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Appendices and Notes

Desparation at the Woomera razor wire fence during Easter 2002

The impact of indefinite detention:

the case to change
Australia's mandatory detention regime

Amnesty International
London, UK
29 June 2005

This is a copy of the original Amnesty Report as found here on May 24, 2008.

"We came to a country we heard has human rights and freedom. We can't believe what's happening to us ... We haven't any human rights. We are just like animals. We do not have a normal life like a human. Our feeling is dead. Our thinking is dead. We are very sad about everything. We can't smile."

- Ibrahim Ishreti [1]    
Appendix 1: Amnesty International's work on refugees

Amnesty International aims to contribute to the worldwide observance of human rights as set out in the Universal Declaration of Human Rights and other internationally recognised standards. Amnesty International:

  • Opposes grave violations of the rights of every person.

  • Supports the right of people to freely hold and express their convictions and to be free from persecution by reason of their ethnic origin, sex, colour or language.

  • Defends the right of every person to physical and mental integrity.

  • Opposes human rights abuses by state and non-state actors alike. Refugee rights are a fundamental tenet of human rights. Article 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention) sets out the definition of a refugee. Article 33 of the Refugee Convention prescribes the fundamental principle of non-refoulement, an established principle of international customary law, which is binding on all states.

The Refugee Convention also addresses other obligations that are imposed on the contracting state with respect to refugees in its territory. These include:

  • That the provisions of the Refugee Convention be applied without regard to race, religion or country of origin (Article 3).

  • That the contracting state affords refugees free access to the courts of law of the contracting state and any other benefits accorded to the nationals of the contracting state (Article 16).

  • The contracting state shall not impose penalties, on account of a refugee who enters its territory without authorisation (Article 31).

Amnesty International works to prevent the human rights violations that cause refugees to flee their homes. At the same time it opposes the forcible return of any individual to a country where he or she faces serious human rights violations. Amnesty International therefore seeks to ensure effective and durable state protection for individuals from being sent against their will to a country where they risk such violations, or to any third country where they would not be afforded effective and durable protection against such return.

Appendix 2: Selected extracts of relevant legislation and international instruments

The Migration Act 1958 (Cth)

Section 189 (1)

  1. ... if an officer knows or reasonably suspects that a person in the migration zone ... is an unlawful non-citizen, the officer must detain the person.

Section 196

  1. An unlawful non-citizen detained under s. 189 must be kept in immigration detention until he or she is:
    1. removed from Australia under section 198 or 199;
    2. deported under section 200; or
    3. granted a visa.
  2. To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
  3. To avoid doubt, subsection (1) prevents the release even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.

Section 198

  1. An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

    [....]

  1. An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
    1. the non-citizen is a detainee; and
    2. the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
    3. one of the following applies:
      1. the grant of the visa has been refused and the application has been finally determined; and
      2. the visa cannot be granted; and
    4. the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

Section 417

  1. If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal* under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
     * including the Refugee Review Tribunal

The Universal Declaration of Human Rights 1948

Article 3

Everyone has the right to life, liberty and security of person.

Article 9

No-one shall be subjected to arbitrary arrest, detention or exile.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 16(3)

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention)

Article 1A(2): [a refugee is someone who] ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear is unwilling to return to it.

Article 3: The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.

Article 16(1): A refugee shall have free access to the courts of law on the territory of all Contracting States.

Article 21: As regards housing, the Contracting States, in so far as the matters regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

Article 26: Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.

Article 31(1): The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom were threatened ... enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Article 31(2): The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country ...

Article 33(1): No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Article 34: The Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees.

Appendix 3: Chronology

1951 The Refugee Convention was concluded, partly as a response to the refugee crisis created by the Second World War. Australia played a leading role in drafting the Convention.

22 April 1954 The Refugee Convention came into force after the 6th state party's ratification. It was Australia's accession that brought the Convention into operation.

1954 -1989 Australia received less than 500 asylum applications per year.

1989-1991 Increasing numbers of refugees claimed asylum in Australia, mainly due to students already in Australia claiming protection after the Tiananmen Square massacre in China in June 1989.

1 September 1992 Australia's mandatory detention policy took effect, under the Migration Reform Act 1992. The Minister for Immigration acquired the power to designate alternate places of detention.

1998 Amnesty International published its report A Continuing Shame and the Human Rights and Equal Opportunity Commission (HREOC) released its report Those who've come across the seas: Detention of unauthorised arrivals. HREOC concluded that Australia's mandatory detention policy was arbitrary and in breach of international law (Article 9, ICCPR). Amnesty International's report reached similar conclusions and emphasised that, 'fairness and respect for the human dignity of refugees risking their lives to seek protection in Australia have become dependent on a web of complex legal conditions, developed primarily to make the administration of border control more efficient.'

