the Australian Human Rights Commission by Department of Immigration and
Citizenship, 2 July 2012.

^[100] Advice provided to the
Australian Human Rights Commission by Department of Immigration and Citizenship,
3 July 2012.

^[101] Commonwealth, Official Committee Hansard: Senate Legal and Constitutional
Affairs Legislation Committee – Estimates (21 May 2012), p 68 (John
Moorhouse, Deputy Secretary, Immigration Detention Services Group, Department of
Immigration and Citizenship), at http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/b429b5c1-1858-47f9-ab41-542ef70c9e51/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2012_05_21_1050.pdf (viewed 10 July 2012).

^[102] Convention relating to the Status of Stateless Persons (1954), at http://www2.ohchr.org/english/law/stateless.htm (viewed 8 June 2012); Convention on the Reduction of Statelessness (1961), at http://www2.ohchr.org/english/law/statelessness.htm (viewed 8 June 2012).

^[103] Department of Immigration and Citizenship, protection visa Procedures Advice
Manual: Annex: Guidelines – Assessing Claims of Statelessness.
Available through LEGENDcom, the Department’s electronic database of
migration and citizenship legislation and policy documents which is available to
members of the public on a subscription basis – see http://www.immi.gov.au/business-services/legend/ (viewed 10 July 2012).

^[104] Convention on the Reduction of Statelessness (with Final Act of the
United Nations Conference on the Elimination or Reduction of Future
Statelessness held at Geneva from 24 March to 18 April 1959, and Resolutions I,
II, III and IV of the Conference) (1961), Resolution 1, at http://treaties.un.org/doc/Publication/UNTS/Volume%20989/volume-989-I-14458-English.pdf (viewed 8 June 2012).