[1] Ibrahim Ishreti is now living on a bridging visa in the community while he awaits a decision of the Minister for Immigration to exercise her discretion to grant him a visa. He was interviewed by Amnesty International on 18 February 2005.

[2] A preliminary version of this report, entitled The impact of indefinite detention: the case to change Australia's mandatory detention regime - preliminary report, was released on 23 March 2005.

[3] The term 'asylum-seeker' denotes a person who has sought asylum but has not yet had a final determination of their claim. Rejected asylum-seekers are asylum-seekers whose claim has been rejected in a final determination. In the context of Australia, this refers to a person who is determined not to be a refugee having exhausted all avenues of review available to them through the courts or via the exercise of a Ministerial Discretion under section 417 or section 48b of the Migration Act 1958.

[4] Established under the Migration Act 1958 (Cth) (Migration Act).

[5] Article 14 of the Universal Declaration of Human Rights (UDHR) provides that 'Everyone has the right to seek and to enjoy in other countries asylum from persecution'. This right is also implicit in the 1951 Convention relating to the Status of Refugees (the Refugee Convention).

[6] As at 26 December 2003.

[7] See for example, C v. Australia, where the UN Human Rights Committee found that the Australian Government's failure to take the steps necessary to ameliorate the mental deterioration of a detainee constituted cruel, inhuman or degrading treatment or punishment in violation of Article 7 ICCPR (C v. Australia Communication no. 900/1999, UN Doc CCPR/C/76/D/900/1999, 13 November 2002). In addition, the Human Rights and Equal Opportunity Commission (HREOC) recently found in its report on detention of children, A Last Resort? National Inquiry into Children in Immigration Detention (April 2004), that the Commonwealth's failure to implement the repeated recommendations by mental health professionals that certain children be removed from detention with their parents amounted to cruel, inhuman and degrading treatment of those children. This amounted to a breach under article 37(a) of the Convention on the Rights of the Child.

[8] Australia, A Continuing Shame: The mandatory detention of asylum-seekers, June 1998. AI Index Aus/POL/REF.

[9] A bridging visa is granted to individuals applying for a visa in Australia whose current visa ceases before a decision is made on their application, or if the application has been rejected but the review of the refusal is pending. There are five classes of bridging visas, of which Bridging Visa E is one.

[10] Amnesty International's recommendations draw on a number of proposals that have been put to the Australian Government by organisations and coalitions, including the Refugee Council of Australia, Justice for Asylum Seekers, A Just Australia and Amnesty International.

[11] UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. Geneva: UNHCR, United Nations High Commissioner for Refugees (February 1999) (UNHCR Revised Guidelines on Detention), Guideline 3.

[12] Including the UNHCR Revised Guidelines on Detention.

[13] Full details of complementary protection can be found at page 59.

[14] 1951 Convention relating to the Status of Refugees. Australia became a party to the Refugee Convention on 22 January 1954, and to its 1967 Protocol on 13 December 1973.

[15] Ahmed Al-Kateb, a Kuwaiti Palestinian, is now living on a bridging visa in the community while he awaits a decision of the Minister for Immigration to exercise her discretion to grant him a visa. See page 23 for further details. Mr Al-Kateb was interviewed by Amnesty International on 18 February 2005.

[16] For example:

United Nations, Economic and Social Council, Commission on Human Rights fifty-ninth session Item 11(b) of the provisional agenda, Civil And Political Rights, Including The Question Of Torture And Detention: Report Of The Working Group On Arbitrary Detention, Addendum, Visit To Australia E/CN.4/2003/8/Add.2, 24 October 2002 (the UNWGAD Report);

Report of Justice PN Bhagwati, Regional Advisor for Asia and the Pacific of the United Nations High Commissioner for Human Rights, Mission to Australia 24 May to 2 June 2002, Human Rights and Immigration Detention in Australia;

UN Human Rights Committee in C v. Australia no. 900/1999, UN Doc CCPR/C/76/D/900/1999, 13 November 2002; and

Bakhtiyari v. Australia Communication no. 1069/2002, UN Doc CCPR/C/79/D/1069/2002, 6 November 2003.

