Questions and Answers About Refugees & Asylum Seekers

The information on this page is outdated. For more recent information about asylum seekers and refugees, see the 2012 Face the Facts page and the Commission's page on asylum seekers and refugees.

Face the Facts 2005

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Questions and Answers About Refugees & Asylum Seekers

1. Who is a refugee ?
2. What is Australia's policy on refugees ?
3. How many refugees come to Australia ?
4. Who is an asylum seeker ?
5. What happens to asylum seekers in Australia ?
6. Why are asylum seekers allowed to stay in Australia ?
7. What is the 'Pacific Solution' ?
8. What is immigration detention ?
9. How does Australia help refugees settle ?
10. Further reading

1. Who is a refugee?

According to the United Nations Convention and Protocol relating to the Status of Refugees (also called the Refugee Convention), a refugee is someone who is outside their own country and cannot return due to a well-founded fear of persecution because of their:

• race
• religion
• nationality
• membership of a particular social group or
• political opinion1

A person becomes a refugee under international law once she or he crosses an international border and is assessed as meeting the definition of a refugee, either by a national government or an international agency such as the United Nations High Commissioner for Refugees (UNHCR).http://www.unhcr.ch/cgi-bin/texis/vtx/home

In popular use, the term refugee is often interpreted more broadly than its legal definition to include all people who flee their homes seeking refuge from harm. There are many circumstances which could force someone to flee to safety, including war or civil strife, domestic violence, poverty and natural or man-made disasters. However, the Refugee Convention only recognises people as refugees if they are displaced from their home country because of persecution on the basis of their race, religion, nationality, membership of a particular social group or political opinion.

Two important points to note about this definition are:

• a person has to be outside their country of nationality or usual residence when making a refugee application; and
• the fear of persecution has to be well founded - that is, the person fleeing must have experienced the persecution or be likely to experience it if he or she returns.

How do refugees differ from migrants?

Refugees are not in the same situation as migrants, although the two groups are often confused. Migrants choose when to leave their country, where they go and when they return. Refugees flee their country for their own safety and cannot return unless the situation that forced them to leave improves.

How many refugees are there worldwide?

There are about 9.7 million refugees around the world. Asia hosts more than one third of the world's refugees (3.6 million), followed by Africa (3.1 million), Europe (2.2 million) and North America (0.58 million).2

In 2002, the number of refugees globally dropped by nearly 14% from 12 million to 10.4 million compared with the previous year. This was principally because of the return of some 2 million civilians to Afghanistan, with 2.5 million Afghan refugees remaining in exile.3

At the end of 2003, the global refugee population dropped again to 9.7 million, principally because of the return of nearly 650,000 Afghans from neighbouring Pakistan and Iran. Two million Afghan refugees remained in exile. 4

Less developed countries are both a major source and a major destination for refugees. Between 1992 and 2001, 86% of the world's refugees came from developing countries and 72% of the global refugee population were hosted in developing countries.5

In 2003:

• Afghanistan was by far the largest country of origin of refugees (2.1 million). Other major origins of refugee populations were Sudan, Burundi, DR Congo, Palestine, Somalia, Iraq, Vietnam, Liberia and Angola.6
• The top five host countries for refugees were Pakistan (1.1 million), Iran (985,000), Germany (960,000), Tanzania (650,000), and the United States (452,500).7

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2. What is Australia's policy on refugees?

The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), through its Humanitarian Program, aims to:

• assist people in humanitarian need overseas for whom resettlement in another country is the only available option; and
• comply with Australia's international obligations onshore under the Refugee Convention.

The program has two main parts: off-shore resettlement and on-shore protection.

Off-shore resettlement

The off-shore resettlement program is for refugees and other 'humanitarian entrants' who apply for a visa from outside Australia.

There are two categories of permanent visas and two categories of temporary visas under the off-shore component of the Humanitarian Program.

a) Permanent off-shore humanitarian visas

• Refugee Visas: for people outside their home country who satisfy the Refugee Convention definition of 'refugee' and who are in need of resettlement because they cannot return to their own country or stay where they are.8
• Special Humanitarian Program Visas: for people outside their home country who have experienced substantial discrimination amounting to a gross violation of human rights in their home country. A proposer, who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or an organisation that is based in Australia, must support such an application for entry.9

b) Temporary off-shore humanitarian visas

Changes to the Migration Act 1958 (Cth) (Migration Act) introduced in September 2001 created two new categories of temporary off-shore humanitarian visas. These new visas were introduced to encourage asylum seekers to remain in their country of first asylum, that is, the first safe country where they can seek and obtain effective protection outside their home country. Both these visas are only available to asylum seekers who have spent less than seven days in a country where they could have sought and obtained protection. 10

• Secondary Movement Relocation Visas: for people outside their home country who are subject to persecution or substantial discrimination in their home country (or women registered as being 'of concern' to the United Nations High Commission for Refugees (UNHCR). This visa is available to asylum seekers who have moved from a safe first country of asylum but have not yet entered Australia. This temporary visa is valid for five years and people who hold this visa may apply for a permanent protection visa after four and a half years if there is a continuing need for protection.
• Secondary Movement off-shore Entry Visas: for people outside their home country who are subject to persecution or substantial discrimination in their home country (or women registered as being 'of concern' to the UNHCR). This visa is available to asylum seekers who enter Australia at a place outside Australia's migration zone (such as Christmas Island, Ashmore Reef or the Cocos Islands). This temporary visa is valid for three years and the people who hold this visa are not entitled to permanent residence. Holders of this visa are eligible for successive temporary protection visas, if there is a continuing protection need.

Click below for further details of the four kinds of off-shore resettlement visas.

