National Inquiry into Children in Immigration Detention
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Submission to the National Inquiry into Children in Immigration Detention from
Steven Colombus
Towards the goal of a more humane asylum system
The importance of a workable alternative model
Demonstrated risk of absconding - an unreasonable threshold?
Incentives/disincentives to abscond
Towards the goal of a more humane asylum system
The current submission recognises the need to move beyond mere critique of the status quo and focus resources on the development of viable alternatives. To be feasible any such model must satisfy the legitimate concerns of the government while upholding the fundamental right of freedom of movement.
Following from the presumption against detention, alternatives should be considered and where viable alternatives exist these should be applied first, unless relevant mitigating circumstances have been identified. Consistent with the individual focus of international human rights law, the choice of alternative should be “influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned” [1], taking into account prevailing local conditions.
In a pointed statement released late last year, Kenneth Rivett a life-time member of the RCOA, observed that:
“…, other organisations have failed again and again to end Mandatory Detention. We will keep failing until we can give sensible answers to the plain man’s question: What is your alternative?” [2]
This is a point well-made, and one the author is acutely aware of. The models canvassed below represent concerted efforts to articulate comprehensive, viable answers to the “plain man’s” question. That the plain man is apparently uninterested in the answers being proffered is a point of concern. In a recent defence of Australia’s policy of mandatory detention, Prime Minister Howard acknowledged that:
“Nobody likes the present situation. We don’t like having to detain people but there is no alternative if we are to keep control of the flow of people into this country.” (emphasis added) [3]
Only mandatory detention, it is argued, fulfils the dual function of deterrence (discouraging further unauthorised entry), and border integrity (preventing arrivals from absconding into the community). Even ignoring the many constructive alternatives mooted in the Australian context, the author stresses that global conduct offers nothing but alternatives, Australia being the only country in the world that practises mandatory detention.
The plight of children
One of the key points established in the UNHCR revised guidelines on applicable criteria and standards relating to the detention of asylum seekers, is the recognition that not all asylum seekers are the same. This principle assumes the greatest moral weight in the case of children, but applies equally to all vulnerable groups. It seems only reasonable that such consideration be extended to family groups, both in light of the principle of family unity and the fact that women and children comprise integral parts of family unit.
For detention of these groups to be justifiable it must not merely be shown to be necessary, but enforced only as a measure of last resort. Authorities are required to examine all possible alternatives before imposing detention on such vulnerable groups. Moreover detention must still be for the shortest possible time. Therefore states, in the short term, are required to examine the viability of community release in some form or other.
However, practical dangers accompany any special pleading for children. With respect to the current regime there is a demonstrable tension between the best interests of the child and the principle of family unity [4], which in practice is consigning children to continuing incarceration in the company of their parents. Why? Because in most cases the ‘best interests of the child’ are deemed best served by maintaining the integrity of the family unit. As HREOC has pointed out in Briefing Paper 8:
“Under bridging visa requirements, child asylum seekers cannot be released from immigration detention unless a State or Territory child welfare authority certifies that a release from detention is in the child's best interests and the Minister for Immigration and Multicultural and Indigenous Affairs is satisfied that appropriate arrangements have been made for the care and welfare of the child outside of detention. [20] As it is usually in a child's best interests to remain with her or his family, and there is no provision for release of families from detention, children are rarely granted bridging visas.”
And not without justification, for what impact would such separation have on the child, not to mention the one or both parents left in detention? Ironically, under mandatory detention the principle upholding the ‘best interests of the child’ merely compounds the child’s trauma. Mandatory detention places even the most well-meaning decision maker on the horns of a dilemma. What is the kindest form of cruelty that can be imposed on the child - an indefinite stay in detention or separation from the family?
Any selective alternative to detention, whereby, children alone, or children with their mothers are removed from detention, would be inherently problematic. A more humane alternative would be to release all families, thus preserving the family unit and ensuring the best interests of the child. But this would serve only to legitimate ‘mandatory’ detention by default, and would consign those detained contrary to international standards – that is unnecessarily – to their fate.