[17] For example, HREOC A Last Resort? National Inquiry into Children in Immigration Detention, April 2004, and the Joint Standing Committee on Foreign Affairs, Defence and Trade 'A report on visits to immigration detention centres', June 2001.

[18] Migration Act, s.189

[19] Migration Act s. 196.

[20] Migration Act s. 14.

[21] The international legal principle of non-refoulement bars all states from returning individuals to a country where their lives or liberty are at risk or where they are likely to face torture. This is a binding principle of customary international law which is also laid out in international treaties including the Refugee Convention (Article 33) and the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3).

[22] Since 1999, Australia has granted more than 9,000 TPVs to persons who have been recognised as refugees.

[23] Amnesty International also expresses concern at the RRT set aside rate of DIMIA decisions regarding TPV holders applying for further protection. Between July 2003 and July 2004 the RRT set aside the DIMIA decision in 244 cases (of the 271 lodged) by people of one particular nationality, thereby determining that Australia owes those persons protection under the Refugee Convention and deeming DIMIA to be incorrect in 90% of these decisions made.

[24] Residential Housing Projects (RHPs) have been in use in Australia for immigration detention purposes since August 2001. While the RHP environment may be considered to be more appropriate for women and children, Amnesty International considers the RHP to be another form of detention as opposed to an alternative to detention.

[25] The Immigration Detention Advisory Group (IDAG) was formed in February 2001 to provide advice to the Minister on the appropriateness and adequacy of services, accommodation and facilities at immigration detention centres. While it has been successful in addressing certain areas of concern, questions have been raised by refugee advocates regarding IDAG's transparency and the capacity of the body to effect changes required within the centres. Community Reference Committees have been established in each detention facility around the country. Each Committee focuses on matters pertaining to the conditions and services provided at the particular centre. Amnesty International notes that at certain times CRCs have not been operating at centres including Baxter and Villawood.

[26] A Last Resort? National Inquiry into Children in Immigration Detention, April 2004.

[27] 2003-2004 RRT Annual Report www.rrt.gov.au/ann/reports.htm.

[28] See Chapter 3 for further details.

[29] Migration Amendment Regulations 2005 (no.2).

[30] See page 58 for further details.

[31] See page 33 for further details.

[32] See page 43 for further details.

[33] It is claimed he has written to 80 countries seeking acceptance.

[34] Mr Qasim claims that he did not understand that there was a strict time limit on applications for judicial review.

[35] See [2003] FCA 1569.

[36] DIMIA decision, page 7, paragraph 3.1.26.

[37] Border Protection Legislation Amendment Act 1999 (Cth), which amended the Migration Act by the insertion of s. 36(3): 'Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national'.

[38] Al Khafaji v. Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369.

[39] Section 48b of the Migration Act allows the Minister to allow a person who has been refused a protection visa to make a further application for a protection visa.

[40] UN High Commissioner for Human Rights, Louise Arbour, International Commission of Jurists, Biennial Conference, Berlin, Germany, 27 August 2004.

[41] See Hugo van Alphen v. The Netherlands, Communication no. 305/1988, UN Doc. CCPR/C/39/D/305/1988 (1990).

[42] In A v Australia, the UN Human Rights Committee determined that:

9.2 ... the Committee recalls that the notion of 'arbitrariness' must not be equated with 'against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. The State party however, seeks to justify the author's detention by the fact that he entered Australia unlawfully and by the perceived incentive for the applicant to abscond if left in liberty. The question for the Committee is whether these grounds are sufficient to justify indefinite and prolonged detention.

9.3 The Committee agrees that there is no basis for the author's claim that it is per se arbitrary to detain individuals requesting asylum. Nor can it find any support for the contention that there is a rule of customary international law which would render all such detention arbitrary.

9.4 The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification.

[43] Report of the Working Group on Arbitrary Detention, Deliberation no. 5, Situation regarding immigrants and asylum seekers, E/CN.4/2000/4, 28 December 1999, pages 29-30.

