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Introduction

Ibrahim Ishreti fled persecution in search of safety in Australia. His hope for freedom turned into more than four years of detention, bridging visas, bureaucracy and despair. He is among thousands of men, women and children who have been held for anywhere from six days to six years under Australia's immigration detention regime.

In this report, "The impact of indefinite detention: the case to change Australia's mandatory detention regime", Amnesty International focuses on Australia's mandatory detention policy, and in particular how it has allowed for prolonged and indefinite detention. [2] The policy is considered to be inconsistent with Australia's international human rights obligations. In particular it violates the right to liberty and security of persons due to its lack of a case by case examination of the necessity and appropriateness of detention, consideration of a reasonable alternative to detention or access to independent review or an effective remedy. The report provides an overview of the international human rights and refugee law obligations that apply to Australia's detention of asylum-seekers and refugees and makes clear that Australia's policy does not accord with international law and standards.

The report provides recommendations the implementation of which would put an end to the indefinite detention of rejected asylum-seekers [3] and would bring Australia's treatment of refugees and asylum-seekers into line with its international obligations.

Summary

Human rights concerns

Under Australia's mandatory detention legislation [4], asylum-seekers who arrive without adequate documentation are held in immigration detention pending the outcome of their asylum claim. The only way their detention can come to an end under Australian law is for the person to be granted a visa enabling them to remain lawfully in Australia, or to be removed or deported to another country.

Recent decisions of the Australian High Court have found that, under the Migration Act, those whose detention cannot be ended in any of these ways must continue to be detained. As a consequence, a rejected asylum-seeker may be subject to indefinite detention pending removal. This may result in a lifetime of detention without charge, trial or access to an effective remedy.

Mandatory detention

By seeking asylum in Australia asylum-seekers are exercising an internationally recognised right to seek asylum. [5] In doing so, they hope to escape the persecution that forced them to leave their home countries and to find a country where their fundamental rights and human dignity will be respected.

However, asylum seekers arriving without adequate documentation are subject to the provisions of the Migration Act, which imposes mandatory detention until a decision is made in their case. They may be detained for a prolonged period, until they are recognised as refugees and released, or following a negative decision, removed or deported.

As at 29 May 2005, Amnesty International estimates that at least 150 people have been detained for more than three years in immigration detention by the Australian Government. This figure includes those detained in Australia's immigration facilities on Nauru, of which there are 54 including 48 adults and six children. The total number of persons detained by Australia rises to at least 200 when those detained for more than 18 months but less than three years are included. Australia's longest serving immigration detainee, a rejected Kashmiri asylum-seeker, Peter Qasim, has been in detention since September 1998. In the case of children, Australia's Human Rights and Equal Opportunity Commission reports that the average detention period for a child in immigration detention is one year, eight months and 11 days. [6]

No judicial review of detention

The lack of independent review of the lawfulness of detention and the absence of any maximum statutory time limit for detention means that detention can not only be prolonged, it can also be indefinite. Amnesty International considers it unacceptable that exercising the right to seek asylum in Australia from human rights abuses in other countries should be met with a system that further violates human rights, including administrative detention of a prolonged or indefinite period of time.

Breach of international law

Australia's policy of mandatory non-reviewable detention places it in breach of several international human rights instruments. Article 9 of the 1966 International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party, prohibits arbitrary detention and provides that a detained person must be able to take proceedings before a court that can determine the lawfulness of detention and order release where detention is unlawful. The rights to liberty and freedom from arbitrary detention are also protected in Articles 3 (right to liberty) and 9 (prohibition on arbitrary detention) of the Universal Declaration of Human Rights.

Amnesty International is of the view that detention under Australia's mandatory detention policy is arbitrary and thus in breach of the ICCPR. As confirmed by recent High Court decisions, in some circumstances immigration detention in Australia can be of indefinite duration and with no reasonably foreseeable prospect for release. This report outlines the basis on which Amnesty International considers that Australia is also in breach of key provisions of other international instruments, including the 1951 Convention relating to the Status of Refugees and the 1989 Convention on the Rights of the Child.

Impact of detention on mental health

The psychological impact of indefinite detention is irrefutable. Amnesty International continues to receive allegations of ill-treatment of detainees held in immigration detention centres. If substantiated, such treatment would breach international principles of humane treatment of persons in detention and the prohibition of cruel, inhuman or degrading treatment. This would be consistent with findings by other bodies of cruel, inhuman or degrading treatment or punishment regarding similar allegations. [7] Reports of hunger strikes, suicide attempts, riots and protests within immigration detention centres are symptomatic of the complete disempowerment and desperation of human beings who are arbitrarily detained with no access to an effective remedy.

Amnesty International's challenge to the Australian Government

This report complements Amnesty International's 1998 report, A Continuing Shame [8], which condemned Australia's mandatory detention policy and called upon the Australian Government to bring its policy into line with its international human rights obligations. The impact of indefinite detention: the case to change Australia's mandatory detention regime reiterates the challenge to the Australian Government to review its detention policy, in particular its prolonged or indefinite character, now that the High Court has found indefinite detention to be permissible under the Migration Act.

Amnesty International calls on the Australian Parliament, as a matter of urgency, to make comprehensive amendments to the policy and legislation to ensure that no person is detained in violation of their human rights.

A model for change

Amnesty International is witness to the detrimental impact that prolonged or indefinite detention has had on the lives of individuals held in Australia's immigration detention centres. Each person so detained is an individual whose right to dignity has been systemically eroded by a scheme that deprives them of their right to liberty, does not provide for a case by case examination of the necessity or proportionality of detention and offers no effective opportunity to challenge the decision to detain them.