The importance of a workable alternative model
The author believes that the only workable and morally tenable solution, therefore, lies with the institution of a comprehensive alternative detention model, founded on the principle of case-by-case assessment consistent with international standards. Such a model would resolve the identified tensions because consideration of mitigating factors would be built into the process of case-by-case assessment. Several alternative models, tailored to the Australian context, already exist. Chief among them are those developed by the RCOA, HREOC, and more recently the Justice for Asylum Seekers (JAS) coalition.
Essentially, such models prescribe not an alternative but rather several alternative arrangements fulfilling different imperatives and existing side-by-side. It is useful to imagine these alternatives occupying consecutive points along a continuum representing progressively greater restrictions on an asylum seeker’s movement. They presuppose a release screening process, although the exact details remain undefined. Nevertheless, the intent is clear, a flexible system in which the level of restriction imposed on each individual asylum seeker can be linked directly to the level of risk identified via screening. No explicit dispensation is extended on the basis of age or sex because all models accord with relevant UNHCR prescription and proceed on a case-by-case rather than categorical basis. That is, special provision for vulnerable categories of asylum seeker, i.e. progressively higher thresholds for women, and children, are built into the proposed community release assessment procedures.
All the proposed alternatives share the following positive features:
- A more humane regime;
- Greater flexibility;
- Enhanced equity in the treatment extended to community and irregular asylum seekers respectively;
- Reduced economic, social and political costs in processing;
- Increased harmony with international human rights instruments.
The JAS coalition’s Transitional Processing and Reception (TPR) model incorporates many of the features of its contemporaries, but in a key innovation places the person of the case-officer at the nexus of its proposed framework. The case-officer mediates between the community and department, and monitors the progress of the individual applicants throughout the reception and determination process. Notably, the status of the case-officer reflects inter alia, reservations that DIMA determination officers may not have the resources necessary to make comprehensive risk assessments. [5]
A feature as yet absent from all such models, and one that the author believes to be a significant obstacle to the ultimate implementation of any of them, is a mechanism that explicitly addresses legitimate government concerns with respect to absconding. The author hopes that what follows might serve not only as a spur to constructive debate, but as a first rudimentary step towards the goal of answering government disquiet.
Absconding:
“It has been said that the supporters of Mandatory Detention are not raising the question of absconding. If that’s the case, then so much the worse for its opponents, who have evidently not pushed them until they were forced to have recourse to this, much the most plausible of all the arguments for detaining asylum seekers at all. The people one talks to outside refugee circles can see that there is a problem of absconding. They want to know how we’d handle it.” Kenneth Rivett, Detention Proposals
The author acknowledges that risk of absconding is a legitimate factor in any decision to detain, and on the flipside, in any subsequent decision with respect to when and if an individual should be released from detention. [6]
Given that detention is mandatory for all unauthorised arrivals it must be assumed that this presumption of abscondment extends to all unauthorised arrivals without distinction. This orientation is contrary to the prescription of international law, which places the onus on governments to demonstrate this risk on a case-by-case basis. [7] No such universal assessment framework exists in Australia, because the government countenances no widely applicable alternatives to mandatory, indefinite detention.
What this section endeavours to demonstrate is that a fair and comprehensive risk assessment procedure, one that strikes a compassionate balance between humanitarian and border control imperatives, is possible. Striking such a balance requires the weighing-up a complex set of contributing factors. Currently only one contributing factor dictates whether or not an asylum seeker will be detained – mode of entry into Australia.
Those that enter Australia on valid visas remain free in the community. Conversely, unauthorised entrants who apply for asylum are detained for the entirety of the determination process. The inequities and absurdities of this absolute differentiation become clear upon examination.