[44] ibid., Principle 3.

[45] ibid., Principle 7.

[46] ibid., Principle 8.

[47] A v. Australia no. 560/1993 CCPR/C/59/D/560/1993, 30 April 1997, C v. Australia no. 900/1999, UN Doc CCPR/C/76/D/900/1999, 13 November 2002 and Bakhtiyari v. Australia Communication no. 1069/2002, UN Doc CCPR/C/79/D/1069/2002, 6 November 2003. See also Concluding Observations of the Human Rights Committee: Australia, A/55/40, 24 July 2000.

[48] Report of the Working Group on Arbitrary Detention, Addendum, Visit to Australia, /CN.4/2003/8/Add.2, 24 October 2002 (the UNWGAD Report).

[49] Report of Justice PN Bhagwati, Regional Advisor for Asia and the Pacific of the United Nations High Commissioner for Human Rights, Mission to Australia 24 May to 2 June 2002, Human Rights and Immigration Detention in Australia accessed at http://www.unhchr.ch/huricane/huricane.nsf/0/ on 15 May 2005.

[50] HREOC, Those Who've Come Across the Seas, Detention of unauthorised arrivals, May 1998, HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, April 2004.

[51] Australia became party to the ICCPR in 1980.

[52] Principle 11(1) states: 'A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority ...'. UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by General Assembly resolution 43/173 of 9 December 1988.

[53] Israel Concluding Observations, 1998 - CCPR/C/79/Add.93 paragraph 21.

[54] United Nations Human Rights Committee in its views in Mukong v. Cameroon (1995) 2 IHRR 131.

[55] UN Human Rights Committee, General Comment no. 8, Right to liberty and security of persons (Aricle 9), 30 June, 1982.

[56] United Nations, Economic and Social Council, Commission on Human Rights Fifty-ninth session, Item 11(b) of the provisional agenda, Civil And Political Rights, Including The Question Of Torture And Detention: Report Of The Working Group On Arbitrary Detention, Addendum, Visit To Australia E/CN.4/2003/8/Add.2, 24 October 2002 accessed at http://www.unhchr.ch/Huridocda/Huridoca.nsf/ on 15 November 2004.

[57] Australia became a party to the Refugee Convention on 22 January 1954, and to its 1967 Protocol on 13 December 1973.

[58] See Article 1A of the Refugee Convention.

[59] A person is a refugee as soon as he or she fulfils the criteria contained in the Refugee Convention. This necessarily occurs prior to the time at which refugee status is formally determined. It is therefore a basic principle of international refugee law that asylum-seekers are to be treated as refugees unless or until they have been found not to be in need of international protection. Therefore, unless otherwise provided in the Refugee Convention, asylum-seekers are entitled to the same rights as refugees under the Refugee Convention. This includes the safeguards provided for in Article 31.

[60] Summary Conclusions on Article 31 of the 1951 Convention relating to the Status of Refugees - Revised, Geneva Expert Round Table, 8-9 November 2001, paragraph 11(a).

[61] See page 27 for further detail on the breach of Article 31(1).

[62] Office of the United Nations High Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999), (UNHCR Guidelines) paragraph 1.

[63] UNHCR Guidelines, Guideline 2.

[64] ibid.

[65] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 Re-edited, Geneva, January 1992, paragraph 196.

[66] UNHCR Guidelines, Guideline 3. The exceptional circumstances include:

to verify identity;

to determine the elements on which the claim for refugee status or asylum is based (including only a preliminary interview, not the entire determination procedure);

where asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities; or

to protect national security and public order.

[67] UNHCR Guidelines, Guideline 3, paragraph 2.

[68] UNHCR Guidelines, Guideline 3, paragraph 3.

[69] Executive Committee of the UNHCR, Detention of Asylum Seekers and Refugees: The Framework, the Problem and Recommended Practice, 4 June 1999, EC/49/SC/CRP.13, paragraph 16.