Amnesty International acknowledges recent developments in Australia that include an increased use of bridging visas [9] (including Bridging Visa E), residential housing projects and alternative places of detention. These developments appear to indicate the Australian Government's growing recognition that its mandatory detention regime is unnecessarily harsh. However, these developments fail to address adequately the question of arbitrary detention, much less the particular problem of prolonged or indefinite detention. Further, Amnesty International is not satisfied that recent moves by the Australian Government to introduce a visa providing for release, pending removal of an individual from Australia, adequately addresses this serious human rights issue.

By implementing the model for change proposed in this report, the government would meet its international legal obligations, protect the human rights of asylum-seekers including those whose applications for asylum have been dismissed, and go some way towards introducing a humane immigration policy. The model proposed in the recommendations of this report [10] does not constitute a threat to Australia's sovereignty or to the integrity of its borders.

Overview of Amnesty International recommendations

The Australian Government should:

a formal independent review process to assess on a case-by-case basis the necessity and proportionality of detention of all asylum-seekers and rejected asylum-seekers who are currently detained in Australia, including Christmas Island, and on Nauru.

that in future, asylum-seekers who arrive in Australia without adequate documentation are detained only when their detention is consistent with international human rights standards. Such legislation should be based on a general presumption against detention.

in national law a statutory maximum duration for detention which should be reasonable in its length. Once this period has expired the individual concerned should automatically be released.

that detained asylum-seekers have regular and automatic access to courts empowered to review the necessity of detention and to order release if continued detention is found to be unreasonable or disproportionate to the objectives to be achieved.

a new class of bridging visa for any future arrivals that allows for asylum-seekers to remain in the community with rights and entitlements as outlined above.

a complementary protection model to provide for future asylum-seekers who do not meet the full and inclusive interpretation of the definition of refugee under the Refugee Convention but nonetheless are in need of international protection.

that any actions taken by the government to negotiate the forcible return of a rejected asylum-seeker are in full compliance with Australia's international human rights obligations. The complete set of recommendations can be found in Chapter 4 of this report.

1. Indefinite Detention: The Problem

Amnesty International considers that Australia's mandatory detention regime frequently results in arbitrary detention. The focus of this report is on a particular element of the detention regime, whereby asylum-seekers can be detained for prolonged periods of time, and persons whose asylum claims have been dismissed can be detained indefinitely. As some members of Australia's High Court have recognised, this means that certain rejected asylum-seekers could be deprived of their liberty for the rest of their lives.

Amnesty International's 1998 report, A Continuing Shame, examined how Australia's mandatory detention policy contravened refugees' and asylum-seekers' human rights and found that the policy was contrary to Australia's international human rights obligations. Since that time, various United Nations (UN) bodies have revisited the detention of refugees and asylum-seekers in Australia in a number of contexts [16] and have found that Australia's detention legislation is inconsistent with its international human rights commitments. Domestic reports and findings have consistently recommended amendments to Australia's mandatory detention regime and detention facilities. [17]

The outlook is bleak with the High Court's finding that Australia's mandatory detention policy, including its indefinite nature, is lawful under Australian law.

The national context

What is Australia's policy regarding the treatment of asylum-seekers?

Since 1992, Australia has had a policy of mandatory detention for asylum-seekers who arrive in Australia without valid visas. That is, everyone who arrives in Australia without a valid visa must be detained irrespective of any rights that they might have under international law.

The Migration Act sets out Australia's mandatory detention policy. Since 1992, all 'unlawful non-citizens' in Australia must be detained [18] until they are either:

• Removed from Australia;

• Deported;

• Granted a visa [19].

Non-nationals who are in Australia without holding any valid visa are referred to as 'unlawful non-citizens'. [20] Courts cannot release an 'unlawful non-citizen' from detention other than in one of the three situations above

By contrast, people who enter Australia on a valid visa and then claim protection as refugees are not detained. The only difference between these two groups of people is the way in which they arrived and what documentation they had when they arrived, yet they are treated in markedly different ways. 'Unlawful non-citizens' claiming asylum are detained solely because they did not have proper papers when they arrived in Australia, rather than because they are not refugees or are a threat to national security or the public interest. They are detained before any consideration is given as to whether they are refugees, or any investigation is conducted regarding their character or the threat, if any, they might pose to the security of the country.

There is no mechanism to decide whether detention is reasonable, proportionate or to consider an individual's particular circumstances. Australian law prohibits the release of detained asylum-seekers while their status is being determined. It is only on rare occasions, due to reasons such as serious health concerns or age, that the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) grants an asylum-seeker a visa to enable them to be released from detention.

It can take more than five years for a final determination to be made on an asylum-seeker's claim. Meanwhile the asylum-seeker remains in detention until he or she is recognised as a refugee under the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and granted a visa, or is removed or deported. This delay can be due to a number of factors including the nature of the claim itself and the difficulty in obtaining relevant information. However, in some cases it is also due to the shortcomings of Australia's asylum determination system, which lacks adequate safeguards to prevent errors in decision making at first instance or in relation to subsequent applications, and provides asylum applicants with inadequate advice and representation beyond appeal to the Refugee Review Tribunal (RRT).

Since 2001, legislation has been introduced ostensibly aimed at improving the efficiency of the system. However this legislation restricts access to judicial review by asylum-seekers; limits review of decisions by the introduction of restrictive time limits to appeal; increases costs for bringing applications and decreases availability of fee waiver provisions; reduces the levels of appeal that are available to asylum-seekers; and penalises lawyers and migration agents who act on behalf of asylum-seekers by awarding costs against them in instances where the case is considered unmeritorious.