20 October 1999 The Temporary Protection Visa (TPV) scheme was introduced in Australia whereby unauthorised arrivals granted refugee status are only eligible for three years of temporary protection.

2001 Several new acts amended Australia's Migration Act, including:

  1. Migration Amendment (Excision from Migration Zone) Act 2001, which prevented undocumented asylum-seekers arriving in Australia's excised territories from seeking asylum in Australia. If recognised as refugees, the government attempts to relocate those who arrived in the excised territory to another country.

  2. Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 enables authorities to send an offshore entry person to a 'declared country'.

  3. Border Protection (Validation and Enforcement Power) Act 2001, which allows the prevention of arrival to and removal from Australia's territorial waters of a vessel if it is attempting to enter Australia unlawfully. It also prevents any legal challenges to forced removal.

  4. Migration Legislation Amendment (Judicial Review) Act 2001, which introduced a privative clause that severely restricts access to judicial review of administrative decisions made under the Migration Act.

  5. Migration Legislation Amendment Act (No 1) 2001, which restricts access to the courts for judicial review of migration decisions.

  6. Migration Legislation Amendment Bill (No. 6) 2001, which limited the definition of 'refugee' and allowed adverse inferences to be drawn from an asylum-seeker's lack of identity documents.

Amnesty International expressed concerns at the restriction of rights for those attempting to seek asylum in Australia, including those arriving in excised territories.

March 2001 The Commonwealth Ombudsman released a report on immigration detention centres (Commonwealth Ombudsman (2001), Report of an own motion investigation into the Department of Immigration and Multicultural Affairs' immigration detention centres). The report expressed concerns about conditions in detention and the detention of women and children.

June 2001 The Joint Standing Committee on Foreign Affairs, Defence and Trade released a report on Australian immigration detention centres (The Joint Standing Committee on Foreign Affairs, Defence and Trade (June 2001), A Report on Visits to Immigration Detention Centres). The report recommended improvements to the conditions in detention and some changes to the mandatory detention policy.

August 2001 The Tampa incident took place. Some 433 asylum-seekers were effectively refused entry into Australia's migration zone for the purposes of seeking asylum.

September 2001 Nauru and Papua New Guinea agreed to accept some of the Tampa asylum-seekers - the 'Pacific Solution' was formed.

October 2001 The 'children overboard' incident took place. Asylum-seekers travelling to Australia by boat were intercepted by Australian authorities and the government accused them of throwing their children overboard as the boat sank. Following widespread concern that the children had not in fact been thrown in the water, the government's allegations were the subject of a Select Committee Inquiry in 2002.

31 January 2002 The government invited the United Nations Working Group on Arbitrary Detention (the UNWGAD) to visit Australia.

24 May - 6 June 2002 Justice Bhagwati, Regional Advisor for Asia and the Pacific of the UNHCR, and the UNWGAD both visited Australia to investigate human rights issues relating to immigration detention.

31 July 2002 Justice Bhagwati released the report on his visit to Australia, in which he found that 'the human rights situation of persons in immigration detention in Australia is a matter of serious concern' and said that a more humane approach to illegal immigration 'would certainly be desirable'. (The 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,
see http://www.unhchr.ch/huricane/huricane.nsf/newsroom).

October 2002 The UNWGAD released its report, raising concerns about the mandatory detention of unauthorised arrivals. The report criticised the mandatory, automatic and indiscriminate nature of detention, its potentially indefinite duration and the absence of judicial review. It also addressed the psychological impact of detention on asylum-seekers, the denial of family unity and the detention of children. (See 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).)

12 November 2002 HREOC released its report on the transfer of detainees to prisons, following an inquiry into a complaint by six asylum-seekers concerning their transfer from immigration detention centres to state prisons and their detention in those prisons (see http://www.hreoc.gov.au/).

13 December 2002 In a joint media release, the Minister for Foreign Affairs and the Minister for Immigration rejected the UNWGAD Report. The release suggested that the report contained fundamental factual errors leading to a misrepresentation of Australia's policies and confusion about the relationship between international and Australian law. It also said that the UNWGAD's recommendations skated over the sovereign right of Australia to determine who enters its borders and the circumstances of that entry. It argued that immigration detention is central to Australia's migration program, the protection of its borders and the ability to respond to refugee resettlement needs.

April 2003 The immigration detention centre in Woomera in South Australia was closed. The Baxter immigration detention centre replaced it and the Port Augusta residential housing project was opened, both of which are in South Australia.