Minister Ruddock has explained this disparity with the suggestion that since we can be certain of the identity of visa-holding asylum seekers we do not need to detain them. [8]
But once the identity of irregular entrants has been established what differentiates the two? Where is the evidence that ‘irregular’ asylum seekers are any more likely to abscond than those housed in the community? Attention would no doubt then be drawn to the negative inferences arising from unauthorised entry. But on the contrary little can be inferred from this factor in isolation. Experience shows that the current wave of ‘boatpeople’ do not employ irregular channels as a means of infiltrating the community undetected – as a means of achieving a ‘migration’ outcome, but as a means of obtaining legitimate access to the refugee determination process. Far from seeking to avoid official scrutiny, these people actively seek to engage it. The vast majority of those arriving by such means are subsequently determined to be Convention refugees. Indeed, the comparative success of such arrivals relative to that of ‘community’ asylum seekers casts further doubt on the logical basis for current detention practice. Generally speaking detained asylum seekers have greater incentive not to abscond because they are far more likely to win official leave to remain (albeit grudging and temporary).
While upholding the moral, social and economic advantages of detention alternatives, the author does not maintain that all unauthorised entrants seeking asylum should automatically be released into the community as a matter of principle. Community release should be dependent on the individual asylum seeker meeting necessary [9] health, identity and security requirements [10]. By the same token, absconding risk must also be assessed and given due weight.
Issues of compliance and absconding constitute the raison d’etre of pre-release risk assessment. This in its turn proceeds from the rationale that individuals posing a high risk of absconding can be identified with considerable confidence, even in the early stages of the asylum process. Such asylum seekers could be precluded from community release. It is informed opinion of the author however that such high-risk individuals would account for only a small proportion of unauthorised asylum seekers so assessed. The remainder would be determined eligible for release into the community, albeit under varying degrees of constraint.
Recalling the plight of children asylum seekers it must be emphasised that the likelihood of any child fleeing into the community, there to live undetected and illegally, is remote in extremis. It is therefore difficult to envisage any circumstances in which detention of children could justifiably be imposed upon compliance grounds.
The relationship between compulsory pre-release screening and comprehensive detention alternatives is inherently interdependent. That is, for optimal success such pre-release screening would need to function in tandem with a flexible range of detention alternatives to provide an environment that discourages absconding through a combination of incentives and disincentives. One in which the level of restriction imposed on each individual asylum seeker can be linked proportionally to the level of risk identified via screening.
At the level of the particular, there are a variety of safeguards that could be implemented: residence at designated address, bonds, recognisance, sureties, notification of change of address, reporting requirements, threat of return to detention etc. Likewise, positive incentives not to abscond would include receipt of assistance from ‘case officers’ and other support networks (legal advice, community mentors), access to work rights, Medicare, living benefits etc.
Demonstrated risk of absconding - an unreasonable threshold?
One reasonable objection raised against a universal assessment procedure is that practically speaking, it is very difficult for governments to demonstrate such a risk. [11] However, the difficulty perceived to inhere in any such assessment is largely contingent on the level of proof expected. Of course it is completely unreasonable to expect a government to demonstrate beyond all reasonable doubt that any particular asylum seeker will abscond if released – government decision makers are limited by incomplete information and obviously are in no position to make unequivocal judgements about the future.
But this caveat extends to every facet of the refugee determination process. All parties accept the inherent deficiencies of the system because ultimately a flawed determination system is far preferable to no determination system at all. Difficulties notwithstanding criteria have been established that strike an adequate balance between the domestic concerns of states and the stipulation of international human rights law. Correlatively, the same can be argued with respect to the formulation of absconding assessment criteria applicable on a case-by-case basis to asylum seekers. Such assessment criteria could take their place alongside other measures of necessary detention – i.e. identity verification, security checks and ascertainment of basis of claim.
The following list is in no way presented as definitive; it is offered merely as an illustration of the sort of informed considerations that might play a part in assessing an individual’s risk of flight. It is emphasised moreover that in practice, identified trends in absconding will serve to refine assessment criteria.
The following categories are separated to distinguish between those that are intrinsic to, and those that exist beyond the agency of the individual applicant and are therefore amenable to manipulation via government/community intervention. The stark division drawn between personal/systemic factors is largely artificial – in reality the boundaries would be fluid or non-existent – but for the sake of analytical clarity it has been maintained.