[70] Conclusion No. 44 (XXXVII) - 1986 - Detention of Refugees and Asylum Seekers.

[71] Preamble to the 1954 Convention Relating to the Status of Stateless Persons.

[72] Conclusion on the return of persons found not to be in need of international protection no. 96 (LIV) - 2003, paragraph (h).

[73] The 1989 Convention on the Rights of the Child (CRC) entered into force on 2 September 1990. Australia signed and ratified the CRC on 22 August 1990 and 14 December 1990 respectively.

[74] Concluding Observations of the Committee on the Rights of the Child, Australia, UN Doc. CRC/C/15/Add.79 (199), paragraph 20.

[75] See page 38 for details of the Human Rights Committee findings.

[76] See Chapter 2 for further details.

[77] HREOC, A Last Resort?, page 70.

[78] In Al-Kateb v. Godwin [2004] HCA 37 at paragraph 79 it was held that 'The appellant submitted, and it was not contested, that he is a 'stateless person'. That term is defined in Art 1 of the Convention relating to the Status of Stateless Persons ('the Stateless Persons Convention') as meaning one 'who is not considered as a national by any State under the operation of its law'. Long-term residency in Kuwait or birth there did not guarantee to Palestinians citizenship or the right to permanent residence'.

[79] Al-Kateb v. Godwin [2004] HCA 37, paragraph 24.

[80] ibid., paragraph 105.

[81] Minister for Immigration and Multicultural and Indigenous Affairs v. Al Masri (2003) 126 FCR 54.

[82] Al-Kateb v. Godwin [2004] HCA 37, paragraph 196.

[83] Re Woolley; Ex Parte Applicants M276/2003 (Re Woolley), Minister for Immigration and Multicultural and Indigenous Affairs v. B [2004] HCA 20. (B and B).

[84] Al-Kateb v. Godwin [2004] HCA 37, paragraphs 44-46, 232 and 298.

[85] Al-Kateb v. Godwin [2004] HCA 37, paragraphs 62-73 and 238-9.

[86] Al-Kateb v. Godwin [2004] HCA 37, paragraphs 12, 36, 41-49 and 223-37.

[87] Minister for Immigration and Multicultural and Indigenous Affairs v. B [2004] HCA 20 at paragraph 54, and Re Woolley; Ex Parte Applicants M276/2003 by their next friend GS [2004] HCA 4.

[88] Justice Gummow of the High Court in his dissenting opinion contended that in the Al-Kateb case 'the continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government'.

[89] Al-Kateb v. Godwin [2004] HCA 37 at paragraph 75.

[90] Accessed at: http://www.minister.immi.gov.au/media_releases/media04/v04126.htm on 10 January 2005.

[91] See Chapter 3, page 57 for further details.

[92] Medicare is a government subsidised national health care support scheme.

[93] The Pharmaceutical Benefits Scheme (PBS) is a national subsidy of prescription medication financed by the Australian Federal Government.

[94] See page 58 for further details on the Removal Pending Bridging Visa.

[95] When introducing the original Migration Amendment Bill on 5 May 1992, the then Minister for Immigration, Gerry Hand, told the House of Representatives:

The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community.

On 19 February 2002, the then Minister for Immigration, Multicultural and Indigenous Affairs, Philip Ruddock, told the Australian Parliament:

Late last year ... we were able to pass certain laws which strengthened our territorial integrity. This strategy has been successful in deterring potential illegal immigrants from making their way to Australia.

Most recently, the Immigration Minister, Senator Amanda Vanstone, in a joint media release with the Attorney-General Philip Ruddock on 13 May 2004 in response to the HREOC Report, said that an immigration policy that did not include the detention of children:

... would in practice encourage the inclusion of children in people smuggling operations.

[96] It is also important to note the view of the minority in the High Court that a system of detention can, at the same time, have a non-punitive and a punitive purpose, Al-Kateb v. Godwin [2004] HCA 37 at paragraphs 135-138.

