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Footnotes
Chapter 1 Introduction
[1]
Department of Immigration and Citizenship website, ‘Unauthorised arrivals
by land and sea’, fact sheets 74 & 74a, viewed on 1 November 2008 at web.archive.org/web/ 20030621215427/http://www.immi. gov.au /facts/ 74unauthorised.htm
web.archive.org /web/20030621215037/ www.immi.gov.au/facts/74a_
boatarrivals.htm.
[2]
United Nations High Commissioner for Refugees, Asylum levels and
trends in industrialised countries, 2004 (2005), p 8.
[3]
United Nations High Commissioner for Refugees, Asylum levels and
trends in industrialised countries, 2007 (2008), p 12.
[4]
Senator the Hon C Evans, Minister for Immigration and Citizenship,
‘Unauthorised boat arrivals arrive on Christmas Island’, media release, 2 October 2008.
[5]
These trends were attributed to more restrictive asylum policies and
border control measures being introduced in European industrialised nations, as
well as improved security and improved living conditions in some of the major
source countries of asylum-seekers. See Chapter 5 ‘Asylum and refugees status
determination’, 2006 United Nations High Commissioner for Refugees statistical
yearbook, p 45.
[6]
United Nations High Commissioner for Refugees, Asylum levels and
trends in industrialised countries, 2007 (2008), p 3.
[7]
Department of Immigration and Citizenship website, Immigration
detention statistics summary as at 7 November 2008, viewed on 26 November 2008 at http://www.immi.gov.au/managing-australias-borders/detention/facilities/
statistics/index.htm..
[8]
As at 21 November 2008, there had been three unauthorised boat arrivals
in 2008, on 30 September, 6 October and 20 November.
[9]
Department of Immigration and Citizenship, submission 129, p 9.
[10]
Department of Immigration and Citizenship, supplementary submission 129d, p
2.
[11]
Department of Immigration and Citizenship website, Immigration detention
statistics summary as at 24 October 2008, viewed on 7 November 2008 at http://www.immi.gov.au/managing-australias-borders/detention/facilities/
statistics/index.htm.
[12]
Senator the Hon C Evans, Minister for Immigration and Citizenship,
‘Progress made in long-term immigration detention cases, media release, 24 September 2008.
[13]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University,
29 July 2008.
Chapter 2 Criteria for release – health, identity and security checks - Detention for the purposes of security checks
[1]
Detention for the purposes of the Act can include a number of forms of
detention including immigration detention centres, immigration residential
housing, transit accommodation and community detention arrangements. A
description of these different forms of detention is provided at Appendix E.
[2]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 8.
[3]
The exception being for New Zealand citizens who hold a valid passport
under section 42(2A)(a) of the Migration Act 1958.
[4]
See Appendix E for an outline of the different types of immigration detention.
[5]
Under section 5 of the Migration Act, a ‘substantive visa’ is any type of
visa other than a bridging visa, a criminal justice visa or an enforcement
visa.
[6]
Migration Act 1958, section 196(3).
[7]
The Commonwealth Ombudsman, Administration of detention debt waiver
and write-off (2008), p 10. With regard to court decisions, the
Commonwealth Ombudsman’s report refers to three cases in particular, Srey,
Uddin and Vean.
[8]
Department of Immigration and Citizenship, correspondence, 24 November 2008.
[9]
Department of Immigration and Citizenship, correspondence, 27 November 2008.
[10]
Department of Immigration and Citizenship, supplementary submission 129f, p
15.
[11]
See Appendix E for further information on types of detention currently used
in Australia.
[12]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 9.
[13]
Department of Immigration and Citizenship, Annual report 2007-08
(2008), p 125. For a historical overview of detention numbers by arrival type,
see Appendix C.
[14]
Department of Immigration and Citizenship, Detention health framework
(2007), pp 56-57; Department of Immigration and Citizenship, ‘Changes in mental
health screening for detainees’, media release, 11 September 2008.
[15]
Department of Immigration and Citizenship website, Fact Sheet 22 – The
health requirement (2007), viewed on 31 October at http://www.immi.gov.au/media/fact-sheets/
22health.htm. HIV status does not necessarily impact upon grant of a visa.
[16]
Department of Immigration and Citizenship, Detention health framework
(2007), p 43.