Incentives/disincentives to abscond:
Personal:
- Perceived strength of claim - applicant
The key to the assessment is not whether the asylum seeker has a good case, but rather whether the asylum seeker thinks he or she has a good case, on the basis that as long as the asylum seeker believes the claim to be a deserving one then he or she will go to appointments and is unlikely to abscond. - Sex/age/family ties
Generally young, single males are more likely to abscond than women, children, or family units. They are likely to find it easier to survive as illegal aliens within the community – being free of dependents, and the concomitant responsibilities they bring, having greater options for illegal work, and being better equipped to escape detection. Women and children are liable to present a very low absconding risk for all the same reasons. The notion of proportionality should also be invoked in these cases: a relatively higher risk of absconding would have to be demonstrated to render said risk proportionate on balance to the grave human rights implications of detaining vulnerable individuals. - Community/relatives
The presence of established extended families, or ethnic groups within the community has been demonstrated to be a strong incentive not to abscond. Such groups offer both support and guidance to the asylum seeker, and are able to forge bonds of trust and obligation that the released individual is unlikely to wish to betray. [12] - Desire to obtain durable solution
The decision to accept the enormous hardships and risks inherent in flight from countries of origin to Australia is not taken lightly. Such refugees are seeking a durable solution to their fears and hence possess a strong intrinsic interest in complying with official procedure. Long-term security and well-being are unlikely to be achieved through flight into the community.
Systemic:
- Desire to access and maintain social services - benefits, work rights etc.
A system that provides benefits and services to asylum seekers who comply with established determination procedures simultaneously discourages abscondment. Where such inducements are offered they constitute a powerful compliance incentive. Until recently in New Zealand for example, claimants were typically released into the community under their own recognisance. In the wake of September 11 however, it has been policy to initially detain almost all those seeking asylum at the border. Before the new policy took effect just 5 per cent of asylum seekers were detained. Since September 19, 94 per cent have been detained. [13] On a more heartening note, the future of the new measures has been called into doubt by the High Court, which recently ruled the policy unlawful and "fundamentally defective".
The new policy notwithstanding asylum seekers once in the community, continue to receive work permits, access to employment services and unemployment benefits. A positive by-product of such provisions is that ongoing receipt is tied to ongoing confirmation of address. All such benefits, along with the accompanying disincentives to abscond, cease if and when asylum seekers exhaust the determination process.
Recent Australian history has witnessed a concerted effort to take away rights and benefits formally extended to asylum seekers and refugees. As a consequence asylum seekers have a steadily diminishing pool of benefits to loose, and correlatively fewer incentives not to abscond.
- Legal representation
Access to legal counsel is liable to have positive effects on both a practical and psychological level. The refugee process is completely alien to most applicants, who find it enormously intimidating and stressful. The aid of a specialist versed in refugee law will improve the asylum seekers chances of obtaining refugee status. By the same token, the applicant will gain a boost in confidence along with the reassurance that they will have a fair and expeditious hearing. For all these reasons and more, legal representation lessens the risk of absconding. - Stage of claim
Typically the incentive not to abscond is greatest during the early stages of the application process. The expectation of refugee status is more than enough to keep most asylum seekers compliant with official procedures.
Even DIMIA has formerly conceded that absconding is not generally an issue during the course of the determination process:
“4.13 Another reason for detention of unauthorised arrivals, in DIEA’s view is that it ensures the availability of applicants for processing and, if necessary, removal from the country. DIEA advised that, from its experiences with applicants in the community, there usually is no problem in maintaining contact with an applicant while the application is being assessed. However, if the decision is negative, problems in locating and removing applicants can and do arise. (JSCM p.110-111).
The crux of departmental concern rests therefore with addressing the risk of absconding in the event of an applicant exhausting all possible avenues to refugee status. This is logical, as failure at each subsequent stage is liable to shake the confidence of the applicant in their claim, and will add to the temptation to flee to evade the prospect of forced removal.
However this small truth exposes a big lie, for if compliance (particularly absconding) does not constitute the real reason for mandatory, arbitrary, indefinite detention, then we are entitled to ask what does.
Returning to the implications of the small truth, and as is acknowledged in the findings of the AAP (see below), ongoing assessment throughout the determination process is desirable, and a return to detention may be warranted in some cases for asylum seekers who have exhausted their avenues of appeal.