November 2003 The Attorney-General established the Migration Litigation Review to consider reforms to migration and refugee litigation. The UN Human Rights Committee handed down its decision in Bakhtiyari v Australia.

December 2003 The Woomera residential housing project was closed.

25 March 2004 The Migration Amendment (Judicial Review) Bill 2004 proposed the introduction of time limits for applications for judicial review. Amnesty International made a submission on the Bill (see http://www.amnesty.org.au/__data/page/534/

April 2004 The HREOC Report 'A Last Resort? National Inquiry into Children in Immigration Detention' was released.

29 April 2004 The High Court gave its decision in Minister for Immigration and Multicultural and Indigenous Affairs v. B [2004] HCA 20.

10 June 2004 The deadline for the release of all children from immigration detention set by the HREOC Report passed without all children being released.

6 August 2004 The High Court gave its decision in Al-Kateb v. Godwin [2004] HCA 37.

August 2004 The Minister for Immigration announced that Temporary Protection Visa (TPV) holders who were in Australia on 27 August 2004 could apply for non-humanitarian visas in Australia without having to leave the country. Prior to this, TPV holders were only eligible for protection visas and s. 417 Ministerial Discretion. As at April 2005, a very limited number of TPV holders applied, as the new visas have limited rights and entitlements.

9 September 2004 Peter Qasim, a 30-year-old asylum-seeker from Kashmir, entered his seventh year in detention.

7 October 2004 The High Court of Australia gave its decision in Re Woolley; Ex Parte Applicants M276/2003 by their next friend GS [2004] HCA 49.

December 2004 Asylum-seekers in Baxter immigration detention centre undertook hunger strikes.

January 2005 A Sudanese man who had been held in immigration detention in Australia since 10 December 1997 was deported. At the time he was Australia's longest serving detainee, having been in detention for almost seven years.

February 2005 Australian permanent resident and mentally-ill woman Cornelia Rau was released from Baxter into a psychiatric care facility.

The Palmer Inquiry was opened to investigate the wrongful 11-month detention of Cornelia Rau.

March 2005 The Australian Government announced a new restricted visa class, known as the Removal Pending Bridging Visa. The visa affected a handful of long-term detainees who would be released from detention on the condition that they relinquish certain legal rights and agree to return home when the government deemed it to be appropriate. Amnesty International criticised the visa as it did not address the fundamental problems of Australia's mandatory detention regime.

May 2005 Australian woman Vivian Alvarez Solon is found in the Philippines after being wrongly deported in 2001. Two hundred further cases of wrongful detention are referred to the Palmer Inquiry.

Appendix 4: Statistics and nationalities of long term detained [197]

Where do the detainees come from and how do they arrive?

The most common countries of citizenship for detainees in 2003-2004 were:

  • People's Republic of China;
  • Iran;
  • Afghanistan;
  • Indonesia;
  • Vietnam;
  • Republic of Korea.

    The last unauthorised boat arrival in Australian waters occurred on 1 July 2003 with the arrival of 53 Vietnamese nationals aboard the Hao Kiet.

How many people are held in detention?

As at 18 May 2005 there were 928 persons held in detention on the Australian mainland, Christmas Island and Nauru. Of these approximately 137 are women and 68 are children. According to DIMIA, only about 25% of people in detention at any one time are pursuing issues flowing from a claim for asylum.

The remainder at any one time are not asylum seekers, but rather visa overstayers or otherwise unlawfully in Australia.

The highest number of children in detention at any one time between 1 January 1999 and 1 January 2004 was 842 (on 1 September 2001). Of this number, 456 were at the Woomera detention centre.

How long are people held in detention?

As at 29 May 2005, Amnesty International estimates that 188 people have been detained by the Australian Government for more than three years in immigration detention. This figure rises to 241 when those detained for more than 18 months but less than three years are included. These figures can be broken down as follows:

Detained for more than three years

Australian mainland

  • Iran - 40
  • Iraq - 1
  • Afghanistan - 24
  • Sri Lanka - 17
  • Others - 19

Sub-total - 101

Nauru

  • Iran - 2
  • Iraq - 20 (+ 2 Iraqis in Melbourne for medical treatment)
  • Afghanistan - 20
  • Bangladesh - 2
  • Pakistan - 1

Sub-total - 45 + 2 = 47

Total number of detainees held for more than three years - 148

Detained for more than 18 months but less than three years - 53

Total number of detainees held for more than 18 months - 241

How long are children held in detention?

As at 26 December 2003 the average length of detention was one year, eight months and 11 days.

The longest a child has ever been held in immigration detention is five years, five months and 20 days. This child and his mother were released from Port Hedland detention centre on 12 May 2000 after being assessed as refugees. There are currently 68 children in detention.

Footnotes

[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.

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