DIMA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program DIMIA, Migrating as a Refugee or Humanitarian Entrant

On-shore protection

People can be recognised as refugees once they are already in Australia by applying for a 'Protection Visa' (PV). To get a Protection Visa, asylum seekers must show that they satisfy the Refugee Convention definition of 'refugee' and that Australia has an obligation to protect them. Australia is only obliged to protect refugees if: 11

• The applicant has a well founded fear of persecution on grounds covered by the Convention.
• The applicant does not have effective protection in another country.
• The applicant is not otherwise excluded from the operation of the Convention (eg. because of security concerns).

Protection Visas are either permanent or temporary depending on how the refugee entered Australia.

• Permanent Protection Visas (PPV): for people who arrive in Australia with a valid temporary visa (such as a tourist or student visa) and are found to be refugees that Australia is obliged to protect. Applicants receive a bridging visa upon lodging a PPV application. In most cases, the bridging visa allows the applicant to remain lawfully in the community until the PPV application is finalised. Some bridging visas allow the applicant to work in Australia while others do not have work rights attached. PPV applicants are also eligible for financial assistance for basic food, accommodation and health care while their applications are being processed. 12
• Temporary Protection Visas (TPV): for people who arrive in Australia without a valid visa and are found to be refugees that Australia is obliged to protect. People applying for this type of visa must also meet health and character requirements. The TPV gives them temporary residence for three years. After three years, depending on when and how they arrived in Australia, some can apply for a PPV while others can only reapply for another TPV. The TPV provides only limited access to government assistance for settlement compared with other protection visas. TPV holders cannot automatically sponsor their families to join them in Australia and they need special approval to re-enter Australia if they leave. Since its introduction in October 1999 to June 2004, a total of 8,801 people have been granted TPVs.

Click here for more information about Temporary Protection Visas.

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3. How many refugees come to Australia?

Each year, DIMIA sets a quota for the number of visas it grants under the Humanitarian Program. This quota includes off-shore and on-shore visas. This quota has remained roughly the same (about 12,000 visas per annum) for the past seven years. In 2003-04, Australia granted a total of 13,851 visas under the Humanitarian Program. This comprised 11,802 visas granted to persons overseas and 2049 visas granted to people in Australia. 14

Table 3.1: Humanitarian Program, visa grants by category, 1998-99 to 2003-04

*Note: This figure includes 5,900 Safe Haven Visas, comprising 4,000 grants to Kosovar refugees off-shore and 1,900 grants to the East Timorese refugees on-shore.

** Note: This figure includes 1,228 grants to the East Timorese refugees onshore.

Source: DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program, http://www.immi.gov.au/media/fact-sheets/60refugee.htm (accessed 15 February 2005)

Table 3.2: Humanitarian Program Outcomes 200304

* Temporary Humanitarian Concern Visas granted to Safe Haven visa holders who required medical treatment in Australia.

** Includes 1,228 visas granted to East Timorese refugees under Ministerial intervention powers.

Source: DIMIA, Population Flows Immigration Aspects 2003-04, January 2005, Figure 2-21, 'Humanitarian Programs Outcomes 2003-04', page 32, at: http://www.immi.gov.au/statistics/publications/popflows2003_4/index.htm,

Where do refugees come from?

In 2003-04, a total of 13,851 people were granted visas under the Humanitarian Program, including 11,802 off-shore and 2,049 onshore applicants.15

In 2003-04, Australia granted off-shore visas to people from three main regions:

• Africa (70.6%): major source countries included Sudan, Ethiopia and Liberia.
• Middle East and South West Asia (24.4%): major source countries included Iraq, Afghanistan and Iran.
• Europe (3%): major source countries included the Federal Republic of Yugoslavia. 16

Table 3.3: off-shore Resettlement Program, visa grants by region, 1998-00 to 2003-2004

* Includes 311 grants to mainly Afghan and Iraqis in the off-shore Processing Centres in Papua New Guinea and Nauru.

** Includes 90 grants to mainly Afghan and Iraqis in the off-shore Processing Centres in Papua New Guinea and Nauru.

*** Numbers do not equal total, due to discrepancies not explained by the original document.

Source: DIMIA, Fact Sheet 60 Australia's Refugee and Humanitarian Program (accessed 15 February 2005).

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4. Who is an asylum seeker?

An asylum seeker is someone who has fled their own country and applies to the government of another country for protection as a refugee.

As a signatory to the Refugee Convention, Australia must comply with its obligations and ensure that all those who make claims for protection while in Australia have their claims assessed in accordance with the Refugee Convention.

To find out the difference between a 'refugee' and an 'asylum seeker' click here http://www.refugeecouncil.org.au/html/facts_and_stats/facts.html

How many asylum seekers are there worldwide?

During 2003, 809,000 people applied for asylum worldwide. Combined with applications still pending from previous years, the total number of asylum seekers worldwide numbered 985,500 at the end of 2003.17 Many asylum seekers make refugee applications in neighbouring countries, while some apply in countries further afield. Because mainland Australia shares no land border with any other country and is far from most major conflicts, relatively few people seek asylum here compared to the United States and Europe. For example, in 2003 about 4,260 people sought asylum in Australia (this excludes persons who, since September 2001, arrived at Australia's excised migration zones or are being processed in Papua New Guinea or Nauru). This compares with 61,050 in the United Kingdom, 60,670 in the United States and 31,860 in Canada. 18

In March 2004, the United Nations High Commissioner for Refugees (UNHCR) released annual statistics on asylum seekers arriving in industrialised countries. 19 The statistics revealed that:

• The number of asylum seekers arriving in industrialised countries fell sharply for the third year in a row in 2004.
• This is the lowest level of asylum seekers arriving in industrialised countries for 16 years.
• The number of asylum claims in industrialised countries fell by 22% in 2004, adding to a similarly steep decline in 2003.
• The number of asylum claims in Australia and New Zealand fell by 28%, compared to falls of 26% in North America and 19% in the European Union.

