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FOCUS March 2014 Volume Volume 75

Asylum Seekers, Refugees and Human Rights: The Case of Australia

Australian Human Rights Commission*

For over twenty years successive Australian governments have adopted various policies aimed at deterring asylum seekers from arriving by boat. During this period mandatory immigration detention and offshore processing have been key policies in attempts to reduce the number of boat arrivals.
Australia’s mandatory immigration detention system was introduced in 1992. Amendments to the Migration Act 1958 (Cth) (Migration Act) in 1992 required the detention of certain ‘designated persons’ and prevented any judicial review of detention.1 These amendments did, however, impose a two hundred seventy- three day time limit on immigration detention.2
In 1994 the mandatory detention regime was expanded to apply to all non-citizens in Australia without a valid visa, and the two hundred seventy- three day time limit was removed.3 At this time a system of bridging visas was introduced to allow persons to be released from immigration detention in certain circumstances.4
The next major change in Australia’s policies regarding asylum seekers occurred in 2001, prompted by what became known as the ‘Tampa crisis’.5 In September 2001 the Australian Government introduced a suite of legislative measures known as the ‘Pacific Solution’.6 Under this policy, asylum seekers who arrived by boat were transferred to offshore processing centers on Nauru and Manus Island in Papua New Guinea (PNG) where they were detained while their asylum claims were processed.
In 2008 the Pacific Solution was dismantled by the Australian Government and the remaining asylum seekers detained on Nauru were resettled in Australia.
In September 2012 the Australian Government reinstated third country processing for asylum seekers who arrive unauthorized by boat after 13 August 2012. This followed the release of the report of the Expert Panel on Asylum Seekers, which recommended the re- commencement of regional processing as part of a package of measures to deter asylum seekers from making boat journeys to Australia.7 After designating Nauru and PNG as ‘regional processing countries’,8 in September 2012 the Australian Government began transferring asylum seekers to Nauru, and in November 2012 to Manus Island.
On 19 July 2013 the Australian Government announced a Regional Settlement Arrangement (RSA) with the Government of PNG.9 Under the RSA asylum seekers arriving unauthorized by boat after 19 July 2013 will be transferred to PNG for processing and resettlement (if found to be refugees). If found not to be refugees they will be returned to their country of origin or a country where they have a right of residence.
On 3 August 2013 the Australian Government also signed a new Memorandum of Understanding with Nauru which provides that the Nauruan Government will enable individuals whom it has determined are in need of international protection to settle in Nauru, ‘subject to agreement between Participants on arrangements and numbers’.10

Global and Domestic Context

In 2012, 17,202 people arrived by boat to Australia.11 From January 2013 to 30 June 2013 a further 13,108 people arrived.12
Despite the recent increase in boat arrivals, Australia still receives very small numbers of asylum seekers, by international standards.
As at 31 December 2012, there were 45.2 million people in the world who had been forcibly displaced from their homes as a result of persecution, conflict, generalized violence and human rights violations – the highest number in eighteen years.13 During 2012 an average of 23,000 people per day were forced to abandon their homes due to conflict and persecution.14
The United Nations High Commissioner for Refugees (UNHCR) has reported that at the end of 2012 globally there were 15.4 million refugees.15 The escalating crisis in Syria was one of the key drivers of the increase in the refugee population in 2012. Last year the conflict in Syria forced 647,000 people to seek refuge in Egypt, Iraq, Jordan, Lebanon, Turkey and other countries in the region.16
In 2012 Australia received 15,963 applications for asylum,17 which constituted 2.2 percent of the total number of applications for asylum submitted worldwide.18 The number of persons seeking asylum in 2012 equated to less than 7 percent of Australia’s immigration intake,19 and 4 percent of the overall growth in Australia’s population in that year.20
 In 2012 the majority of the people who arrived by boat in Australia and lodged asylum applications were from Afghanistan.21 The top five source countries for asylum seekers who arrived by boat and made asylum applications are Afghanistan, Sri Lanka, Iran, Pakistan and Iraq.