- Perceived strength of claim – decision maker
While every claim is unique there are definite ‘standard’ claims, generally issue and nationality based, that allow decision makers at a very early stage of proceedings to predict outcome. One-child policy claims in the case of China, or fears of persecution held by ethnic Chinese in the case of Indonesia, are two examples. While not all applicants will be aware that their plight has only a remote chance of Convention recognition, it is likely that this will become apparent to them on release into the community. To some such claimants the incentives to pursue their claim could well be outweighed by fear of return, increasing the temptation to abscond at an early stage. This possibility would be one relevant consideration in countenancing what degree of restriction on movement to impose. - The presence of established community release programs
This would encompass the breadth of measures incorporated in proposed alternative models. Suffice to say such models seek to afford a variety of incentives to compliance (supervision, support services, monitoring requirements, bail or sureties etc.). Participation in such programs will discourage resort to absconding. - Legality of entry
Generally speaking, if an individual is willing to violate immigration procedures to access the asylum process then it might be presumed that they would be more liable to ignore officially sanctioned process if released into the community – especially if removal is sought. The operative word here is presumed, and for reasons alluded to above, this presumption must be tested and balanced against other more compelling factors, such as the perceived strength of the claim. In and of itself legality of entry provides a crude and indiscriminate tool of ‘assessment’. - Overarching philosophy of the system
From the moment they arrive in Australian waters irregular asylum seekers are confronted with the inescapable realisation that the government presumes the worst about them. Interactions between the two are defined by the heavy-handed and punitive stance adopted by the government. What sort of disposition is this encouraging in asylum seekers, an obligation to ‘play by the rules’ and do right by the Australian community, or an inclination to simply confirm the fears projected upon them? This is not a relationship based on trust but on mutual fear and suspicion. Would those eligible for release into the community be likely to have any confidence that the system will deliver them a fair and just solution? Current recourse to a system of punitive deterrence has created a climate encouraging absconding.Nor should we take false comfort in the belief that such is an inevitable consequence of refugee determination. In fact, there is an enormous wellspring of gratitude and goodwill evinced by asylum seekers/refugees. Even during the fraught asylum process they display gratitude - they want to be good citizens, they want to contribute, and they want to do right by the country that offers them at the very least a considered, fair hearing of their case. All these factors (and more) contribute to the likelihood not only of absconding, but also of success once in the wider community. This is not to deny that all those good intentions are unlikely, in isolation, to compel a desperate person whose claim has been denied to return to possible danger or hardship voluntarily. But the significance of the goodwill and gratitude that arises from extending trust and treating people humanely and with dignity should not be underestimated, especially when augmented with sensible, prudent measures that encourage compliance.
This is no empty assertion; it is born of professional experience, and corroborated by the findings of the Hotham mission in Australia and the AAP report in the United States. [14]
International case study – USA: The AAP trial
In 1996 the Immigration and Naturalization Service (INS) asked the Vera Institute of Justice to establish what became known as the Appearance Assistance Program (AAP), a three-year test of community supervision for people in immigration removal proceedings in New York City. The INS goal was to explore supervision and evaluate its effect on people’s rates of appearance in court and compliance with court rulings compared to other alternatives to detention already used by the agency, such as bond, parole, and release on recognizance. This course was deemed necessary on account of the fact that these latter methods had realised only limited success. Four years ago the INS estimated that only 50% of noncitizens released into the community appeared in court. Statistics also showed that those not detained pending their required departure from the country had a compliance rate of 11%. Notably, DIMA officials have cited relatively high absconding rates in the US in support of the contention that ‘parole’ type arrangements are unsuitable in the Australian context. [15]
Several important findings and conclusions arose from the AAP trial.
Overall about 90% of supervised noncitizens appeared in court compared to 71% of nonparticipants. Those asylum seekers in the intensive, supervised program attended all court hearings at a rate of 93%. Regular participants achieved an attendance rate of 84%. Notwithstanding the fact that participant asylum seekers were repeatedly told that they would be redetained in court if they were ordered removed. [16]
The report further noted that the most important factors encouraging compliance with hearing requirements were representation by counsel and the presence of community and family ties in the United States.