Click here for further details of asylum applications submitted in select industrialised countries in 2003 and asylum claims in 2004

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5. What happens to asylum seekers in Australia?

Asylum seekers in Australia are treated differently according to whether they entered Australia as 'authorised' or 'unauthorised' arrivals. 20

• 'Authorised' arrivals enter Australia with a valid visa (such as a tourist or student visa). Asylum seekers who are 'authorised' arrivals can apply for a permanent protection visa (PPV). Until their refugee application is decided, they are usually granted a 'bridging visa' which allows them to live in the community. Some have permission to work or, in exceptional circumstances, may receive financial help from the government if they cannot meet their most basic needs for food, accommodation and health care.21 Authorised arrivals who are not found to be refugees according to Australian migration law may be detained until they are removed from the country.22
• 'Unauthorised' arrivals enter Australia without a valid visa. Australia detains 'unauthorised' arrivals while their refugee applications are decided. Those found to be refugees according to Australian migration law and who pass medical and security tests are granted a temporary protection visa (TPV). 23 Unauthorised arrivals who are found not to be refugees under Australian migration law remain in detention until they are removed from the country. 24

How do 'unauthorised' arrivals enter Australia?

'Unauthorised' arrivals enter Australia by sea and air. In recent years, most asylum seekers have come to Australia by sea.

Boat arrivals

Since 1989, 13,593 people came to Australia by boat without approval of the Australian Government. 25

• In 2001-02, 1,277 people arrived in Australia by boat without a visa.
• In 2003-04, 53 people arrived in Australia by boat without a visa. They were taken to Christmas Island and processed by DIMIA. 26
• On 4 November 2003, 14 Turkish Kurds were detected off Melville Island approximately 70 kilometres north of Darwin. Regulations excising this and other northern islands from Australia's migration zone were introduced by the Government on the same day. 27 The Regulations were originally disallowed by the Senate on 24 November 200328, but were reintroduced and passed in July 2005.29

Table 5.1: Boat arrivals since 1989

Source: DIMIA, Fact Sheet 74 - Unauthorised Arrivals by Air and Sea http://www.immi.gov.au/facts/74unauthorised.htm (accessed 15 February 2005)

Table 5.2: Visa status of people arriving by boat since 1989 (to 2003-04)

Source: DIMIA, Fact Sheet 74a - Boat Arrival Details http://www.immi.gov.au/facts/74a_boatarrivals.htm (accessed 15 February 2005)

Air arrivals

Non-Australian citizens are identified as arriving illegally in Australia if they arrive with no travel documents (or with improper travel documents, such as expired or cancelled visas or documents which are found to be fraudulent). If such an arrival claims to be a refugee, their application for a protection visa is assessed before any decision about whether to remove them from Australia, is made. 30

• In 2001-02, 1,193 people were refused entry at Australia's airports.
• In 2002-03, 937 people were refused entry at Australia's airports
• In 2003-04, 1,241 people were refused entry at Australia's airports. 31

Who decides refugee applications?

Once in Australia, an asylum seeker applies for refugee status to Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). If DIMIA rejects the application, the asylum seeker can apply to the Refugee Review Tribunal (RRT).

When a permanent protection visa (PPV) application is made, an officer from DIMIA, acting as a delegate of the Minister, decides if the applicant engages Australia's obligations under the Refugee Convention. This is done by assessing the claim against the definition of a refugee set out in that Convention. If the application is successful, the applicant is granted the appropriate protection visa.

Where an application by a person in Australia is refused, that person can seek a merit's review of that decision from an independent tribunal - either the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal.

The RRT also examines the applicant's claim against the Refugee Convention definition. If the RRT makes a decision unfavorable to the applicant on the written evidence available, it must give the applicant the opportunity of a personal hearing.

Applicants rejected by the RRT (and who have no other legal reason to be in Australia) have 28 days to depart Australia. If they stay beyond this 28-day period, they may be removed from Australia. People who cannot be removed, because they are 'stateless' (no state considers them to be a national of their country), may be held indefinitely in immigration detention while waiting to be deported. The Government's power to indefinitely detain non-citizens under this arrangement was upheld by the High Court in the case of Al-Kateb v Godwin. 32

The Minister has the power to intervene after an RRT or AAT decision relating to a protection visa, but is not compelled to do so. The Minister may intervene to substitute a more favourable decision to the applicant if the Minister believes it is in the public interest. 33

Applicants may also seek a judicial review of an RRT or AAT decision if they wish to have that decision reviewed by the courts. A judicial review involves a court looking at the way in which the decision was made to determine whether the decision maker made any legal errors.34 Judicial review of an RRT or AAT decision is available in the Federal Magistrates Court, Federal Court and the High Court. However, legislation that commenced in October 2001 significantly restricts the grounds on which decisions may be challenged in the Courts. 35

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6. Why are asylum seekers allowed to stay in Australia?

Every country that has adopted the Refugee Convention, including Australia, makes a commitment to protect the rights of refugees. The most essential part of this commitment is never to return a refugee to a country where he or she has reason to fear persecution.

Article 33 of the Refugee Convention is titled 'Prohibition of expulsion or return ('refoulement')' and says:

• 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
• 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.36

As a signatory to the Refugee Convention, Australia is obliged to provide protection for those people to whom it has obligations under the Convention, regardless of whether they entered Australia lawfully or unlawfully. Australian law requires that people who have not succeeded in their claim for refugee protection and who have no lawful basis to remain in Australia, be removed from Australia as soon as practicable. Their removal takes place following the conclusion of any litigation and when arrangements have been made to return them to their country of residence.

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7. What is the 'Pacific Solution'?