Amnesty International remains concerned that the limitations to Australia's asylum determination system continue to place people at risk of prolonged detention or of refoulement. [21]

Under a policy introduced by the Australian Government in October 1999 a person recognised as a refugee who entered Australia without documentation is only granted the limited right to stay in Australia for three years on a Temporary Protection Visa (TPV). [22] A TPV holder has limited access to social services such as education and resettlement assistance and does not have the right to depart and return to Australia, or to reunite with their family. Often this visa is granted to people who have spent prolonged periods in immigration detention. Under the policy, if that person spent seven days en route to Australia in a country where they could have sought and obtained effective protection and then applied for further protection from Australia after September 2001, they may never be eligible for permanent protection. The result is that persons who are ultimately determined to be a refugee after years of prolonged detention, may never be eligible for permanent protection from Australia. [23]

Asylum-seekers are currently held in five immigration detention centres around Australia (Villawood, Maribyrnong, Perth, Baxter and Christmas Island) and in Australia's detention facilities on Nauru. Other detainees are held in the Baxter residential housing project (RHP) [24], with another RHP expected to be operational in Villawood. [25]

The rate of recognition of detained asylum-seekers determined to be refugees is startling. Nine out of 10 unauthorised arrivals that sought asylum in the period from July 2002 to June 2003 were determined to be refugees. The Human Rights and Equal Opportunity Commission (HREOC) recently found in its report on detention of children [26] that of 2,184 children who were detained during the period of its inquiry (1999-2003) more than 92 % were ultimately recognised as refugees.

It is a matter of concern that many asylum-seekers who have ultimately been recognised as refugees have been subject to prolonged detention, in some instances as a result of error made at various stages of the determination process. In April 2005, 20 asylum-seekers, most of whom had been detained for four years, were finally deemed to be in need of protection and released from detention.

Amnesty International maintains that there must be a timely, fair and accurate asylum determination procedure, in which the applicant is not detained in immigration detention pending a final and correct determination of their status. In 2003-04 the RRT took as long as 22 weeks to process the applications lodged by detainees. In this same time frame only 65% of detainee applications were processed within the RRT's own recommended time frame of 70 calendar days. [27]

Recently, the Australian Government has made greater use of the Bridging Visa E, a temporary visa allowing a 'non-citizen' to remain in Australia while their asylum claim is being determined. Amnesty International has expressed concern with respect to this category of visa as it is only available to a limited number of people, because a person must meet highly restrictive criteria in order to be eligible and because of the limited rights and entitlement associated with the visa class. [28]

In May 2005 the government announced the regulations establishing the Removal Pending Bridging Visa (Bridging R (Class WR) visa). The visa allows a 'non-citizen' in immigration detention to remain in the Australian community where their removal from Australia is not reasonably practicable. [29] To be eligible a person must have had their application for asylum finally determined and have no current proceedings in a court or tribunal. While this visa may be considered to be a positive development, Amnesty International continues to have concerns regarding its scope and associated limitations, such as the potential loss of the right to appeal a decision on their claim for asylum and thereby the decision to deport them, even if the circumstances in a person's country of origin changes. [30]

In 2005, the government has received widespread condemnation for the wrongful detention of Australian permanent resident Cornelia Rau and the wrongful deportation of Australian citizen Vivian Alvarez Solon. In response, the government established the Palmer Inquiry to investigate, examine and report on matters relating to the cases. The inquiry itself has also come under criticism for its lack of transparency and its limited powers to compel witnesses and evidence. [31]

Meanwhile as part of Australia's 'Pacific Solution', 45 detainees remain on the Pacific island of Nauru. Following the 'Tampa incident' in August 2001, where more than 1,000 asylum-seekers were held in Australia's immigration facilities on Nauru, the numbers of detainees on the island have significantly reduced, with the claims of those remaining having been rejected by the Australian Government. Without a change in policy, there is little prospect for those remaining on Nauru to be released. [32]

The international legal framework and Australia's compliance

The nature of Australia's obligations under international law

Using irregular means to enter a country when seeking international protection may be some asylum-seekers' only option. To use arguments of sovereignty to justify denial of a person's right to seek asylum is contrary to the object and intention of the international human rights and refugee law framework.

The ratification of an international treaty is a voluntary act by which a state accepts to fulfil in good faith its obligations under that treaty. Article 26 of the Vienna Convention on the Law of Treaties provides that 'every treaty in force is binding upon the parties to it and must be performed by them in good faith'. Under Article 27, a state 'may not invoke the provisions of its internal law as a justification for its failure to perform a treaty'.

As the UN High Commissioner for Human Rights has observed:

Law, as any other institution, is subject to abuse. Apartheid South Africa was governed by laws that regulated oppression and led to horrific denial of dignity. The law that must guide us is that law which is capable of delivering justice and providing remedies for grievances. It is a dynamic and reliable institution that is capable of preserving the rights of all while adapting itself to the needs of a changing world. This is the role of human rights law. [40]

Thus, while Australia has the sovereign power to protect its borders, it also has the obligation to comply with those treaties to which it is a party and with customary international law, including those provisions relating to the protection of human rights of refugees, asylum-seekers migrants and others in its territory or subject to its effective control.

Is detention in Australia arbitrary?

The UN Human Rights Committee recognised that the prohibition against arbitrary detention refers not only to detention that is against the law, but also to detention that is not just, appropriate, predictable and necessary in all the circumstances of the case. [41] This was also confirmed in A v. Australia. [42]

The UN Working Group on Arbitrary Detention (UNWGAD) has outlined a number of guarantees relevant to determining whether a situation of administrative detention is to be considered of an arbitrary nature. [43] Such guarantees include ensuring that any asylum-seekers or immigrants who are placed in custody must be brought promptly before a judicial or other authority. [44] They also require that a maximum period of detention should be set by law and that the custody may 'in no case be unlimited or of excessive length'. [45] The asylum-seekers must be able to apply for a remedy to a judicial authority, 'which shall decide promptly on the lawfulness of the measure and, where appropriate, order the release of the person concerned'. [46] As such detention of an asylum-seeker may be considered arbitrary when it is not subject to judicial review or other appropriate review mechanism, or is for an excessive or unlimited period of time.

