Preliminary Pages
Foreword
In April of 2008, the Joint Standing Committee on Migration
inspected the Villawood Immigration Detention Centre, Australia’s largest immigration detention centre. In Villawood, a variety of people are
detained including people who have overstayed business or tourist visas, former
international students who have breached their visa conditions, people with
criminal histories whose visas have been cancelled, stowaways, stateless
persons and people seeking Australia’s protection from religious and political
persecution. At the time of the Committee’s visit, there were nationals of 97
countries in detention, the majority being from the People’s Republic of China. There were 249 people in Villawood, representing just over half the nationwide
detention population of 488. Between the Committee’s visit and the time of
writing, the number detained nationwide had fallen to 279.
With the insights gained, the Committee organised a roundtable
to hear first-hand from former detainees and from regular visitors to Villawood.
Members and Senators listened to evidence that detainees who posed no risk to
the community were being held without just cause and to the detriment of their
mental health. Concerns were expressed that the current immigration detention
system is arbitrary and continues to lack transparency in its administration.
Australian policy, prior to the election of the current
Government, saw too many people spending years in immigration detention, with
little hope for a resolution of their case. Many in Villawood had been in
detention for less than three months. However at the time of the Committee’s
visit there were 46 people at Villawood who had been in detention for over two
years. Happily this number has declined markedly following the Minister’s
personal overview of long-term cases. Nevertheless, despite the changes to both
policy and to administrative culture in recent times, we can and must do
better.
Injustices of immigration detention prompted the Committee to
develop a more humane evidence-based approach to immigration detention. This
inquiry takes a wide view in examining the criteria for release from detention.
We have asked how long it is reasonable to hold a person in detention. As part
of the inquiry, we will consider community alternatives to detention and how
international experience can assist in innovative and more compassionate
approaches. The inquiry will also examine the infrastructure needs and services
that should be available to support our immigration detention policy in the
future.
Our Joint Migration Committee inquiry was also committed to
restoring dignity, justice and certainty to our treatment of those in
immigration detention. In addition to the extensive program of hearings
undertaken, the Committee has met with current and former detainees, and
visited a range of community detention housing, residential housing units,
transit centres and detention centres at Perth, Maribyrnong (Melbourne), the
Northern Immigration Detention Centre (Darwin), and Villawood (Sydney), and at Christmas
Island both the temporary facility at Phosphate Hill (still in use) and the
monster $400 million ‘super max’ site (which is yet to be used).
Partway through this inquiry, the Australian Government made a
major policy announcement outlining seven values that would underpin future
immigration detention policy. On 29 July 2008 the new Minister for Immigration and Citizenship, Senator the Hon Chris Evans, announced that three groups
would be subject to mandatory detention: unauthorised arrivals for the purpose
of health, identity and security checks; those who pose an unacceptable risk to
the community; and those who have been repeatedly non-compliant with visa
conditions or immigration processes. Outside these criteria, the Minister expects
that a person can reside in the community while their immigration status is
resolved.
Minister Evans’ announcements signalled a paradigm shift in
Australian policy. The presumption of detention that defined the policy of the
previous Government has shifted to an assumption of release following minimum
checks. The onus will be on the Department of Immigration and Citizenship to
demonstrate that detention is necessary.
This Committee welcomes the announcement of these values and
the commitment of the current Australian Government to a fairer and more humane
system for asylum seekers and others who are detained in immigration custody.
The first two terms of reference for the Committee’s inquiry
are concerned with criteria for release from detention and length of detention.
In the context of the Minister’s announcements the Committee agreed it was appropriate
to report separately and as a priority on these terms of reference. Immigration
detention in Australia: A new beginning is the first of three reports by
this Committee on immigration detention policy in Australia.
The Committee’s objective was to set open and transparent
guidelines that would enable the implementation of the new values of the
Australian Government. Our suggestions were prepared in the absence of advice
of the Department of Immigration and Citizenship as to its benchmarks. The
Committee has sought to identify what we believe to be the issues for
implementation arising from the release criteria outlined in the Minister’s
statement of values.
A recurring concern about the current immigration detention
system has been the indefinite nature of detention, with little scope or
information about the reasons or rationale for detention. This report tackles
those uncertainties and sets out the following clear and definite guidelines
for detaining individuals:
n 5 day time frames for
health checks
n up to 90 days for the
completion of security and identity checks, after which consideration must be
given to release onto a bridging visa,
n a maximum time limit
of 12 months’ detention for all except those who are demonstrated to be a
significant and ongoing risk to the community, and
n the publication of
clear guidelines regarding how the criteria of unacceptable risk and visa
non-compliance are to be applied.