The 'Pacific Solution' or 'Pacific Strategy' aims to prevent unauthorised boat arrivals from reaching the Australian mainland and making refugee applications. The Australian Government developed this strategy in September 2001 in response to the 'Tampa' issue. It involved removing or 'excising' certain parts of Australian Territory - Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands - from Australia's 'migration zone'. This means people landing in these places cannot make refugee applications without permission from the Minister for Immigration. Instead, they are transferred to a 'declared country', such as the Pacific island nation of Nauru or Manus Province in Papua New Guinea, while their applications are assessed by the United Nations High Commissioner for Refugees (UNHCR) and the Australian Government. 37

Click here for a full list of changes to the Migration Act following the Tampa crisis

What was the 'Tampa' issue?

In August 2001, the Norwegian cargo ship MV Tampa rescued 433 mostly Afghan and Iraqi asylum seekers from a sinking boat in the Indian Ocean. The Australian Government refused permission for the Tampa to enter Australian waters and allow its passengers to get off on nearby Christmas Island, an Australian Territory. Despite the Government's warning, the Tampa did enter Australian waters and the ship was then boarded by Australian Special Air Services (SAS) troops. The passengers were transferred from the Tampa to an Australian Navy ship and taken to Nauru. The government of Nauru agreed to house the asylum seekers in return for economic aid from Australia.

The Government's refusal to allow asylum seekers on the Tampa to land on Australian territory was later challenged in Australian courts which upheld the right of the government to act as it did.

Click here to read the Full Federal Court decision http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/2001/1329.html?query=title+%28+%22vadarli%22+%29 Click here to read a summary of the Court hearings

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8. What is immigration detention?

According to Australia's migration law, 'unlawful non-citizens' must be detained until they are granted a visa (pursuant to a refugee claim or some other category) or are removed from the country. An 'unlawful non-citizen' is a person without a valid visa in Australia (not including Australian citizens). People become 'unlawful non-citizens' if:

• they enter Australia without a valid visa (ie. if they are 'unauthorised arrivals');
• they enter Australia with a valid visa but then stay past the visa's expiry date (ie. they 'overstay' their visa); or
• they break the conditions of their visa (for example, by working when the visa does not allow it). 38

The law requiring immigration detention for 'unlawful non-citizens' has been in place since 1992.

How many people are detained?

• In 2003-04, a total of 7,492 people were detained at some time during the year, compared to 7,934 people in 2002-03 and 10,897 people in 2001-02.
• In 2003-04, the maximum number of people detained on any one day was 1,263, compared to 1,409 in 2002-03 and 3,667 in 2001-02. 39

Immigration detention facilities

Immigration detention facilities in Australia consist of the following types: 40

• Immigration Detention Centres (IDCs): mainly used to detain people in breach of their visa conditions or people refused entry at Australia's international airports or over-stayers. The following IDCs currently operate around Australia:
  • Villawood IDC (established in New South Wales in 1976)
  • Maribyrnong IDC (established in Victoria in 1966)
  • Perth IDC (established in 1981)
• Immigration Detention Facilities (IDFs): used to detain a range of unlawful non-citizens. e.g. Baxter Immigration Detention Facility (open since July 2002)
• Immigration Reception and Processing Centres (IRPCs): primarily used for unauthorised boat arrivals. e.g. Christmas Island Immigration Reception and Processing Centre (open since September 2001)
• Residential Housing Projects (RHPs): enable women and children to live in family style accommodation while remaining in immigration detention. The Port Augusta Residential Housing Project is such a facility.

The following detention facilities are no longer used by the Australian Government:

• Port Hedland IRPC (closed in 2004)
• Port Hedland RHP (closed in 2004)
• Curtin IRPC (closed in 2002)
• Woomera IRPC (closed in 2003, but maintained as a contingency centre)
• Woomera RHP (closed in 2003)41

Table 8.1 Numbers* of Persons in Immigration Detention as at 10 August 2005.

* Approximately 75% of detainees arrived in Australia with a visa and have been detained as the result of compliance action by the Department. The majority of these detainees are not seeking asylum.

** Includes correctional facilities / watch houses/ hotels / apartments / foster care / community / hospitals / illegal foreign fishers in harbours awaiting departure, removal or court appearance.

Source: DIMIA, Immigration Detention Facilities http://www.immi.gov.au/detention/facilities.htm (accessed 23 August 2005)

Click here for the latest available figures. http://www.immi.gov.au/detention/facilities.htm

off-shore processing

People who arrive without authorisation at an excised off-shore place (such as the Cocos Islands or Christmas Island) will be detained on Christmas Island or moved to off-shore processing centres in Nauru or Manus Province in Papua New Guinea.

off-shore processing facilities were established in Nauru and Papua New Guinea in September and October 2001 respectively. These facilities were set up in cooperation with the Governments of Nauru and Papua New Guinea. Asylum seekers are not detained under Australia law, or the laws of Nauru or Papua New Guinea, but are instead granted Special Purpose Visas by those countries while they await processing and resettlement or return. 42

As at August 2004, a total of 1,547 people had been processed in centres in Nauru or Manus since their inception in 2001. Of the 1,547 people, some 839 have been resettled. In 2003-04, 122 were resettled variously in Australia, New Zealand, Sweden and Canada. Of the 122 people resettled in 2003-04, 90 were assessed to be refugees, while 32 non-refugees were resettled in New Zealand and Canada under humanitarian or other programs.43

All asylum seekers in Nauru and Manus have had their refugee claims assessed by either the UNHCR or the Australian Government. In August 2004, no one remained at the Manus centre whilst 104 people remained in Nauru under existing arrangements which expire on 30 June 2005.

As at August 2004, 7% of the asylum seekers remained in Nauru, 31% had returned home, and 62 % had been resettled in Australia and other countries. Some 905 refugees have been resettled: 531 in Australia, 335 in New Zealand, 19 in Sweden, 10 in Canada, six in Denmark and four in Norway. A further 55 non-refugees have also been resettled: 44 in New Zealand, 6 in Canada, 4 in Australia and 1 in Sweden. 44

What does off-shore detention cost?