Numerous bodies have found that Australia's mandatory detention regime is arbitrary and in breach of international human rights law. These include the UN Human Rights Committee, [47] the UN Working Group on Arbitrary Detention, [48] the UN High Commissioner for Human Rights Special Envoy Justice Bhagwati, [49] and the Australian Human Rights and Equal Opportunity Commission. [50]

It is therefore relevant to look at what constitutes arbitrary detention, the principles safeguarding against arbitrary detention and some of the key findings with respect to Australia.

International Covenant on Civil and Political Rights

Article 9 of the International Covenant on Civil and Political Rights (ICCPR) [51] recognises the right to liberty and security of a person and prohibits arbitrary detention. Article 9(4) guarantees the right to challenge the lawfulness of detention:

... anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Principle 11(1) of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UN Body of Principles) guarantees the right to be brought promptly before a judge or other judicial officer. [52] The purposes of the review before a judge or other judicial authority include: to assess whether sufficient legal reason exists for the arrest; to assess whether detention is necessary; to safeguard the wellbeing of the detainee; and to prevent violations of the detainee's rights. This procedure may provide the detained person with their first opportunity to challenge the lawfulness of their detention.

The provisions of Article 9(4) of the ICCPR and of Principle 11(1) of the UN Body of Principles apply to all forms of detention, including immigration detention and to all human beings without discrimination, including refugees, asylum-seekers and rejected asylum-seekers.

The requirements that an individual be brought promptly before a judge or other judicial officer and be able to seek judicial review of his or her continuing detention are fundamental guarantees of a fair procedure and provide protection against arbitrary detention and other human rights violations. The UN Human Rights Committee, charged with the task of providing interpretative guidance for and supervising implementation of the ICCPR, observed that effective judicial review of detention should be made mandatory [53] and that detention must be protected by due process of law. [54]

General Comment No.8 of the UN Human Rights Committee also provides guidance on how to safeguard rights protected under Articles 9 of the ICCPR. [55]

Australia's mandatory detention policy has been found on a number of occasions, both systemically and in individual cases, to violate the ICCPR, in particular Article 9(1) and (4). For example, in A v. Australia the UN Human Rights Committee upheld A's submission that there was a breach of Article 9(4) of the ICCPR as there was no effective judicial review of the grounds for detention. Importantly, the Committee held that the test of 'lawfulness' under Article 9(4) means lawfulness under the ICCPR, not under domestic law. It found that Article 9(4) requires judicial review of the lawfulness of detention that is not merely formal, with the power to order release if the detention is incompatible with the requirements of Article 9(1), or in other provisions of the ICCPR.

United Nations Working Group on Arbitrary Detention

In October 2002, following a visit to Australia, the UN Working Group on Arbitrary Detention released its report. [56] The report raised several concerns about Australia's detention policies including the mandatory detention of unauthorised arrivals in Australia. It criticised the mandatory, automatic and indiscriminate character of detention under these policies, its potentially indefinite duration and the absence of judicial review. The report also raised concerns regarding the psychological impact of detention on asylum-seekers, the denial of family unity, the detention of children and the amendments to the Migration Act that restrict judicial review.

The Working Group made four recommendations and concluded that Australia should bring its policy in line with Articles 2, 9 and 10(1) of the ICCPR, to which it is a state party.

1951 Convention relating to the Status of Refugees

The 1951 Convention relating to the Status of Refugees [57] (the Refugee Convention) protects people who are outside their country of origin and who face a genuine risk of serious harm because of who they are or what they believe. [58] Refugees lawfully in the territory of a state party enjoy full rights to freedom of movement (Article 26). Article 31(2) limits the way in which restrictions on their freedom of movement may be imposed on refugees [59] in the territory of the country of refuge.

The power of the state to impose a restriction on movement under Article 31(2) must be related to a recognised object or purpose, and there must be a reasonable relationship of proportionality between the end and the means. Restrictions on movement must not be imposed unlawfully or arbitrarily. [60]

Amnesty International believes that Australia's mandatory detention regime is in violation of Article 31(2) of the Refugee Convention. This is because the necessity of detention in Australia is not determined on an individual case by case basis and is disproportionate to the objectives to be achieved given the range of viable alternatives that would achieve the same ends and the fact that detention is the most severe form restrictions on freedom of movement can take. Amnesty International considers that the particular problem of indefinite detention is indisputably contrary to the requirements of proportionality and necessity inherent in Article 31(2).

Australia's detention policy also compromises the ability of refugees to seek and enjoy asylum and is in breach of Article 31(1) of the Refugee Convention, which prohibits the imposition of penalties on refugees on account of their illegal entry or presence in the territory of a state party. [61]

It is also of note that any actions, including arbitrary or prolonged detention, that would compel an asylum-seeker to abandon his or her claim and return to his or her country of origin or a place where he or she would be at risk of serious human rights violations, would amount to constructive refoulement and place Australia in breach of its obligations under customary international law and the Refugee Convention.

UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers

The Office of the United Nations High Commissioner for Refugees (UNHCR), in its Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (UNHCR Revised Guidelines on Detention), describes the detention of asylum-seekers as 'inherently undesirable'. [62] The general principle underlying the UNHCR Revised Guidelines on Detention is that asylum-seekers should not be detained. [63] The UNHCR advises that the position of asylum-seekers is fundamentally different from that of other immigrants. [64] It is not always possible for asylum-seekers to comply with Australia's immigration requirements as many are likely to have left with the barest necessities and very frequently even without personal documents. [65]

The UNHCR has identified certain reasons detention might be exceptionally resorted to as long as it is clearly prescribed by the national law and is in conformity with general norms and principles of international human rights law. [66] However, Australia's mandatory detention regime cannot be seen as consistent with the UNHCR's exceptional grounds, which stress that there should be a 'presumption against detention' and emphasises that alternatives to detention should generally be applied first: [67]

[i]n assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportionate to the objectives to be achieved. If judged necessary it should only be imposed in a non discriminatory manner for a minimal period. [68]

The requirement that detention should be subjected to administrative or judicial review is considered an essential safeguard against arbitrary detention. [69]

In Australia, there is no capacity to challenge a detention order before such an independent body. In the worst case a rejected asylum-seeker can remain in detention without any prospect of release, should it not be possible to effect their removal from Australia.

UNHCR Executive Committee Conclusions on Detention

The issue of detention, and in particular the problem of prolonged detention, has been addressed in a substantial number of EXCOM Conclusions adopted by members of the UNHCR's Executive Committee at its annual EXCOM meeting. EXCOM Conclusion. No 44 [70] addresses the issue of detention most comprehensively, stating that detention should normally be avoided in view of the hardship that it involves, and that refugees and asylum-seekers should be protected from unjustified or unduly prolonged detention.

Amnesty International is not satisfied that the Australian Government has adequately examined alternatives to detention (restrictions on movement that do not constitute detention) as opposed to other forms of detention (less oppressive forms of detention than formal closed detention centres). Moreover, the Australian Government should be required to demonstrate that monitoring arrangements or movement restrictions less severe than detention would not suffice.

1954 Convention relating to the Status of Stateless Persons

Australia is a party to the 1954 Convention relating to the Status of Stateless Persons (CSSP). In its Preamble, the Convention affirms the principle that human beings, 'shall enjoy fundamental human rights and freedoms without discrimination' [71] and considers the efforts made by the United Nations to 'assure stateless persons the widest possible exercise of these fundamental rights and freedoms'.

The UNHCR Revised Guidelines on Detention clearly contemplate the risk of prolonged and indefinite detention, and identify the particular problem of indefinite detention of stateless persons. Guideline 9 provides that:

Stateless persons, those who are not considered to be nationals by any State under the operation of its law, are entitled to benefit from the same standards of treatment as those in detention generally. Being stateless and therefore not having a country to which automatic claim might be made for the issue of a travel document should not lead to indefinite detention. Statelessness cannot be a bar to release.

The UNHCR EXCOM Conclusions have dealt with the issue of statelessness on a number of occasions. EXCOM Conclusion No.78 deals with the prevention and reduction of statelessness and EXCOM Conclusion No.96 urges states to take steps to avoid cases of statelessness as well as to adopt measures leading to the grant of a legal status to stateless persons. [72] Rights accorded should include the right to freedom of movement (Article 26 CSSP), identity papers (Article 27 CSSP), travel documents (Article 28 CSSP), gainful employment (Articles 17-19 CSSP) and welfare (Articles 20-24 CSSP).

1989 Convention on the Rights of the Child

The Convention on the Rights of the Child [73] (CRC) contains specific provisions that entitle children seeking refugee status or who are considered to be refugees to appropriate protection and assistance (Article 22). The CRC also outlines the rights of all children to be detained only as a measure of last resort and for the shortest appropriate period of time (Article 37).

The UN Committee on the Rights of the Child has expressed concern about the detention of children in Australian detention centres, [74] and the findings of the UN Human Rights Committee in relation to complaints made against Australia may also be understood to apply to children. In particular, the Committee's findings in Bakhtiyari v. Australia related to the detention of children. [75]

There is growing evidence of a range of clear breaches by Australia of the Convention on the Rights of the Child. Most recently, HREOC's report A Last Resort? National Inquiry into Children in Immigration Detention found that Australia's immigration detention system is fundamentally inconsistent with the CRC. [76] This is because Australia's detention system fails to ensure that detention is a measure of last resort, for the shortest appropriate period of time and subject to effective independent review (Article 37(b) and Article 37(d)). In addition, the detention system fails to ensure that the best interests of the child are a primary consideration in all actions considering children (Article 3(1)) and that children are treated with humanity and respect for their inherent dignity (Article 37).

As noted by HREOC, the average length of detention of children was one year, eight months and 11 days. [77]

Australia's detention regime: an arbitrary practice

Australia's mandatory detention regime under the Migration Act is considered to be arbitrary on the basis that:

• There is no requirement that detention be justified in the individual case, taking into account considerations of reasonableness and proportionality.

• There is no requirement that detention be periodically subject to judicial review. The courts have no power to review the continued detention of an individual and to order his or her release. This has been confirmed by recent decisions of the Australian High Court.

• There is no viable mechanism, judicial or otherwise, to prevent detention being for a prolonged or indefinite period of time. The few exceptions that allow for the release from detention are, in practice, too narrow in scope and too rarely applied to be considered as viable alternatives to detention.

The practice of indefinite detention in Australia

The prolonged or indefinite nature of detention under Australia's mandatory detention regime is particularly concerning. Prolonged and indefinite detention are elements of arbitrary detention.

The most egregious examples of indefinite detention in the context of immigration detention in Australia are those where a person has been finally determined not to have a claim to protection under the Refugee Convention, is not awaiting a decision from the Minister for Immigration in exercise of her discretionary powers under s. 417 Migration Act, and has no prospect of removal or deportation in the reasonably foreseeable future. As this report outlines, many such individuals in Australia are stateless.

On the basis of a wide interpretation of the scope of the Australian Parliament's constitutional power to make laws with respect to aliens ('the aliens power') the High Court found in Al-Kateb's case that Australia's detention regime is constitutional and that rejected asylum-seekers can be kept in immigration detention indefinitely without legal recourse until such time when their removal can be effected. This was because the High Court considered that the power of the Migration Act, which requires mandatory detention of 'unlawful non-citizens', to be provided for under the Constitution, if it is for the purposes of effecting removal.