[97] Guy Goodwin-Gill, Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection, prepared at the request of the Department of International protection for the UNHCR Global Consultations, October 2001, paragraph 128.
http://www.unhcr.ch/cgi-bin/texis/vtx/home/

[98] This may amount to constructive refoulement, further details of which are at page 20.

[99] The death was also reported in Al-Furat newspaper, "Permanent Residency for one Iraqi Refugee, Death for Another," 16 December 2004.

[100] Westernisation (Situation of Western Returnees in Iraq), DIMIA Country Information Service, REF: IRQ050105, January 2005.

[101] ibid.

[102] ibid.

[103] Deported to Danger, Edmund Rice Centre for Justice and Community Education, September 2004 accessed at http://www.erc.org.au/research/1096416029.shtml on May 15 2005.

[104] Senate Hansard 8 February 2001 - Government Response to the Senate Committee 2000 in relation to Recommendation 11.1.

[105] Accessed at: http://www.phaa.net.au/anzjph/anzjph/2004%20Edition/ on 29 April 2005.

[106] Ministerial Statement to Senate Estimate Committee - VPS065/2005, released 25 May 2005.

[107] Transcript of interview conducted on 25 May 2005, reported by Eleanor Hall, with the Royal Australian and New Zealand College of Psychiatrists.

[108] ibid.

[109] S v. Secretary, Department of Immigration ...amp; Multicultural and Indigenous Affairs [2005] FCA 549

at paragraph 2.

[110] Submission to the HREOC National Inquiry Into Children in Immigration Detention, Dr Michael Dudley, Conjoint Senior Lecturer, School of Psychiatry UNSW and Sydney Children's Hospital, 9 January 2003.

[111] HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, page 148.

[112] S v. Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 at paragraph 2.

[113] ibid. at paragraph 42.

[114] ibid. at paragraph 51.

[115] ibid. at paragraph 9.

[116] ibid. at paragraph 15.

[117] ibid. at paragraph 12.

[118] ibid. at paragraph 16.

[119] ibid. at paragraph 29, paragraph 30.

[120] ibid. at paragraph 8.

[121] ibid. at paragraph 20.

[122] ibid. at paragraph 23.

[123] ibid. at paragraph 91.

[124] ibid. at paragraph 98.

[125] ibid. at paragraph 111.

[126] ibid. at paragraph 116 (paragraph 26 of Dr Frukacz's affidavit).

[127] ibid. at paragraph 148 (paragraph 22 of Dr Frukacz's affidavit).

[128] ibid. at paragraph 174.

[129] Dr Jureidini assessed 'S' for the purposes of the proceedings. Drs Dudley and Richards had visited Baxter in a voluntary capacity and Dr Richards had presented a written assessment of M's mental health to GSL staff.

[130] ibid. at paragraph 181.

[131] ibid. at paragraph 264.

[132] ibid. at paragraph 265.

[133] ibid. at paragraph 10.

[134] ibid. at paragraph 269.

[135] Article 1, 1954 Convention relating to the Status of Stateless Persons.

[136] For more information on the RPBV see page 58.

[137] Minister for Immigration and Multicultural and Indigenous Affairs v. B [2004] HCA 20.

[138] Re Woolley; Ex Parte Applicants M276/2003 by their next friend GS [2004] HCA 49.

[139] In accordance with Article 3(1), CROC as implemented by the provisions of the Family Law Act 1975 (Cth).

[140] Bakhtiyari v. Australia, Communication no. 1069/2002, CCPR/C/79/D/1069/2002, 6 November 2003, paragraph 9.2. Note that the only period of detention under consideration in this communication was the first period of detention to which Mr Bakhtiyari was subject. His second period of detention, which the Committee considered may raise similar issues under Article 9, was not the subject of the Communication.

[141] Bakhtiyari v. Australia, paragraph 9.4.

[142] However, as mentioned earlier, the in B and B overturned a decision of the Family Court and found that the Family Court did not have jurisdiction to determine the validity of the detention of a child in these circumstances. As the findings of the Human Rights Committee in this case were made on the basis that the Family Court had the power to make such orders, and the High Court has now found otherwise, the views of the Human Rights Committee need to be read in this light.