In 2003-04, the Federal Budget provided for a provisional allocation of $106.9 million for the operation of off-shore processing centres. The total operational cost of operating the off-shore processing centres in Nauru and Manus from September 2001 to June 2004 was $187.8 million.45

Click here for information on the costs of onshore detention

Where are they detained?

Figure 8.1: Location of Australia's immigration detention centres

*Off-shore processing facilities in the Republic of Nauru and on Manus Island were set up with the cooperation of the Governments of Nauru and Papua New Guinea and are administered by the International Organization for Migration (IOM).

Note: Curtin was closed in 2002. Woomera was closed in 2003. Port Hedland was closed in 2004.

Where do people in detention come from?

The main nationalities of detainees since 2000 are: Afghan, Iraqi, Iranian, Chinese, Indonesian, Sri Lankan, Palestinian, Korean, Vietnamese and Bangladeshi. 46

Children in detention

Between 1 July 1999 and 30 June 2003, 2,184 children arrived in Australia without a valid visa and sought asylum all these children were held in immigration detention while their refugee status was being determined. More than 92% of these children have been recognised by Australia to be refugees and were granted temporary protection visas.47

The highest number of children in detention at any one time between 1 January 1999 and 1 January 2004 was 842 (on 1 September 2001). 48

Table 8.2: Children in Immigration Detention

Source: HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, 2004 (page 8).

National Inquiry into Children in Immigration Detention

From November 2001 to April 2004, the Human Rights and Equal Opportunity Commission conducted a National Inquiry into Children in Immigration Detention to investigate whether Australia's detention laws complied with international law. The Inquiry examined the treatment of child asylum seekers held in immigration detention centres between 1999 and 2002 and looked at alternatives to placing children in immigration detention centres. The report of the Inquiry into Children in Immigration Detention, 'A last resort?' was tabled in Federal Parliament in May 2004.

The Inquiry found:

• Australia's immigration detention policy is inconsistent with the Convention on the Rights of the Child. In particular, Australia's mandatory detention system fails to ensure a child's right to be detained as a measure of last resort and for the shortest appropriate period of time.
• Children in immigration detention for long periods of time are at high risk of serious mental harm.
• Long-term detention undermines a child's ability to enjoy a variety of other important rights.

Click here for an extract from the UN Convention on the Rights of the Child.

The Inquiry recommended:

• Releasing children in immigration detention (with their parents) by 10 June 2004.
• Changing Australia's immigration detention laws so they are consistent with the Convention on the Rights of the Child. The key principles that should guide development of any new migration laws and policies are:
  • Children can only be detained as a measure of last resort and for the shortest appropriate period of time.
  • The best interests of the child must be a primary consideration.
  • Unaccompanied children must receive special assistance so they can enjoy the same rights as all other children.
  • Children have the right to family unity.
  • Children must be treated with humanity and respect for their inherent dignity.
  • Children enjoy, as much as possible, the right to development and recovery from past torture and trauma.
  • Asylum seeking children must receive appropriate assistance to enjoy their rights including the right to be protected under the Convention relating to the Status of Refugees.
• Appointing an independent guardian so unaccompanied children can receive appropriate support.
• Setting out in law minimum standards of treatment for children in immigration detention.

Click here for a summary guide to the National Inquiry into Children in Immigration Detention http://www.humanrights.gov.au/human_rights/children_detention_report/summaryguide/index.html Click here for the report of the National Inquiry into Children in Immigration Detention http://www.humanrights.gov.au/human_rights/children_detention_report/report/index.htm Click here for the Australian Government's press release in response to the report on the National Inquiry into Children in Immigration Detentionhttp://www.minister.immi.gov.au/media_releases/media04/v04068.htm

Recent developments in children and families in detention

Since the tabling of A last resort?, the Migration Act was amended by the Migration Amendment (Detention Arrangements) Act 2005 (Cth). Those amendments:

• affirm the principle that children shall only be detained as a last resort. That principle is not directly enforceable;
• confer upon the Minister a new power (which is non-compellable and non-reviewable) to grant a visa to a person in immigration detention where the Minister is satisfied that it is in the public interest to do so;
• confer upon the Minister the power to specify alternative arrangements for a person in immigration detention, which will enable the Minister to allow families with children to reside in the community in a specified place. Again this power is non-compellable and non-reviewable; and
• confer upon the Commonwealth Ombudsman the function of reviewing the cases of people who have been in immigration detention for more than two years. While the ombudsman is further empowered to make recommendations regarding such people (including as to the appropriateness of their ongoing detention) such recommendations will not be binding upon the Minister.

From 29 July 2005, there have been no children held in Immigration Detention Centres.49 The 42 children who were being held prior to that date have been transferred into alternative, community detention, using the discretionary powers granted by the above amendment. The continued application of community detention to child asylum seekers and their families remains at the discretion of the Minister.

The Palmer Report

In July 2005, an Inquiry was held to determine how an Australian resident, Cornelia Rau, came to be held for 10 months in Immigration Detention, and an Australian citizen, Vivian Alvarez, came to be deported to the Philippines. The report highlighted problems concerning the provision of mental health services to detainees, as well as identifying serious cultural and structural problems within the department of immigration.

Click here to access the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report Click here for further reading on this topic

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9. How does Australia help refugees settle?

Providing early settlement and social support to refugees and humanitarian entrants who arrive in Australia is crucial to helping them rebuild their lives in Australia. 50

Click here for information about the kinds of assistance available to refugees and humanitarian entrants.

Not all refugees have access to the same support and benefits to help them settle in Australia.

• Off-shore humanitarian program entrants and on-shore permanent protection visa holders can access special support services designed specifically for refugees as well as many general services and benefits provided to migrants and Australian residents. 51
• Refugees granted temporary protection visas cannot access the same range of services provided to other refugees and humanitarian entrants.