Further, the High Court did not consider the detention of 'unlawful non-citizens' to be of a punitive nature. Detention as a punitive measure can only be authorised by the judiciary under the Constitution. As the Migration Act is unambiguous in its intention to deny detainees the right to liberty, the court also found that the judiciary has no room to interpret the Migration Act in a way that honours Australia's international human rights obligations (such as those under the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the Refugee Convention).

In two decisions by the High Court regarding children, the court found that detention provisions in the Migration Act are constitutionally valid and are comprehensive in that they lawfully provide the detention of child asylum-seekers who arrive undocumented in Australia. [83] The courts similarly found that it was not open to them to take into account Australia's international legal obligations when interpreting lawfully enacted and unambiguous statutory law. Mandatory detention of children has thus been confirmed as lawful under Australian domestic law, even though it is in breach of international human rights law, including among other things, the principle of the best interest of the child.

The conclusions of these recent High Court decisions can be summarised as follows:

• Indefinite detention is permissible under the Constitution even where it is not possible to deport a person in the reasonablyforeseeable future, as long as the government retains the intention to deport. [84]

• International human rights obligations do not constrain the executive's power to detain 'aliens.' [85]

• The power to detain 'aliens' is not constrained by considerations of 'reasonableness' or 'proportionality' in order to avoid being characterised as 'punitive' because such considerations are not directly relevant to a system of mandatory detention. [86]

• No court, including the Family Court, has the power to order the release of a child from detention, even if it is in the child's best interests to do so. [87]

Under the Migration Act the executive arm of government has been empowered by the legislature to detain 'unlawful non-citizens' without individual consideration or independent and periodic review. This power, and the interpretation by a majority of the High Court of Australia that it is constitutional, has effectively rendered the judiciary powerless to remedy the injustice of indefinite detention of failed asylum-seekers. [88]

Despite the dismissal of the Al-Kateb appeal, the High Court decision provides little support for the government's position that the mandatory detention regime is in compliance with international human rights standards. The majority opinion does not attempt to make the argument that its findings are human rights compliant. On the contrary, it maintains that international law is not relevant to the constitutionality of the power to detain non-citizens, considering there to be no basis for implying a requirement to interpret the legislation in accordance with international human rights standards.

Justice McHugh noted that:

... [T]he justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. [89]

In response to the Al-Kateb decision the Minister for Immigration announced that she would review the detention of 24 rejected asylum-seekers directly affected by the High Court's finding. [90] While Amnesty International welcomed the Minister for Immigration's announcement, the organisation is concerned that their releases were decided on the basis of a non-compellable, non-enforceable and non-reviewable discretion of the Minister for Immigration. In the present instance, the consequence was that the Minister for Immigration:

• Granted bridging visas in nine cases. Seven of those given visas were already living in the community, having been released following earlier decisions in the cases of Al Masri and Al Khafaji.

• Did not grant bridging visas in 13 cases. Of those, 10 rejected asylum-seekers were already in detention and the Minister for Immigration decided the other three should be re-detained.

• Requested further information in two cases.

The Minister for Immigration said that visas were granted where the asylum-seeker was cooperative with removal arrangements, his identity was firmly established and removal was likely to be protracted. The Minister for Immigration's conclusions about questions of cooperation, establishment of identity and the likelihood that removal will be protracted are a matter of opinion of the executive arm of government and are beyond the reach of the courts.

In the event of release on a Bridging Visa E (BVE) [91], conditions of release of which Amnesty International considers to be unnecessarily restrictive are also beyond the reach of the courts. BVEs do not include the right to work, Medicare [92], or any other supportive benefits from the government, including the Pharmaceutical Benefits Scheme [93]. The result is a severe restriction on the abilities of asylum-seekers to provide for themselves and their families and to access adequate health care.

At the time of the Minister for Immigration's announcement, Amnesty International asked the government to legislate immediately to ensure that immigration detention in Australia complies with its international human rights obligations. Amnesty International called on the government not to return anyone who was affected by the High Court decision to immigration detention.

In March 2005, the Minister for Immigration announced the introduction of the Removal Pending Bridging Visa, which Amnesty International maintains is an inadequate response to the problem of indefinite detention. [94] As at June 2005, only 17 people had been invited by the Minister for Immigration to apply for the visa.

While the capacity to detain indefinitely remains under Australian law, Australia's policies continue to breach its international human rights obligations.

Is detention in Australia punitive?

The Australian Government has stated that its mandatory detention policy is intended to act as a deterrent against illegal migration [95] but denies that it is punitive. However, in order to achieve its stated aim of deterring future asylum-seekers, the government penalises those who have already arrived in Australia claiming asylum, to underline the consequences of irregular arrival.

Existing national case law does not provide a conclusive resolution of the question of whether the detention policy is punitive. The majority of the High Court in Al-Kateb found that detention is not punitive if the purpose is to achieve some legitimate non-punitive object. [96] In Re Woolley Justice McHugh said, that if the purpose of detention was to exclude a person from the community while their visa application was being processed, this must be done within a 'reasonable time' otherwise 'the proper inference will ordinarily be' that such detention is punitive.

In Amnesty International's view, it is not possible to separate the object of the legislation from its effect. Consequently, even though it might not be the government's intention, in its effect the mandatory detention policy is punitive. This becomes apparent when considering the effect of the policy on individual detainees' ability to enjoy human rights, the violations of which have led to Australia receiving international condemnation.