Mandatory Immigration Detention

It is mandatory under the Migration Act for every non- citizen who is in Australia without a valid visa to be detained, regardless of his or her individual circumstances.22  Once detained, unlawful non- citizens must remain in detention until they are either granted a visa or removed from Australia.23
The majority of unlawful non- citizens are detained in closed immigration detention facilities. Of the 9,375 people in immigration detention on 5 September 2013, 6,579 (or 70 percent) of these people were held in secure immigration detention facilities.24 The remaining 2,796 were in community detention.25
Of the people being held in closed immigration detention facilities in Australia as at 31 August 2013:

  • • 6,136 people (75 percent) had been detained for three months or less
  • • 1,881 people (23 percent) had been detained between three and twelve months
  • • 189 people (2 percent) had been detained for longer than one year.26

As at 13 September 2013 there were twenty-five secure immigration detention facilities operating in Australia, including four on Christmas Island.27 A map produced by the Department showing the location of all these facilities is at Appendix 3 of the full version of the report.28
There are four different categories used to classify immigration detention facilities:

  • • Immigration Detention Centre (IDC): high security detention facility
  • • Immigration Residential Housing (IRH): secure detention in a domestic environment
  • • Immigration Transit Accommodation (ITA): closed detention facility which has less intrusive security measures than an IDC
  • • Alternative Place of Detention (APOD): place designated by the Department for detaining unlawful non-citizens who are assessed as posing minimal risk to the Australian community.

Human Rights Issues

The Commission has raised concerns over many years that the system of mandatory detention leads to breaches of Australia’s international human rights obligations. For instance, Australia has binding obligations under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR)29 and article 37(b) of the Convention on the Rights of the Child (CRC)30 to ensure that no one is subjected to arbitrary detention.
The Commission’s concerns about Australia’s system of mandatory detention are shared internationally.31 The United Nations (UN) Human Rights Committee has repeatedly found Australia to be in breachof its international obligations under article 9(1) of the ICCPR.32
According to the UN Human Rights Committee, the prohibition on arbitrary detention includes detention which, although lawful under domestic law, is unjust or disproportionate.33 Therefore, in order for the detention of a person not to be arbitrary, it must be a reasonable and necessary measure in all the circumstances.34
Under Australia’s system of mandatory detention, the detention of an unlawful non-citizen is not based on an individual assessment that the particular person needs to be detained. Persons who are detained cannot seek judicial review of whether or not their detention is necessary. Under the Migration Act there is no time limit on how long a person can be detained.
These aspects of Australia’s immigration detention regime can result in people being subjected to prolonged and indefinite detention, in breach of Australia’s international obligations.
The Commission has repeatedly raised concerns about the significant human impacts of mandatory immigration detention, including the deterioration of the mental health of detainees.
The Commission has long recommended that, instead of requiring the mandatory immigration detention of broad groups of people, a person should only be detained if it is shown to be necessary in their individual case. Further, time limits for detention and access to judicial oversight of detention should be introduced to ensure that if a person is detained, they are not detained for any longer than is necessary.
A further concern is that the conditions for and treatment of people in immigration detention must comply with Australia’s international human rights obligations. Key among these is the obligation under article 10 of the ICCPR to ensure that all persons who are detained are treated with humanity and respect for their inherent dignity. Guidelines for the implementation of this obligation and other human rights standards are contained in the Commission’s publication Human rights standards for immigration detention.35
The Commission has conducted several visits to immigration detention centers to monitor conditions of detention.36 The Commission has raised concerns about the conditions in many of Australia’s immigration detention facilities and has found that many are not appropriate places in which to hold people, especially for prolonged periods of time.
Australia’s mandatory detention system has also attracted criticism due to its cost. In 2011–2012 immigration detention cost the Australian taxpayers 1.235 billion Australian dollars.37 It has also been questioned whether mandatory detention effectively deters people from seeking asylum.38