Click here for details of benefits and services for Permanent and Temporary Protection Visa holders.

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Further Reading

General

Mary Crock & Ben Saul, Future Seekers: Refugees and the Law in Australia, Federation Press, Sydney, 2002.

Mary Crock, Immigration and Refugee Law in Australia, Federation Press, Sydney, 1998.

Ngo Tung Bao & Desmond Cahill, 'The Vietnamese' in James Jupp (ed), The Australian People: Encyclopedia of the Nation, Its People and their Origins, Centre for Immigration and Multicultural Studies, Canberra, 2001.

Derek Brown, 'Refugees at sea: what the Australian papers say', The Guardian, 29 August 2001.

DIMIA, Protecting the Border: Immigration Compliance, 2000 edition, Canberra, 2001.

DIMIA, Refugee and Humanitarian Issues - Australia's Response, Canberra, 2005.

Human Rights Commissioner, Those who've come across the seas: Detention of unauthorised arrivals, HREOC, Sydney, 1998.

Marr, D & Wilkinson, M. Dark Victory, Allen & Unwin, Sydney, 2003.

Lesleyanne Hawthorne (ed), Refugee: the Vietnamese experience, Oxford University Press, Melbourne, 1982.

William Maley et al. (eds), Refugees and the Myth of the Borderless World, Research School of Pacific and Asian Studies, Australian National University, Canberra, 2002.

Peter Mares, Borderline: Australia's treatment of refugees and asylum seekers, UNSW Press, Sydney, 2001.

Don McMaster, Asylum Seekers: Australia's Response to Refugees, Melbourne University Press, Melbourne, 2001.

Oxfam Community Aid Abroad, Adrift in the Pacific: the Implications of Australia's Pacific Refugee Solution, Oxfam, Melbourne, 2002.

Sharon Pickering, 'The Hard Press of Asylum', Forced Migration Review, Issue 8, 8 August 2000, pp 32-33.

Tess Rod & Ron Brunton, Who Gets to Stay? Refugees, Asylum Seekers and 'Unauthorised' Arrivals in Australia, Institute of Public Affairs, Melbourne, 2002.

Senate Standing Committee on Foreign Affairs and Defence, Australia and the refugee problem: the plight and circumstance of Vietnamese and other refugees, Commonwealth Parliament, Canberra, 1976.

UNHCR, Refugees by Numbers, 2004 Edition, September 2004

Barry York, Australia and Refugees, 1901-2002: Annotated Chronology Based on Official Sources: Summary, Department of the Parliamentary Library, June 2003.

Question 1: Who is a refugee?

Australian Law Reform Commission, 'Violence and Women's Refugee Status', Chapter 11 in Equality before the Law: Justice for Women, Commonwealth of Australia, 1994.

European Council on Refugees and Exiles, Position on the Interpretation of Article 1 of the Refugee Convention, September 2000.

Bela Hovey, Working Paper No. 37, New Issues in Refugee Research, 'Statistically correct asylum data: prospects and limitations', Evaluation and Policy Analysis Unit, UNHCR, Geneva, April 2001.

UN High Commission for Refugees, 'Who is a Refugee?'.

Question 2: What is Australia's policy on refugees?

DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program.

DIMIA, Fact Sheet 61 - Seeking Asylum within Australia.

DIMIA, Fact Sheet 64 - Temporary Protection Visas.

DIMIA, Fact Sheet 65 - New Humanitarian Visa System.

DIMIA, Refugee and Humanitarian Issues - Australia's Response, Canberra, June 2005.

Question 3: How many refugees come to Australia?

DIMIA, Population Flows: Immigration Aspects 2003-04 Edition, Canberra, January 2005.

DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program.

Thuy Do, 'Statistics: Refugees and Australia's contribution', in William Maley et al (eds), Refugees and the Myth of the Borderless World, Research School of Pacific and Asian Studies, Australian National University, Canberra, February 2002.

UNHCR, Refugees, Asylum-Seekers and others of concern to UNHCR, 1 January 2004.

Question 4: Who is an asylum seeker?

DIMIA, Protecting the Border: Immigration Compliance, 2000 edition, Chapter 5.

Refugee Council of Australia, Top 10 Nationalities of Boat Arrivals.http://www.refugeecouncil.org.au/html/facts_and_stats/stats.html#stat9

Question 5: What happens to asylum seekers in Australia?

DIMIA, Background Information on Illegal Migration, Unauthorised Arrivals.

DIMIA, Fact Sheet 62 - Assistance for Asylum Seekers in Australia.

Question 6: Why are asylum seekers allowed to stay in Australia?

DIMIA, Refugee and Humanitarian Issues - Australia's Response, Canberra, June 2005.

European Council on Refugee and Exiles, Position on the interpretation of Article 1 of the Refugee Convention, September 2000.

Executive Committee of the United Nations High Commissioner for Refugees, Notes on International Protection, UN Doc, A/AC.96/930.

Global governance and the evolution of the international refugee regime, Laura Barnett, Working Paper No. 54, New Issues in Refugee Research, Evaluation and Policy Analysis Unit, UNHCR, Geneva, 15 February 2002.

Question 7: What is the 'Pacific Solution'?

DIMIA, Fact Sheet 65 - The New Humanitarian Visa System.

DIMIA, Fact Sheet 70 - Border Control.

DIMIA, Fact Sheet 71 - New Measures to Strengthen Border Control.

DIMIA, Fact Sheet 76 - Off-shore Processing Arrangements.

DIMIA, Fact Sheet 81 - Australia's Excised Off-shore Places.

Greg Fry, 'The Pacific solution?', in William Maley et al (eds), Refugees and the Myth of the Borderless World, Research School of Pacific and Asian Studies, Australian National University, Canberra 2002.

Human Rights Watch, 'Not for Export':Why the International Community Should Reject Australia's Refugee Policies, September 2002.