The report also recommends additional measures to increase
oversight and transparency, such as:
n greater detail and scope
of the three month review conducted by the Department of Immigration and
Citizenship
n ensuring detainees
and their legal representatives receive a copy of the review
n ensuring the six
month Ombudsman’s review is tabled in parliament and that the ministerial
response to recommendations is comprehensive
n providing increased
oversight of national security assessments that may affect individuals
n enshrining the new
values in legislation
n establishing a
maximum of 12 months in detention unless a person is determined to be a
significant and ongoing risk to the Australian community, and
n opening the door to
merits and judicial review of the grounds for detention after that person has
been detained for more than 12 months. This would apply to those who remain in
detention after 12 months on the basis of a ‘significant and ongoing
unacceptable risk’ assessment.
Finally, the Committee has reported on two other issues
related to the release from detention. The first issue concerns the procedures
for removal from Australia of persons who are in this country unlawfully and
have exhausted all avenues of appeal to stay. Many persons voluntarily depart Australia and the Department of Immigration and Citizenship facilitates arrangements for
others. However there are also harrowing stories of persons forcibly removed,
or losing possessions when taken into detention for the purposes of removal. The
Committee lacked critical information to set out new procedures for removals
but identified a number of factors to be included in the development of
guidelines for removals. The Committee has also recommended the extensive
involvement of external professionals and advocacy groups in deportations.
Secondly the Committee considered the practice of charging a
person for their own detention. This practice was considered harsh and contrary
to the stated value that immigration detention is not punitive. The Committee strongly
recommends that all debts should be waived immediately.
Any discussion of immigration detention policy in Australia raises the legacy of past approaches, past failings, and past shame. As the
Committee heard in evidence, there are many individuals in Australia and elsewhere around the world, as well as their families and loved ones, who
continue to struggle to rebuild their lives and recover from their experience
in immigration detention in Australia.
However it is the intention of the Committee for this report,
and the two that follow, to look constructively to the future – to build from the
new Government values statement, a rational and humane immigration detention
system. This new system would align Australia with its obligations under the
international laws and conventions to which we are party. Above all it would
accord with the national ethos of a ‘fair go’.
My colleagues on the Committee hold a range of views about
immigration detention policy, but I believe I can say that all engaged with
this inquiry with a genuine interest, commitment and desire to find the best
outcomes both for the Australian community and those in immigration detention.
I would like to thank all who have participated in this
inquiry to date, particularly those who have written submissions or given
evidence at public hearings. I am also grateful to the Department of
Immigration and Citizenship for facilitating the Committee’s meetings with
detention clients. Thanks are especially due to the Committee secretariat for their work during the inquiry, our endless meetings and in producing the report.
Hopefully this will be not just a new beginning for people
held in detention, but for Australian society in determining the detention
time, nature and treatment of those who come to our shores.
Mr Michael
Danby MP
Chair
Membership of the
Committee
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Chair
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Mr Michael Danby MP
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Deputy
Chair
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Hon Danna Vale MP
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Members
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Senator Andrew Bartlett (to 30 June 2008)
Senator Catryna Bilyk (from 1 July 2008)
Ms Yvette D’Ath MP
Senator Alan Eggleston
Mr Petro Georgiou MP
Senator Sarah Hanson-Young (from 27 August 2008)
Senator Anne McEwen
Senator Helen Polley (to 1 July 2008)
Hon Dr Sharman Stone MP (from 10 November 2008)
Mr Don Randall MP (to 10 November 2008)
Mr Tony Zappia MP
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Committee secretariat
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Secretary
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Dr Anna Dacre
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Inquiry
Secretary
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Ms Anna Engwerda-Smith
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Senior
Research Officer
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Mr Steffan Tissa
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Office
Manager
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Ms Melita Caulfield
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Terms of reference
The Joint Standing Committee on Migration
is inquiring into immigration detention in Australia. The Committee will
examine:
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the criteria that should be applied in determining how long a
person should be held in immigration detention
n the criteria that
should be applied in determining when a person should be released from
immigration detention following health and security checks
n options to expand the
transparency and visibility of immigration detention centres
n the preferred
infrastructure options for contemporary immigration detention
n options
for the provision of detention services and detention health services across
the range of current detention facilities, including Immigration Detention
Centres, Immigration Residential Housing, Immigration Transit Accommodation and
community detention
n options for
additional community-based alternatives to immigration detention by
a) inquiring
into international experience
b) considering
the manner in which such alternatives may be utilised in Australia to broaden the options available within the current immigration detention
framework
c) comparing
the cost effectiveness of these alternatives with current options.