The principle that detention of refugees and asylum-seekers must be reasonable, proportional and necessary implies that detention for the purpose of deterrence is impermissible. [97] The UNHCR Revised Guidelines on Detention make clear that detention for the purpose of deterring would-be asylum-seekers is contrary to the norms of international law:

For detention of asylum-seekers to be lawful and not arbitrary, it must comply not only with the applicable national law but with Article 31 of the [Refugee] Convention and international law.

Guideline 3 provides that:

Detention of asylum-seekers ... as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. It should not be used as a punitive or disciplinary measure for illegal entry or presence in the country.

Amnesty International considers that Australia's detention policy compromises the ability of refugees to seek and enjoy asylum in Australia and is in breach of Article 31(1) of the Refugee Convention, which prohibits the imposition of penalties on refugees on account of their illegal entry or presence in the territory of a state party.

While having a direct and often shattering impact on the mental health of individual detainees, detention in Australia and on Nauru can also result in the obstruction of access to legal advice and information essential to asylum-seekers for pursuing their asylum claims effectively. Faced with the prospect of prolonged detention while their claims are assessed, with inadequate legal representation beyond an appeal to the RRT and limited access to other essential services and support mechanisms, some of those who have been detained for protracted periods have chosen to forgo their claims for asylum. Amnesty International has received reports of cases of asylum-seekers who have 'opted' for removal in the belief that they have no other option. [98] Amnesty International has received reports of those who have returned being subject to serious human rights abuses including kidnap, torture and even death.

Most recently Amnesty International was informed of the case of an Iraqi Temporary Protection Visa (TPV) holder who after waiting for a decision for approximately five years on his application for permanent residency, returned to Iraq in April 2004 when his application was denied. He was then kidnapped and killed by his captors who accused him of spying for Australian Intelligence. [99]

In the case of returnees to Iraq, DIMIA's report Westernisation (Situation of Western Returnees in Iraq) describes the situation which may face returnees deemed by local authorities as 'western'. The document details the fear of many asylum-seekers and refugees who feel that by merely returning to Iraq, "insurgents would assume that they have been sent back to spy on the insurgency...that by living in Australia, they are imputed as being westernised and that they will be treated suspiciously". [100] The document goes on to discuss the case of a permanent resident of Australia who returned to Iraq and was killed in the southern region, near the town of Samawa. [101] Also, two brothers who returned to Iraq from Australia in March 2004 were tracked down, threatened and interrogated by masked gunmen within three days of their arrival. The brothers were questioned in Najaf about their Australian connection. The two have since fled to Iran along with their families. [102]

A report [103] published in September 2004 drew upon interviews with 40 individuals who were refused protection in Australia and returned to their home countries. In conducting interviews overseas the report found that some returnees were removed from immigration detention in Australia and were immediately detained upon arrival in their home country, others faced physical and psychological abuses and many were forced to again flee their home countries. The report highlighted instances of the Australian government supplying returnees with inadequate documentation which led to administrative problems, bribery, torture and detention in the home countries. Following deportation of a person who has spent a prolonged period in immigration detention in Australia, the Australian Government has stated that "...Australia is not responsible for the future well-being of that person in their homeland". [104]

The impact of detention on mental health

Amnesty International is concerned that asylum-seekers in detention are experiencing significant levels of mental illnesses. There is mounting evidence that detainees, particularly those who are kept in prolonged or indefinite detention, are at high risk of experiencing chronic depression, incidents of self-harm or attempted suicide. Studies published in the Australian and New Zealand Journal of Public Health (December 2004) confirm earlier clinical consensus that high levels of psychopathology of detainees is attributable to the experience of detention. [105] Amnesty International notes the Australian Human Rights and Equal Opportunity Commissioner Dr Sev Ozdowski's position that detention itself is a primary cause of mental illness, and as such a sufferer cannot be treated whilst that person remains in detention.

This position has been confirmed by the Royal Australian and New Zealand College of Psychiatrists, in their response to an announcement by the Minister for Immigration [106] that extra medical staff would be provided within the Baxter detention centre. The College stated that the changes were "grossly inadequate in terms of the needs of this [detainee] population" [107] and that immigration detention "is not suitable for the treatment of the mentally ill, that there should be immediate release of those with mental illness and mental disorder into appropriate psychiatric facilities. Detention centres don't operate as hospitals and in no way can be said to be therapeutic". [108]

The Federal Court on 5 May 2005 effectively found that the Commonwealth had breached its duty to take reasonable care of two detainees (referred to as 'M' and 'S') held in mandatory detention at Baxter. [109] Amnesty International has questioned the appropriateness of placing mentally ill detainees who are experiencing psychological distress in isolation in the Baxter Management Support Unit.

Amnesty International continues to receive reports of abuse in detention centres from detainees and their advocates. These include allegations that people are being placed in isolation in the Management Support Unit (MSU) as 'punishment' for alleged inappropriate behaviour, as opposed to the stated purpose of monitoring those who are at risk of self harm or of harming others. There have been reports of detainees being held in the MSU or medium-security Red 1 compounds for weeks, even months, at a time for anything from spitting at an employee, refusing to obey an instruction, or inflicting self-harm. Amnesty International is particularly concerned about the mental health of children held in immigration detention and the high incidence of self-harm and attempted suicide. For example, between January 2001 and April 2002 there were 21 reported cases of children aged between 10 and 18 years attempting suicide, amongst a population of approximately 700 children then in detention. [110] The Human Rights and Equal Opportunity Commission's National Inquiry into Children in Immigration Detention received a wide range of evidence that indicated detention has a significantly detrimental impact on the mental health of some detained children. Evidence received by the HREOC inquiry showed that the longer children were held in detention, the more their mental health deteriorated. [111]

It is unacceptable that prolonged or indefinite detention that can affect the mental health of detainees should be beyond the reach and scrutiny of the courts. The negative human rights consequences of the current detention regime in Australia should not be allowed to continue with the existing inadequate levels of oversight.