Peter Mares, 'A Pacific Solution: Reflections on the Tampa affair and September 11', Eureka Street, November 2001.

Don McMaster, Asylum Seekers: Australia's Response to Refugees, Melbourne University Press, Melbourne, 2001.

Question 8: What is immigration detention?

DIMIA, Fact Sheet 76 - Off-shore Processing Arrangements.

DIMIA, Fact Sheet 82 - Immigration Detention.

Human Rights Commissioner, Those who've come across the seas: detention of unauthorised arrivals, HREOC, Sydney, 1998.

Joint Standing Committee on Foreign Affairs, Defence and Trade, A Report on Visits to Immigration Detention Centres, Commonwealth Parliament, Canberra, June 2001.

M McCallin, 'The Psychological Wellbeing of Refugee Children: Research', Practice and Policy Issues, International Catholic Child Bureau, Geneva, 1993, pp 169-184.

Derek Silove & Zachary Steel, 'The Mental Health and Wellbeing of On-shore Asylum Seekers in Australia', Psychiatry Research and Teaching Unit, University of NSW, 1998.

A Sultan, A & K O'Sullivan, 'Psychological Disturbances in asylum seekers held in long term detention: a participant-observer account', Medical Journal of Australia, Vol. 175, 2001, pp 593-596.

UNHCR, 'Guidelines on Detention of Asylum Seekers' (1985) in Detention of Asylum Seekers in Europe, UNHCR Regional Bureau for Europe, 2nd edition, Geneva, 1995.

Question 9: How does Australia help refugees settle in Australia?

Amnesty International Australia, Factsheet 05 - Temporary Protection Visas.

Liz Curran, Forgotten People - Asylum in Australia, Catholic Commission for Justice, Development and Peace, Occasional Paper No. 10, February 2001.

DIMIA, Fact Sheet 66 - Integrated Humanitarian Settlement Strategy.

DIMIA, Refugee and Humanitarian Issues - Australia's Response, Canberra, June 2005.

DIMIA Submission to the HREOC National Inquiry into Children in Immigration Detention, Chapter 4, 'Children in the Community', 2002.

Temporary Protection Visa Holders in Queensland, Renae Mann, Multicultural Affairs Queensland, February 2001.

Greg Marston, Temporary protection, permanent uncertainty, RMIT, Melbourne, June 2003.

Refugee Council of Australia, Position Paper on Temporary Protection Visas, September 2000.

Top

Notes

1. See Refugees Convention: Article 1 A (2) Note: People not covered by the Refugee Convention include those for whom there are serious reasons for considering that they have committed war crimes, crimes against humanity (such as genocide or torture) or a serious non-political crime (Refugees Convention: Article 1F).




2. UNHCR, Refugees by Numbers, 2004 Edition, September 2004, page 6. Note: The figures for the global refugee population does not include some four million Palestinian refugees who fall under the responsibility of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), see UNHCR, 2003 Global Refugee Trends: Overview of Refugee Populations, New Arrivals, Durable Solutions, Asylum-Seekers and Other Persons of Concern to UNHCR, June 2004, page 2.




3. UNHCR, Refugees by Numbers, 2003 Edition, September 2003, page 8.




4. UNHCR, Refugees by Numbers, 2004 Edition, September 2004, pages 2 and 8.




5. UNHCR, Statistical Yearbook 2001, Chapter One, Populations, New Arrivals and Durable Solutions, October 2002, pages 24-25.
   
    
6. UNHCR, Refugees by Numbers, 2004 Edition, September 2004, page 9




7. UNHCR, Refugees by Numbers, 2004 Edition, September 2004, page 2.




8. DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program (updated by DIMIA 1 February 2005) (accessed 15 February 2005).




9. DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program (updated by DIMIA 1 February 2005) (accessed 15 February 2005).




10. DIMIA, Fact Sheet 65-New Humanitarian Visa System (revised by DIMIA 19 July 2002, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




11. DIMIA, Fact Sheet 61 - Seeking Asylum within Australia (revised by DIMIA 12 November 2003, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




12. DIMIA, Fact Sheet 61 - Seeking Asylum within Australia (revised by DIMIA 12 November 2003, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




13. From October 1999 to February 2003, 8,616, TPV's were granted, see: Question on Notice, 'Immigration: Asylum Seekers' (Question No. 1448), Hansard, House of Representatives, 14 May 2003, page 14537. In 2003-04, 185 TPV's were granted, see: DIMIA, Population Flows Immigration Aspects 2003-04, January 2005, Figure 2-21, "Humanitarian Programs Outcomes 2003-04", page 32. See also: DIMIA, Fact Sheet 65- New Humanitarian Visa System(revised by DIMIA 19 July 2002, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




14. DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program (updated by DIMIA 1 February 2005).




15. DIMIA, Population Flows Immigration Aspects 2003-04, January 2005, Figure 2-21, "Humanitarian Programs Outcomes 2003-04", page 32.




16. For source regions (percentage figures) see: DIMIA 2003-04 Annual Report, Refugee and Humanitarian Entry and Stay, page 68. See also: DIMIA, Population Flows: Immigration Aspects 2003-04, January 2005, page 33. For major source countries in those regions, see DIMIA, Fact Sheet 60 - Australia's Refugee and Humanitarian Program (Table: Visa Grants by Top Ten Countries of Birth) (updated by DIMIA 1 February 2005) (accessed 15 February 2005).




17. UNHCR, Refugees by Numbers, 2004 Edition, September 2004, page 10.




18. UNHCR, Asylum Levels and Trends: Europe and non-European Industrialized Countries, 2003: A comparative overview of asylum applications submitted in 44 European and 6 non-European countries in 2003 and before, 24 February 2004, Table 1, page 7.