(5 June 2008)
List of abbreviations
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AHRC
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Australian Human Rights
Commission
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AIDS
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Acquired
Immune Deficiency Syndrome
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ASIO
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Australian Security Intelligence
Organisation
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ASRC
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Asylum Seeker Resource Centre
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DeHAG
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Detention
Health Advisory Group
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DIAC
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Department of Immigration and
Citizenship
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DOHA
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Department of Health and Ageing
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GSL
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Global Solutions Limited
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FASSTT
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Forum of Australian Services for
Survivors of Torture and Trauma
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HIV
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Human
Immunodeficiency Virus
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IDAG
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Immigration Detention Advisory
Group
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IGIS
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Inspector-General of Intelligence
and Security
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IOM
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International Organisation for
Migration
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MAL
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Movement Alert List
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MOC
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Medical Officer of the Commonwealth
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MSI
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Migration Series Instructions
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MRT
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Migration Review Tribunal
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PAM
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Procedures Advice Manual
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RILC
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Refugee and Immigration Legal
Centre
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RRT
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Refugee Review Tribunal
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SCALES
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Southern Communities Advocacy
Legal and Education Service
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TB
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Tuberculosis
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UNHCR
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United Nations High Commissioner for Refugees
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List of recommendations
2 Criteria for release – health, identity and security
checks
Recommendation 1
The Committee recommends that, as a priority, and in line with
the recommendations of the Australian National Audit Office, the Department of
Immigration and Citizenship develop and publish criteria setting out what
constitutes a public health risk for immigration purposes.
The criteria should draw on the treatment standards and
detention provisions that otherwise apply to all visa applicants and to
Australian citizens and residents who pose a potential public health risk.
The criteria should be made explicit and public as one basis
on which immigration detainees are either approved for release into the
community or temporarily segregated from the community.
Recommendation 2
The Committee recommends that the Department of Immigration
and Citizenship establish an expected time frame such as five days for the
processing of health checks for unauthorised arrivals.
This expected time frame should be established in consultation
with the Immigration Detention Advisory Group, the Detention Health Advisory
Group, the Department of Health and Ageing, the Commonwealth Ombudsman and the
Human Rights Commission.
An optimum percentage of health checks of unauthorised
arrivals should be completed within this time frame. The department should
include in its annual report statistics on the proportion of health checks so
completed, and where health checks took longer than five days, specify the
reasons for the delay.
Recommendation 3
The Committee recommends that, in line with a risk-based
approach and where a person’s identity is not conclusively established within
90 days, the Australian Government develop mechanisms (such as a
particular class of bridging visa) to enable a conditional release from
detention. Conditions could include reporting requirements to ensure ongoing
availability for immigration and/or security processes.
Release from immigration detention should be granted:
n in the absence of a
demonstrated and specific risk to the community, and
n except where there is
clear evidence of lack of cooperation or refusal to comply with reasonable
requests.
Recommendation 4
The Committee recommends that, in line with a risk-based
approach, and where a person’s security assessment is ongoing after 90 days of
detention, the Australian Government develop mechanisms (such as a particular
class of bridging visa) to enable a conditional release from detention.
Conditions could include stringent reporting requirements to ensure ongoing
availability for immigration and/or security processes.
Release from immigration detention should be granted:
n where there is little
indication of a risk to the community, as advised by the Australian Security
Intelligence Organisation, and
n except where there is
clear evidence of lack of cooperation or refusal to comply with reasonable
requests.
Recommendation 5
The Committee recommends that, where a person’s security
assessment is ongoing after six months of detention, the Australian Government
empower the Inspector-General of Intelligence and Security to review the
substance and procedure of the Australian Security Intelligence Organisation
security assessment and the evidence on which it is based.
The Committee recommends that the Inspector-General provide
advice to the Commonwealth Ombudsman as to whether there is a legitimate basis
for the delays in security assessment. This advice should be incorporated into
the evidence considered by the Ombudsman in conducting six-month reviews.
3 Criteria for release – unacceptable risk and repeated
non-compliance
Recommendation 6
The Committee recommends that the Department of Immigration
and Citizenship develop and publish the criteria for assessing whether a person
in immigration detention poses an unacceptable risk to the community.
