First jail them, then send 'm the Bill

These are the asylum seekers who arrive under their international right to "seek asylum in any country" (Art 14, Declaration of Human Rights).

When the horrors of detention are over and they are released, Australia enacts an equally brazen audacity: it sends them a Bill for the cost of having jailed them - often for years.

Apart from the shocking aspect of a massive debt against the Australian Commonwealth that deeply shocks the recipient, this law is deliberately intended to injure, for years to come, the human rights of those who receive it: the computer on every airport and in many embassies will flag and alert immigration and customs staff. In keeping this law in place, Australia undermines the right to freedom to travel and the right to movement across the globe for all asylum seekers and refugees.

Resources:

• Commonwealth Ombudsman - DIAC: Administration of detention debt waiver and write-off - Overall, the Ombudsman's investigation found that DIAC is administering debt waiver and write-off according to the legislative and policy requirements. However, the investigation also found scope for improvement. In particular, DIAC can improve the information it provides to people, timeliness and prioritisation in processing cases, and the consistency and reasonableness of decisions on debt waiver and write-off. (PDF File 129 Kb)

What's on this page

This page is about the Billing for Detention policy. Below is an outline of the policy, written by Labor for Refugees Victoria, including - in the blue-rimmed box - the motion that was endorsed and passed during May 2008.

Current Policy

The Migration Act 1958 s.209 stipulates that a 'non-citizen' who is detained is liable to pay the Australian Government the costs of his or her detention. This liability includes costs of transportation of the person to and from an immigration detention centre and the daily allowance amount for each day the person spends in detention, and under s.211, the cost of removal from Australia for those who are deported.

The Act allows a debt for detention costs to be incurred by any person or family who has been detained by the Australian Government, and who has spent time in an Australian Detention facility. The debt is payable unless specifically waived (cancelled) or written off (put on "hold") by the Australian Government.

It applies to anyone who entered Australia without a visa and who spent time in a Detention Centre; therefore to all individuals or families who -

• sought asylum as of right under the Refugees Convention and returned voluntarily or involuntarily to their countries of origin;
• were subsequently released from immigration detention after the grant of a Temporary Protection or Humanitarian visa, and
• were granted permanency through Ministerial intervention (even though these liabilities are usually not pursued on 'public interest grounds', a quaint and subjective policy in itself).

The policy, and administration of previous debts, has been inherited from previous Australian governments. This policy was originally intended to "minimise the costs to the Australian community of the detention, maintenance and removal or deportation of unlawful non-citizens". However, in applying this debt legislation to genuine asylum seekers/refugees, it further burdens some of the most vulnerable people in society, many of whom have already been traumatised by war or other violence and hasty departure from their countries or origin. These people, detained under the mandatory detention Act, after fleeing intolerable circumstances, now find they have a large debt - applicable to all detainees (even if not later pursued). They, of course, had no choice over the fact of their detention, the duration of their detention, or the place where they will be incarcerated.

Why change is needed

• The policy is intentionally punitive, unjust and inhumane.

• Waiver or writing off debts is subject to Ministerial and departmental discretion. Only ten applications to waive (cancel) debts were approved last financial year; 3571 were written off (not removed) and could be later reinstated.

• The size of some debts cause enormous stress, anxiety and financial hardship to many individuals who are now living lawfully in the Australian community, as well as for many who have left Australia (Ombudsman's Report April 2008). Most are people who have limited income earning capacity. Some debts are in excess of $200,000.

• The costs of detention are arbitrary and are determined by DIAC.

• Debts 'written off' do not extinguish the debt; recovery may be pursued at a later date. Only debts specifically 'waived' are permanently extinguished. A detainee must apply for a debt to be waived or written off.

• The Ombudsman has reported that former detainees are not notified by DIAC of the differences between a debt being waived or written off; consequently many do not apply for a waiver and are unaware that a debt written off is still recorded against their name.

• An outstanding debt remains on departmental records for anyone who seeks to re-enter Australia and can result in a person being refused entry to Australia in future years.

• Those who owe a debt are also placed on the international Movement Alert List (MAL) alongside criminals and terrorists which places many at risk when travelling. Under DIAC policy, the MAL alert is not altered, even if a debt is written off or arrangements made for part payment.

• The Ombudsman states "the decision to raise a detention debt is not reviewable on merit by an administrative tribunal. There are therefore few options open to a person who has accrued a detention debt". It is an entirely arbitrary exercise of power, by the department or Minister.

• A detention debt can adversely affect a change in visa status unless the debt is repaid.

• Those who can accrue a detention debt include overseas students whose visas lapse for whatever reasons, failed asylum seekers returned to their country of origin, and 'absorbed' citizens', who for reasons of 'character' are returned to their country of origin. The debt recorded by MAL adversely affects their capacity to begin life anew. A lifetime penalty? Seems so.

• According to the Ombudsman's report, detention debts totalled around $8 million as of June 2007. Of this 60% are overdue and are considered unlikely to be collected.

• As a punitive measure, the billing of those who have sought asylum is contrary to the spirit and intent of the Refugees Convention. It is clearly intended to punish individuals and families for being outside the 'orderly processes' of the offshore refugee program. Refugees and asylum seekers should not be penalised for the means of their arrival in Australia.

Action required:

Labor for Refugees (Victoria) is calling for the urgent repeal of Section 209 under which asylum seekers are billed for the cost of their mandatory detention, and for the existing Section 209 debts to be waived. The practice of sending a bill to this most disempowered section of the community who have had no say in their detention and who have merely exercised their right under international law to seek asylum in this country is grotesque and reprehensible.

The new Federal Labor Government has a unique opportunity to lead change in community attitudes to refugees and asylum seekers, to restore respect for human rights and Australia's international treaty obligations and to create a more sympathetic, outward looking and inclusive Australia. Refugees and asylum seekers make up less than 10% of the current migrant intake yet they constitute one of the most vulnerable sections of society due to years of vilification, significantly harming their personal prospects of successful resettlement in Australia, to the detriment of the community as a whole. Those who have arrived 'on shore' by boat have been particularly singled out for destructive political rhetoric yet their numbers overall are comparatively small.

Please discuss this matter at your branch or FEA and send motions of support to us, as below.