19. UNHCR: 2004 Asylum Statistics for Industrialised Countries, 1 March 2005. See also: UNHCR: Asylum claims fall to lowest level since 1988, 1 March 2005.




20. DIMIA, Fact Sheet 61 - Seeking Asylum within Australia (revised by DIMIA 12 November 2003, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




21. DIMIA, Fact Sheet 61- Seeking Asylum within Australia (revised by DIMIA 12 November 2003, updated by DIMIA 11 March 2004) (accessed 15 February 2005). Note: Financial assistance for basic food, accommodation and healthcare needs is provided through the Asylum Seeker Assistance scheme, administered by DIMIA through contractual arrangements with the Australian Red Cross.




22. DIMIA, Fact Sheet 74 -Unauthorised Arrivals by Air and Sea (revised by DIMIA 6 October 2004, updated by DIMIA 8 October 2004) Now unavailable.
    
     
23. DIMIA, Fact Sheet 61 - Seeking Asylum Within Australia (revised by DIMIA 12 November 2003, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




24. DIMIA, Fact Sheet 74 -Unauthorised Arrivals by Air and Sea (revised by DIMIA 6 October 2004, updated by DIMIA 8 October 2004) Now unavailable.




25. DIMIA, Fact Sheet 74 -Unauthorised Arrivals by Air and Sea (revised by DIMIA 6 October 2004, updated by DIMIA 8 October 2004) Now unavailable.




26. DIMIA, Fact Sheet 74 -Unauthorised Arrivals by Air and Sea (revised by DIMIA 6 October 2004, updated by DIMIA 8 October 2004) Now unavailable.




27. Phillips J and Millbank A, Protecting Australia's Borders, Research Note No. 22, 2003-04, Parliamentary Library, Parliament of Australia. See also: Migration Amendment Regulations 2003 (No. 8).




28. See: Disallowance Alert 2003, Senate, Parliament of Australia. [Note: Any legislative instrument such as a Regulation, ceases to have effect if either House of Parliament passes a resolution disallowing that legislative instrument].




29. MIGRATION AMENDMENT REGULATIONS 2005 (NO. 6) (SLI NO 171 OF 2005)




30. DIMIA, Seeking Asylum within Australia (Updated by DIMIA 27 August 2004) (accessed 16 February 2005). See also: DIMIA, Fact Sheet 74 -Unauthorised Arrivals by Air and Sea (revised by DIMIA 6 October 2004, updated by DIMIA 8 October 2004) Now unavailable.
    
     
31. DIMIA, Fact Sheet 74 -Unauthorised Arrivals by Air and Sea (revised by DIMIA 6 October 2004, updated by DIMIA 8 October 2004) Now unavailable.




32. See Al Kateb v Godwin (2004) 78 ALJR 1099




33. DIMIA, Fact Sheet 61 - Seeking Asylum within Australia (revised by DIMIA 12 November 2003, updated by DIMIA 11 March 2004) (accessed 15 February 2005).




34. DIMIA, Fact Sheet 9 - Litigation involving Migration Decisions (revised by DIMIA 25 January 2005, updated by DIMIA 1 February 2005) (accessed 14 March 2005).




35. DIMIA, Fact Sheet 75 - Processing Unlawful Boat Arrivals (produced by DIMIA 7 May 2004, updated by DIMIA 14 May 2004) (accessed 16 February 2005).




36. See Convention Relating to the Status of Refugees.




37. 'Excised off-shore places' also include Australian sea installations and Australian resource installations. See DIMIA, Fact Sheet 71 - New Measures to Strengthen Border Control (updated by DIMIA March 2004) (accessed 16 February 2005). See also: DIMIA, Fact Sheet 81 - Australia's Excised off-shore Places (revised by DIMIA 30 September 2004, updated by DIMIA 30 October 2004) (accessed 15 February 2005).




38. DIMIA, Fact Sheet 82- Immigration Detention (revised by DIMIA 14 October 2004, updated by DIMIA 14 January 2005) (accessed 15 February 2005). Note: while the immigration detention policy and legislation applies equally to people who overstay their visas and those whose visas have been cancelled, most of the people detained have been unauthorised arrivals, mostly asylum seekers. Also see section 189 of Australia's Migration Act 1958.




39. DIMIA, 2003-04 Annual Report, Detention, page 92.




40. DIMIA, Immigration Detention Facilities (updated by DIMIA 11 February 2005).




41. DIMIA, Detention Facilities No Longer Operational (updated by DIMIA 4 February 2005) (accessed 17 February 2005).




42. For details on the off-shore processing centres on Nauru and Manu Island, see DIMIA, Fact Sheet 76 - off-shore Processing Arrangements (revised by DIMIA 29 September 2004, updated by DIMIA 7 October 2004) (accessed 16 February 2005).




43. DIMIA, 2003-04 Annual Report, Detention, page 98.




44. DIMIA, Fact Sheet 76 - off-shore Processing Arrangements (revised by DIMIA 29 September 2004, updated by DIMIA 7 October 2004) (accessed 16 February 2005).




45. DIMIA, 2003-04 Annual Report, Detention, page 112.




46. DIMIA, Fact Sheet - 82 Immigration Detention, (revised by DIMIA 14 October 2004, updated by DIMIA 14 January 2005) (accessed 15 February 2005).




47. HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, 2004, page15.




48. HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, 2004, page 9.




49. DIMIA Detention statistics are available at: http://www.immi.gov.au/detention/facilities.htm




50. United Nations High Commissioner for Refugees, Chapter 2.3, 'Promoting Integration through Early Settlement and Social Support' in Refugee Resettlement: An International Handbook to Guide Reception and Integration, 30 September 2002.




51. Unlike new migrants who must generally wait two years before they can access certain benefits, off-shore Humanitarian Program entrants and on-shore Permanent Protection Visa holders can receive social security payments through Centrelink, health benefits through Medicare and a range of other government assistance programs.