[143] Bakhtiyari v. Australia, paragraph 8.4.

[144] A declaration that a detainee is unlawfully detained and an order for his release.

[145] HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, page 392.

[146] The Australian and New Zealand Journal of Public Health, December 2004, details numerous studies enquiring into the health of children and families in immigration detention, accessed at: http://www.phaa.net.au/anzjph/anzjph/ on 20 January 2005.

[147] South Australia's Family and Youth Services, Investigation Report on Child Protection Intake from Woomera Detention Centre, 10 May 2002, page 4.

[148] Minister for Immigration and Multicultural and Indigenous Affairs, Media Centre 'HREOC Inquiry into Children in Immigration Report Tabled: Joint media release with the Attorney-General the Hon. Philip Ruddock MP', 13 April 2004, accessed at
http://www.minister.immi.gov.au/media_releases/meida04/v04068.htm on 20 October 2004.

[149] Global Consultations in International Protection EC/CG/01/17, Recommendation f); Summary Conclusions of Family Unity UNHCR/IOM/2002, General Consideration no. 5.

[150] ibid.

[151] See Chapter 3, page 54.

[152] See HREOC report no. 25, Report of an inquiry into a complaint by the child's father on behalf of his son regarding acts or practices of the Commonwealth of Australia (DIMIA).

[153] As part of this reassessment, eventual recognition of 27 Iraqis and 146 Afghans took place, all of whom were brought to Australia on three- and five-year temporary protection visas. A further nine Afghans were released on 29 May 2005, after almost three years in detention.

[154] Australia-Pacific: offending human dignity - the 'Pacific Solution', AI Index ASA 12/009/2002, 25 August 2002. See also Amnesty International Position on Nauru:
http://www.amnesty.com.au/refugees/report11.html accessed on 19 October 2004. For a discussion of the legality of extra-territorial processing of asylum claims, see also UK/EU/UNHCR: Unlawful and Unworkable - Amnesty International's views on proposals for extra-territorial processing of asylum claims, AI Index: IOR 61/004/2003, 18 June 2003.

[155] Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004, par. 10.

[156] It is noted that since 1 March 2005, detainees are allowed freedom of movement outside the camp between 8am and 7pm from Monday through to Saturday, subject to some exclusion zones such as the airport.

[157] Dr Fethi Touzri, Medical Report, 8/7/03.

[158] Dr Fethi Touzri, Medical Report, 8/7/03.

[159] ACM Baxter Immigration Detention Facility, Medical Progress Notes, July 2003.

[160] ACM Baxter Immigration Detention Facility, Medical Progress Notes, 24 August 2003.

[161] ACM Baxter Immigration Detention Facility, Medical Progress Notes, 31 October 2003.

[162] Ibid.

[163] ACM Baxter Immigration Detention Facility, Medical Incident Report, 11 November 2003.

[164] ACM Baxter Immigration Detention Facility, Medical Incident Report, 21 November 2003.

[165] Hogarth, L, Letter to Hon. Senator Vanstone; Minister for Immigration, Multicultural and Indigenous Affairs, 22 January 2004.

[166] Commonwealth of Australia, Official Committee Hansard,
http://www.aph.gov.au/hansard/senate/commttee/S7314.pdf, 17/02/04

[167] According to Senator Amanda Vanstone, "Many people in detention who have been found not to satisfy the requirements for the grant of a protection visa choose to pursue several avenues of appeal. As a consequence their period of immigration detention can be extended", accessed at: http://www.minister.immi.gov.au/faq/asylum.htm on 28 January 2005. See also Note no. 59/97, File no. 250/3/12/2, the Australian Government's response to the views of the UNHRC in A v. Australia, at paragraph 6.

[168] 'It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non-citizen came to or remained in this country without permission.' Al-Kateb v. Godwin [2004] HCA 37, per Hayne J., at paragraph 268.