Notably, participants and comparison groups of asylum seekers with equivalent community ties attended hearings at about the same rate. Participant asylum seekers achieved a higher rate than those released on parole because AAP, in assessing those eligible to participate screened more effectively for community ties.[17] The lesson to be drawn is not so much that intensive supervision failed, but that in the case of asylum seekers its stringent requirements proved gratuitous. Gratuitous, because asylum seekers generally possess a strong vested interest in pursuing the application process to its conclusion, and therefore pose a low absconding risk irrespective of differences in level of supervision. [18]
Special attention was drawn to the positive implications arising out of the AAP’s practice of treating asylum seekers with dignity and trust:
“Their appreciation fostered a great sense of obligation and therefore a willingness to cooperate and comply. Many formed a bond with the AAP staff and wanted to preserve the good relationship. Individual responses to the question of why they complied included the following from asylum seekers: “obligation to AAP,” “I told the AAP that I would show up so I did,” “Although I thought the case was not in my favor, I made an obligation to the AAP and I did not want to let them down.” Furthermore, not only were they concerned about their own futures but also about preserving the program for future asylum seekers. Two people said that their performance in the program could help other detainees get released in the future.” [19]
In summing up with respect to its asylum seeker participants, the AAP report concluded that:
“Asylum seekers do not need to be detained to appear for their hearings. They also do not seem to need intensive supervision. If they had been better screened, the asylum seekers released on parole from Elizabeth would have done just as well as those under supervision. Detention of asylum seekers is particularly unnecessary and unfair since they are so willing to attend their hearings and since so many of them win their cases.” [20]
The AAP constitutes an empirical demonstration of how a well-tuned risk assessment procedure applied in tandem with a graduated, comprehensive range of detention alternatives can achieve very high compliance rates without imposing severe restrictions on the movements of most asylum seekers.[21] Indeed, and on the strength of the scheme, the VERA Institute of Justice recommended that:
“A cost-effective strategy for the INS in future might be to release asylum seekers to a minimal level of supervision, rather than only to parole. This would permit the agency to track the progress of the asylum seekers through their hearings, to maintain contact with them, and to make provisions to redetain those ordered removed at their final hearing. Depending on an assessment of their risk of flight, asylum seekers could be released again to a more intense level of supervision while they appeal the removal order, subject to redetention if they violate the supervision program’s rules. This strategy would protect the liberty of those who come to the United States seeking asylum, reduce INS costs, and promote compliance with the law.” [22]
Attention can be directed to many other sources in support of this contention:
- No unauthorised asylum seeker released on a bridging visa in Australia from 1996-1998 failed to meet their reporting obligations to DIMA. [23]
- A INS experiment in the US of 640 detainees released into the community, with about 95% complying on release. [24]
- Since late 2000, the Asylum Seeker Project has been providing assistance to asylum seekers released from detention. None have absconded. [25]
Conclusions
The international protection system represents an imperfect but ultimately compassionate response to the plight of those desperately in need of surrogate protection. It is however vulnerable to abuse, notably by those who seek its benefits without genuinely meeting its criteria.
The Australian government has adopted a hard-line in confronting the spectre of such abuse. It does prevent all irregular asylum seekers from accessing the community - men, women and children - but inevitably fails to prevent refugee status fraud, and indeed the occasional escape.
The little absconding data publicly available, when read in light of asylum seekers’ undeniable incentives to comply, strongly suggests that well-considered alternatives such as the TPR model would be highly successful if implemented. Ensuring that Australia meets its human rights obligations to the international community, they would also ensure that a high proportion of asylum seekers meet their obligations to the Australian government.
However these models will not succeed, and more importantly will never be given the opportunity to succeed, unless the government can be convinced that they will adequately address the issue of absconding. The critical first step towards this goal is the development of a screening process that can be employed to assess risk of flight. An integral part of assessing whether individual asylum seekers are eligible for release, it should also form the basis of ongoing risk evaluation once applicants are living in the community.