Concluding Note

President of the Commission Professor Gillian Triggs states:39

Australia has resettled around 800,000 refugees since World War II, building one of the world’s most successful multicultural societies. Today, Australia continues to have a generous resettlement programme and, along with the United States and Canada, has ranked consistently among the world’s top three resettlement countries.
 While we have seen a significant increase in asylum seekers seeking protection in Australia in recent times, Australia’s share of asylum applications remains a very small fraction of the global total (about 2.2%). I urge the Australian Government to ensure that all asylum seekers and refugees are treated humanely regardless of their mode of arrival, and to continue to uphold our proud history of providing protection to some of the world’s most persecuted and vulnerable people.

For further information, please contact: The Australian Human Rights Commission, Level 3, 175 Pitt Street, Sydney NSW 2000 Australia, GPO Box 5218, Sydney NSW 2001 Australia; ph (61-2) 9284 9600; e-mail: communications@humanrights.gov.au; www.humanrights.gov.au.

 * This article is a slightly edited excerpt from the report entitled Asylum Seekers, Refugees and Human Rights: Snapshot Report2013, issued by the Australian Human Rights Commission. The full report can be downloaded at www.humanrights.gov.au/publications/asylum-seekers-refugees-and-human-rights-snapshot-report.

Endnotes

1. Migration Act 1958 (Cth), s 183.
2. See Migration Amendment Act 1992 (Cth), s 3, which inserted (then) s 54Q(2)(b) into the Migration Act 1958 (Cth).
3. See Migration Reform Act 1992 (Cth), s 13. Note that s 2 of the Migration Laws Amendment Act 1993 (Cth) deferred the commencement of certain amendments contained in the Migration Reform Act 1992 (Cth) until 1 September 1994.
4. See Migration Reform Act 1992 (Cth), s 10.
5 For a description of the Tampa crisis see, for example, M. Crock, B. Saul and A. Dastyari, Future Seekers II: Refugees and Irregular Migration in Australia (2006), pages 113-117.
6 See Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) and
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).
7. A. Houston, P. Aristotle and M. L’Estrange, Report of the Expert Panel on Asylum Seekers, Australian Government (2012).
At http://expertpanelonasylumseekers.dpmc.gov.au/report (viewed 1 October 2013).
8. Under the Migration Act certain documents must be tabled with the designations of 'regional processing countries’. Copies of the designation documents tabled by the Minister are available on the Commission’s website at www.humanrights.gov.au/transfer-asylum-seekers-third-countries.
9 Regional Resettlement Arrangement between Australia and Papua New Guinea (19 July 2013). At www.refworld.org/docid/51f61a504.html (viewed 1 October 2013). See also Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues (6 August 2013) . At www.dfat.gov.au/geo/png/joint-mou-20130806.html (viewed 1 October 2013).
10. Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues (3 August 2013) . At www.dfat.gov.au/issues/people-smuggling-mou.html (viewed 1 October 2013).
11. See J. Phillips and H. Spinks, Boat arrivals in Australia since 1976, Parliamentary Library Research Paper (updated 23 July 2013), Appendix A. At
www. aph. gov. au/about _par l i ament /parliamentary_departments/parliamentary_library/pubs/bn/2012-2013/boatarrivals (viewed 1 October 2013).
12. See Phillips and Spinks, above.
13. United Nations High Commissioner for Refugees (UNHCR), UNHCR Global trends 2012, Displacement: The New 21st Century Challenge (19 June 2013), page 3. At http://unhcr.org/globaltrendsjune2013/ (viewed 1 October 2013).
14. UNHCR, above, page 5.
15. UNHCR, above, page 3.
16. UNHCR, above, page 14.
17. Department of Immigration and Citizenship, Asylum statistics – Australia, Quarterly tables – March Quarter 2013 ( 2013) , page 1. At www.immi.gov.au/media/publications/statistics/asylum/ (viewed 1 October 2013).