Amnesty International Australia's campaign to End Indefinite Detention

The aim of Amnesty International Australia's (AIA) campaign to End Indefinite Detention is to ensure that unauthorised arrivals who seek asylum in Australia are not detained other than in strictly limited circumstances in accordance with international human rights and for a finite period of time. This requires an end to mandatory detention and the enactment of legislation to introduce a statutory maximum duration for detention and automatic and regular review of immigration detention decisions.

AIA is campaigning for the release of those who are arbitrarily detained due to prolonged or indefinite immigration detention in Australia and on Nauru. AIA is also calling on the government to adopt alternatives to detention that allow the reception of asylum-seekers into the community, including the introduction of a model of complementary protection for those who require Australia's protection but do not meet a full and inclusive definition of 'refugee'.

To bring an end to prolonged and indefinite detention, AIA believes it is incumbent on the government to ensure that the Migration Act is consistent with Australia's international human rights obligations. It must ensure that no individual is indefinitely and arbitrarily detained, and must take account of the particular vulnerability of children and stateless people.

For more information visit www.amnesty.org.au/refugees

2. Indefinite Detention: Particularly vulnerable asylum seekers

A consequence of Australia's mandatory detention policy is that even the most vulnerable asylum-seekers or persons whose claims have been dismissed can be detained for a prolonged or indefinite period, regardless of their individual circumstances.

It is beyond question that the deprivation of liberty is likely to have a detrimental impact on the psychological and physical well-being of an individual.

Most asylum-seekers detained in Australia have already witnessed or experienced grave human rights abuses such as torture, trauma or serious forms of discrimination. They are more vulnerable to human rights violations simply because of their status as asylum-seekers. This is because, among other things, they are without protection of their country of nationality, disconnected from their support structures and with limited knowledge or understanding of their rights in Australia

The following section considers the situation of groups of particularly vulnerable detainees. Whilst members of each group identified below are vulnerable for different reasons, the special needs of persons who fall within these categories should be considered in determining whether it is reasonable to detain them and if it is necessary and proportionate in the circumstances of the individual case. These groups include:

• Stateless persons;

• Children;

• Family groups;

• 'Pacific Solution' detainees.

Stateless persons

Stateless persons are those people who are 'not considered as a national by any state under the operation of its law'. [135] Amnesty International maintains that such persons have been rendered particularly vulnerable under Australia's mandatory detention regime.

Where a stateless person has been unable to establish a claim to refugee status, is unable to be returned to their country of former habitual residence, and has not been granted any form of complementary protection, prolonged or indefinite detention, possibly for life, is the consequence.

Examples of stateless person in the world include, among others, Palestinian refugees, some Roma people in Europe, Bedouins and their descendents resident in the United Arab Emirates who cannot prove that they were born in the country, and ethnic Nepali Bhutanese refugees who were stripped of their nationality and expelled from Bhutan.

The High Court decision in Al-Kateb v.Goodwin means that stateless asylum-seekers cannot be released from detention on the basis that their detention may be indefinite, even where there is no possibility of deporting that person in the reasonably foreseeable future. In effect, therefore, a stateless person who is subject to mandatory detention in Australia has no power to seek, much less obtain, a remedy for their arbitrary and indefinite detention. Review of indefinite detention of stateless asylum-seekers is therefore entirely a matter for the Minister for Immigration, on the basis of a non-enforceable, non-compellable, non-reviewable discretion. This has been confirmed by the introduction of the Removal Pending Bridging Visa (RPBV), which is only offered to those people whom the Minister for Immigration considers eligible. [136]

Children

In its Revised Guidelines on Detention, the UNHCR provides that minors who are asylum-seekers should not be detained. In the case of children accompanying their parents, all alternatives to detention should be considered. The Australian Government has not put any time limits on the immigration detention of children.

In the absence of judicial review of the necessity of detention, a child can be born and potentially spend a considerable part of his or her early years in detention. So far, the longest a child has been in detention is five years, five months and 20 days. The child and his mother were ultimately assessed as refugees.

As confirmed in HREOC's report A Last Resort, the immigration detention of children in Australia breaches Article 37 of the CRC, which provides that children should only be detained as a matter of last resort and for the shortest appropriate period of time.

The government should amend the Migration Act to ensure full compliance with the CRC. As at June 2005, this had not taken place.

Legal challenges to the detention of children

Several avenues to release children from immigration detention through Australia's courts have been pursued without success. The two most significant cases in the High Court of Australia are B and B [137] and Re Woolley [138] .

A last resort

In April 2004, HREOC released its report, A Last Resort? National Inquiry into Children in Immigration Detention, on the effects of detention on children. The HREOC report provides a comprehensive analysis of the situation of children in immigration detention in Australia during 1999-2003. The report was the first of its kind to find that the immigration detention of children was contrary to the CRC and was damning of Australian policy that had seen the detention of thousands of children for prolonged periods. In addition to the fact that there can be little justification for detaining children, the rate of recognition of child asylum-seekers should suggest that detaining them is unnecessary.

The HREOC report found that Australia's immigration detention laws as applied to unauthorised arrival children create a detention system that is fundamentally inconsistent with the CRC.

The HREOC report further found that:

• Children held in immigration detention for prolonged periods are at high risk of mental harm. DIMIA repeatedly failed to implement mental health professionals' recommendations to remove particularly ill children and their parents from the detention environment. This amounted to cruel, inhuman or degrading treatment, which breaches Article 37(a) of the CRC.

• Children were not protected from all forms of violence, in contravention of Article 19 (1) of the CRC.

• Children did not enjoy the right to the highest attainable standard of physical and mental health, in contravention of Article 24(1) of the CRC.

• Children with disabilities did not enjoy the right to a full and decent life, in contravention of Article 23(1) of the CRC