Practically speaking, the biggest obstacle to any of this being implemented is the government’s deeply held zero-tolerance mindset. This is from the 1994 JSCM report Asylum, border control and detention, but its sentiments remain entrenched today:
4.14 According to DIEA, any alternatives to detention of unauthorised border arrivals would need to offer the Department a level of access to persons, for processing of the refugee application and for removal where refugee claims are not sustained, which is similar to the access which is available when border arrivals are held in detention. In this regard DIEA expressed significant doubt that an alternative to detention could be relied upon to satisfy this requirement. (p.110-111).
Allowing asylum seekers to live unfettered in the community while their claims are in process will invariably result in some individuals absconding. Even the most well-tuned community release model will not afford a degree of access ‘which is similar to’ that offered by mandatory detention – i.e. absolute.
In practice, most states accept a degree of absconding on balance, the moral obligation to protect those in need being seen to outweigh the deleterious impact of low-scale abuse on the system. Among other things, it is deemed unconscionable to subject a large majority to the trauma of detention on account of the abusive intent of a small minority who inevitably abscond. The present Australian government seems not to share this attitude.
The threat of absconding presents no insurmountable barrier to the successful implementation of a comprehensive community release program. The fact that comprehensive detention alternatives have not been established in Australia cannot be attributed to a lack of viable proposals, but to a lack of political will.
Steven Columbus 1/9/2002
1. Guideline 4 of the UNHCR revised guidelines on applicable criteria and standards relating to the detention of asylum seekers, UNHCR, (February 1999).
2. Detention proposals, K. Rivett, 10 September 2001, (http://www.refugeecouncil.org.au/Rivettmodel.htm)
3. “Howard stands by policies”, AAP, 25/1/2002.
4. Consider for example this from UNHCR’s Refugee Children: Guidelines on Protection and Care, 1 January 1994, (http://www.asylumsupport.info/publications/unhcr/refugeechildren.htm): “Families must be kept together at all times, which includes their stay in detention as well as being released together”.
5. Personal conversation with Grant Mitchell (5 April, 2002).
6. See for example Australia - A continuing shame: the mandatory detention of asylum seekers, Amnesty International, 1998 (http://www.amnesty.org.au/whatshappening/refugees/index-16.html): “It is internationally accepted that protecting national security and preventing illegal immigration can be legitimate grounds for exceptional, temporary detention of unauthorised asylum-seekers in individually determined cases. (See UNHCR EXCOM Conclusion No. 44, paragraph b, outlined in Chapter 2.1, supra.) Amnesty International acknowledges Australia's right to control entry into the country and that there is a possibility that some asylum-seekers may abscond into the community if released from initial detention. However, this possibility should be assessed case by case.”
7. See Amnesty International's response to the White Paper on asylum and immigration (UK) (www.amnesty..org.uk/action/camp/refugees/asylum.shtml) and Australia - A continuing shame: the mandatory detention of asylum seekers, Amnesty International, 1998.
8. This argument has been put forward by the Minister for Immigration in a number of meetings with representatives of Amnesty International.
9. As defined in the UNHCR Guidelines on the detention of asylum seekers.
10. Security concerns have of course been very much a live issue in the wake of September 11, and the correlation between asylum seekers and terrorists was explicated very clearly by some Liberal MPs in the ensuing election campaign. Notable in this regard are the recent comments by ASIO, who following the processing of security clearances for over 6000 refugee claimants (not one of which was rejected on security grounds), asserted that it had found no evidence so far that asylum seekers are a threat to Australia's security (http://www.abc.net.au/news/justin/nat/newsnat-22aug2002-63.htm).
11. Kenneth Rivett argues that it “would very seldom be possible for a government to demonstrate that an asylum seeker, about whom at first it would know almost nothing, was likely to abscond.”
12. See discussion of AAP program below.
13. “Refugee case will open way to claims”, by Helen Tunnah, The New Zealand Herald (28/6/2002), http://www.nzherald.co.nz/storydisplay.cfm?thesection=news&thesubsection=&storyID=2049130. See also for an up to the date overview, “Freedom’s Ramparts on the Sea” The Detention of Asylum Seekers in New Zealand, The Human Rights Foundation of Aotearoa New Zealand & Refugee Council of New Zealand Inc. (May 2002).