18. UNHCR, UNHCR Global trends 2012, note 14, page 3.
19. Australian Bureau of Statistics, 3101.0 – Australian Demographic Statistics, Dec 2012. At www.abs.gov.au/AUSSTATS/abs@.nsf/allprimarymainfeatures/7B8C452A1CDFAB9FCA257BF100136758?opendocument (viewed 1 October 2013).
20. Australian Bureau of Statistics, above.
21. Department of Immigration and Citizenship, Asylum statistics – Australia, note 17, page 10.
22. Migration Act 1958 (Cth), s 189.
23. Migration Act 1958 (Cth), s 196.
24. Department of Immigration and Citizenship, Response to the Australian Human Rights Commission’s (AHRC) 13 August 2013 request for information concerning detention and asylum seekers, provided by email to the Commission on 16 September 2013 (DIAC response), page 5.
25. For a discussion on community detention, see section 2.5 of the full report ( available at www.humanrights.gov.au/publications/asylum-seekers-refugees-and-human-rights-snapshot-report/2-onshore-detention-and).
26. Department of Immigration and Citizenship response, note 24, page 5.
27. See Appendix 3 of the report ( available at www.humanrights.gov.au/publications/asylum-seekers-refugees-and-human-rights-snapshot-report/appendix-3-australia-s).
28. The map is also available on the Department’s website at www.immi.gov.au/managing-australias-borders/detention/facilities/ (viewed 1 October 2013).
29. International Covenant on Civil and Political Rights, 1966, ( I CCPR) . At www.austlii.edu.au/au/other/dfat/treaties/1980/23.html (viewed 1 October 2013).
30. Convention on the Rights of the Child, 1989, (CRC). At www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 1 October 2013).
31. See, for example, Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/WG.6/10/L. 8 (2011), paras 28, 42, 49, 78, 86.123, 86.127, 86.131 and 86.132. At www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 1 October 2013); Committee on the Rights of the Child, Concluding observations: Australia, UN Doc CRC/C/AUS/CO/4 (2012), paras 80-81. At www2.ohchr.org/english/bodies/crc/docs/co/CRC_C_AUS_CO_4.pdf (viewed 1 October 2013).
32. See the Human Rights Committee’s comments in A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.4. At www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 1 October 2013); C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002) para 8.2. At www.refworld.org/docid/3f588ef00.html (viewed 1 October 2013); Shams et al v Australia, Communication Nos . 1255,1256,1259,1260,1266,1268,1270,1288/2004, UN Doc CCPR/ C/ 90/ D/ 1255,1256,1259,1260,1266,1268,1270&1288/2004 (2007), para 7.2. At www.ag.gov.au/RightsAndProtections/HumanRights/DisabilityStandards/Documents/ShamsetalvAustralia-Viewsof1192007.pdf (viewed 1 October 2013).
33. Human Rights Committee, A v Australia, above, para 9.2; Human Rights Committee, Van Alphen v Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990), para 5.8. At www1.umn.edu/humanrts/undocs/session39/305-1988.html (viewed 1 October 2013).
34. Human Rights Committee, Van Alphen v Netherlands, above, para 5.8.
35. Available at www.humanrights.gov.au/publications/human-rights-standards-immigration-detention (viewed 1 October 2013).
36. The Commission’s immigration detention reports are available on the Commission’s website at www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 1 October 2013).
37/ Australian National Audit Office, Individual Management Services Provided to People in Immigration Detention, Report No 21 (2013), page 12. At www. anao. gov. au/Publications/Audit-Reports/2012-2013/Individual-Management-Services-Provided-to-People-in- Immigration-Detention (viewed 1 October 2013).
38. See A. Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, UNHCR Legal and Protection Policy Research Series (2011), page 1. At www.refworld.org/docid/4dc935fd2.html (viewed 1 October 2013).
39. Gillian Triggs, Executive Summary to the report, available at
www.humanrights.gov.au/publications/asylum-seekers-refugees-and-human-rights-snapshot-report.


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