[169] Submissions of the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the Attorney-General of the Commonwealth, in Al-Kateb v. Godwin [2004] HCA 37 and MIMIA v. Al Khafaji, at paragraph 20, and Note no. 59/97, File no. 250/3/12/2, the Australian Government's response to the views of the UNHRC in A v. Australia, at paragraph 5.

[170] Mary O'Kane, 'Refugee and Asylum Seeker issues in Australia', June 2003.

[171] Joint Standing Committee on Foreign Affairs, Defence and Trade: Human Rights Subcommittee, Aspects of HREOC's Annual Report 2000-01 Concerning Immigration Detention Centres, page 7, accessed at
http://www.aph.gov.au/hansard/joint/commttee/j5748.pdf on 28 January 2005.

[172] DIMIA Residential Housing Project Fact Sheet (Number 83), accessed at
http://www.immi.gov.au/facts/83rhps.htm on 28 January 2005.

[173] The Detention Services Provider for DIMIA is Global Solutions Limited (Australia) Pty Ltd, also known as GSL.

[174] Senate Hansard, 16 June 2004, Matters of Public Interest: Immigration: Residential Housing Project, at page 23896, accessed at
http://www.aph.gov.au/hansard/senate/dailys/ds160604.pdf on 10 December 2004.

[175] supra.

[176] supra, at page 23897.

[177] supra, at page 23896.

[178] supra, at page 23897.

[179] See Article 16(3) UDHR, Articles 9, 10, 20 and 22 of the CRC, Article 23 ICCPR, and Article 10 ICESCR.

[180] HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, page 148.

[181] DIMIA, Migration Series Instruction 371, Alternative Places of Detention (MSI 371), 2 December 2002.

[182] Asylum Seeker Project Hotham Mission, 'Background information: visiting or accompanying people under Alternative Places of Detention'.

[183] HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, page 153.

[184] The Youth Affairs Council of South Australia, February 2003. Fact Sheet accessed at: http://www.yacsa.com.au/onlinedocs/ on 10 October 2004.

[185] HREOC, A Last Resort? National Inquiry into Children in Immigration Detention, page 833.

[186] Migration Act 1958, s. 73 and Migration Regulations 1994, Division 2.5.

[187] Reporting requirements are anywhere from every 24 hours to four weeks.

[188] The Minister announced on the 30 May 2005 that she would offer the RPBV to 17 people, including seven people who are already living in the community.

[189] The UN Human Rights Committee, in its General Comment no. 27, Freedom of Movement (Article 12) CCPR/C/21/Rev.1/Add.9, 2 November 1999 states that, 'an alien being legally expelled from the country is ... entitled to elect the State of destination, subject to the agreement of that State' (paragraph 8).

[190] Amnesty International recommends that the RPBV regulations stipulate a time at which such a visa converts to permanent residency.

[191] Also known as subsidiary protection.

[192] The Australian NGOs advocating for complementary protection maintain that those recognised as refugees in Australia should be granted permanent protection. Accordingly, those eligible for complementary protection should also be awarded status that would allow them to remain permanently in Australia.

[193] Objective 3, Goal 1 of UNHCR's Agenda for Protection, A/AC.96/965/Add.1, 26 June 2002, calls for provision of complementary forms of protection to those who might not fall within the scope of the 1951 Convention, but who nevertheless require international protection. Australia, as a member of the Executive Committee of UNHCR, endorsed the Agenda for Protection in General conclusion on international protection (no. 92 (LIII) - 2002).

[194] Including the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. Geneva: UNHCR, United Nations High Commissioner for Refugees (February 1999).

[195] Rights attached to the bridging visa are set out in recommendation 5

[196] Full details of complementary protection can be found at page 59.

[197] Amnesty International has compiled these figures from a number of sources including DIMIA, Chilout, Human Rights and Equal Opportunity Commission and Jane Keogh who, with the help of her contacts both within and outside the detention centres, has compiled a database of detainees spanning the past three years.