14. Throughout, the author draws heavily on his experience as a refugee determination officer with the New Zealand Refugee Status Branch. In drawing attention to the positive outcomes of the Asylum Seeker Project, The Hotham Mission notes that, “We have also had extremely high figures in our clients complying with decisions and registering with Compliance, much of this being built on the trust we have placed in our clients.” During the period October 1999-September 2001 the Asylum Seeker Project has worked with approximately 90 asylum seekers. Currently it provides post-release support for 23 asylum seekers released on bridging visas. No asylum seekers have absconded. For further information consult: Transitional processing and reception (TPR) model, Justice for Asylum Seekers Coalition.
15. Sea change: Australia’s new approach to asylum seekers, USCR, February 2002, (http://www.refugees.org/pub/australia2.cfm) p.25.
16. See Testing community supervision for the INS: An evaluation of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino, A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000. (http://www.vera.org/section4/section4_4.asp). Participants were screened for involvement in one of two programs: intensive or regular supervision. Intensive participants were initially detained by the INS and then released to the AAP. That is they comprised noncitizens who would otherwise have been detained throughout processing. Their position is therefore analogous to that of irregular asylum seekers in Australia. During supervision they experienced rigorous monitoring and ongoing re-evaluation of absconding risk. Regular participants were those apprehended by the INS but deemed eligible for release on recognizance. They entered the program voluntarily.
17. Testing community supervision for the INS: An evaluation of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino, A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000. (http://www.vera.org/section4/section4_4.asp) p.7.
18. Ibid. p. 29.
19. Ibid. p. 59.
20. Ibid. p. 31-32.
21. Testing community supervision for the INS: An evaluation of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino, A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000. (http://www.vera.org/section4/section4_4.asp) p.30-31.
22. Testing community supervision for the INS: An evaluation of the Appearance Assistance Program. Volume 1, by E. Sullivan, F. Mottino, A Khashu, and M. O’Neil, VERA Institute of Justice, August 1, 2000. (http://www.vera.org/section4/section4_4.asp) p. 31-32.
23. 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)
24. AC Helton, ‘Reforming Alien Detention Policy in the US’, 1992. In his discussion of absconding risk Rivett draws attention to an earlier American study relating to community release:
“An instance of the confusion some supporters of the UNHCR position have got into is when they quote the experiment by Arthur Helton, described in a useful book edited by Dr Mary Crock and entitled Protection or Punishment? (Sydney, Federation Press, 1993). Helton reports that in the United States in 1992, 2000 detainees were interviewed, 32 per cent were released on parole, and about 95 per cent of those applicants appeared later to have their claims considered. But of course the experiment only gave such promising results because 68 per cent of those who had been considered for release were still detained. Such results could not have been obtained if the risk of absconding had been disregarded in deciding which asylum seekers should be detained in the first place.”
Which is consistent with the key thrust of this submission, that a well-balanced, humane screening procedure is integral to the success of any viable detention alternative.
25“Alternative approaches to asylum seekers: Hotham Mission as a model of community release”, Submission to the HREOC National inquiry into children in immigration detention, Grant Mitchell (25/4/2002).
26. This consideration represents the common denominator under girding most decisions to detain, irrespective of context. ECRE’s Research paper on alternatives to detention: Practical alternatives to the administrative detention of asylum seekers and rejected asylum seekers, September 1997 (www.ecre.org/research/alterns.pdf), asserts that: “As its starting point, the paper takes government statements of the reasons for detaining asylum seekers at face value: European governments say that they increasingly resort to detention because they need to reduce the number of asylum seekers who abscond during the asylum procedure or who fail to comply with deportation orders. The most common ground for detention is thus “likelihood of absconding”, a likelihood which is assessed broadly, with reference to nationality or to the fact that the person perhaps entered the country with false documents.
Last Updated 14 July 2003.