Recommendation 7
The Committee recommends that the Department of Immigration
and Citizenship individually assess all persons in immigration detention,
including those detained following a section 501 visa cancellation, for risk
posed against the unacceptable risk criteria.
In the case of section 501 detainees, the Department of
Immigration and Citizenship should take into account whether or not the person
is subject to any parole or reporting requirements; any assessments made by
state and territory parole boards and correctional authorities as to the
nature, severity and number of crimes committed; the likelihood of recidivism;
and the immediate risk that person poses to the Australian community.
Recommendation 8
The Committee recommends that the Department of Immigration
and Citizenship clarify and publish the criteria for assessing the need for
detention due to repeated visa non-compliance. The criteria should include the
need to demonstrate that detention is intended to be short-term, is necessary
for the purposes of removal and that prior consideration was given to:
n reissue of the
existing visa, or
n a bridging visa, with
or without conditions such as sureties or reporting requirements.
Recommendation 9
The Committee recommends that the Australian Government apply
the immigration detention values announced on 29 July 2008 and the
risk-based approach to detention to territories excised from the migration
zone.
4 Review mechanisms for ongoing detention
Recommendation 10
The Committee recommends that the Department of Immigration
and Citizenship develop and publish details of the scope of the three month
detention review.
The Committee also recommends that the review is provided to
the person in immigration detention and any other persons they authorise to
receive it, such as their legal representative or advocate.
Recommendation 11
The Committee recommends that the House of Representatives
and/or the Senate resolve that the Commonwealth Ombudsman’s six month detention
reviews be tabled in Parliament and that the Minister for Immigration and
Citizenship be required to respond within 15 sitting days.
The Minister’s response should address each of the
Commonwealth Ombudsman’s recommendations and provide reasons why that
recommendation is accepted, rejected, or no longer applicable.
Recommendation 12
The Committee recommends that, as a priority, the Australian
Government introduce amendments to the Migration Act 1958 to enshrine in
legislation the reforms to immigration detention policy announced by the
Minister for Immigration and Citizenship.
The Committee also recommends that, as a priority, the
Migration Regulations and guidelines are amended to reflect these reforms.
Recommendation 13
The Committee recommends that, provided a person is not
determined to be a significant and ongoing unacceptable risk to the Australian
community, the Australian Government introduce a maximum time limit of twelve
months for a person to remain in immigration detention.
The Committee recommends that, for any person not determined
to be a significant and ongoing unacceptable risk at the expiry of twelve
months in immigration detention, a bridging visa is conferred that will enable
their release into the community.
Where appropriate, release could be granted with reporting
requirements or other conditions, allowing the Department of Immigration and
Citizenship to work towards case resolution.
Recommendation 14
The Committee recommends that, for any person who after twelve
months in detention is determined to be a significant and ongoing unacceptable
risk to the Australian community, the Australian Government amend the Migration
Act 1958 to give that person the right to have the decision reviewed by an
independent tribunal and subsequently have the right to judicial review.
5 Removals and detention charges
Recommendation 15
The Committee recommends that where enforced removal from
Australia is imminent, the Department of Immigration and Citizenship provide
prior notification of seven days to the person in detention and to the legal
representative or advocate of that person.
Recommendation 16
The Committee recommends that the Australian Government
consult with professionals and advocacy groups in the immigration detention
field to improve guidelines for the process of removal of persons from
Australia. The guidelines should give particular focus to:
n greater options for
voluntary removal from immigration detention
n increased liaison
with a detainee’s legal representative or advocate
n counselling for the
detainee to assist with repatriation
n a pre-removal risk
assessment that includes factors such as mental health, protection needs and
health requirements
n appropriate
procedures for enforced removals that minimise trauma
n adequate training and
counselling for officers involved in enforced removals
n appropriate
independent oversight at the time of enforced removals, and
n criteria for the use
of escorting officers for repatriation travel.
Recommendation 17
The Committee recommends that the Australian Government
instigate mechanisms for monitoring and follow-up of persons who have claimed
asylum and subsequently been removed from Australia.
Recommendation 18
The Committee recommends that, as a priority, the Australian
Government introduce legislation to repeal the liability of immigration
detention costs.
The Committee further recommends that the Minister for Finance
and Deregulation make the determination to waive existing detention debts for
all current and former detainees, effective immediately, and that all
reasonable efforts be made to advise existing debtors of this decision.