[17]
Department of Immigration and Citizenship, Detention health framework
(2007), p 45; King K and Vodick P, ‘Screening for conditions of public
health importance in people arriving in Australia by boat without authority’, Medical
journal of Australia (2001), vol 175, pp 600-02; Department of
Immigration and Multicultural Affairs, ‘Health concerns over boat arrivals’,
media release, 21 August 2001.
[18]
World Health Organization, Global tuberculosis control 2008:
Surveillance, planning, financing (2008), p 278.
[19]
Department of Immigration and Citizenship, Migration Regulations 1.03,
Public interest criteria 4005.
[20]
Metcalfe A, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 24.
[22]
Quarantine Proclamation 1998 (as amended), section 21.
[23]
Senanayake S and Ferson M, ‘Detention for tuberculosis: public health and
the law’, Medical Journal of Australia (2004), vol 180, no 11, p 575.
[24]
Senanayake S and Ferson M, ‘Detention for tuberculosis: public health and
the law’, Medical Journal of Australia (2004), vol 180, no 11, p 573.
[25]
Australian National Audit Office, Audit Report No 37 2006–07:
Administration of the Health Requirement of the Migration Act 1958 (2007),
p 111.
[26]
Australian National Audit Office, Audit report 2006–07: Administration
of the Health Requirement of the Migration Act 1958 (2007), pp 19, 30.
[27]
Australian National Audit Office, Audit Report No 37 2006–07:
Administration of the Health Requirement of the Migration Act 1958 (2007), p
59.
[28]
Department of Immigration and Citizenship, correspondence, 28 November 2008.
[29]
Minas H, Detention Health Advisory Group, Transcript of evidence, 11 September 2008, p 40.
[30]
Human Rights Law Resource Centre, submission 117, p 4; Refugee and
Immigration Legal Centre, submission 115, p 3; Asylum Seeker Resource Centre, Transcript
of evidence, 24 October 2008, p 66.
[31]
Manne D, Refugee and Immigration Legal Centre, Transcript of evidence,
11 September 2008, p 20.
[32]
Human Rights Law Resource Centre, submission 117, p 14.
[33]
Office of the United Nations High Commissioner for Refugees,
submission 133, p 10.
[34]
Office of the United Nations High Commissioner for Refugees,
submission 133, p 10.
[35]
Towle R, Office of the United Nations High Commissioner on Refugees, Transcript
of evidence, 15 October 2008, p 2.
[36]
Casey D, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 23.
[37]
Department of Immigration and Citizenship, Detention health framework
(2007), pp 56-57; Department of Immigration and Citizenship, ‘Changes in mental
health screening for detainees’, media release, 11 September 2008.
[38]
GSL refers to staff of Global Solutions Limited, the contracted detention
services provider for Australian immigration detention centres.
[39]
Metcalfe A, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, pp 23-24.
[40]
Department of Immigration and Citizenship, Detention health framework
(2007), p 47.
[41]
Office of the United Nations High Commissioner on Refugees,
submission 133, p 1.
[42]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 6.
[43]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 9. In the Minister’s speech this reference to unresolved
identity is linked with ‘unacceptable risk’ to the community.
[44]
Department of Immigration and Citizenship, Identity matters: Strategic
plan for identity management in DIAC 2007-2010 (2007), p 4.
[45]
Department of Immigration and Citizenship, Identity matters: Strategic
plan for identity management in DIAC 2007-2010 (2007), pp 7-8.
[46]
Department of Immigration and Citizenship, Identity matters: Strategic
plan for identity management in DIAC 2007-2010 (2007), p 8.
[47]
Under the terms of settlement, Ms Rau received $2.6 million in compensation. In addition, the Commonwealth also paid Ms Rau’s legal costs. Ms Alvarez (Solon) received $4.5 million in compensation.
[48]
Department of Immigration and Citizenship, supplementary submission 129c, p
3.
[49]
Department of Immigration and Citizenship, correspondence, 27 November 2008.
[50]
Bicket R, Department of Immigration and Citizenship, Senate Hansard,
Supplementary Budget Estimates, Legal and Constitutional Affairs Committee, 21 October 2008, p 24.
[51]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, Supplementary Budget Estimates, Legal and Constitutional Affairs
Committee, 21 October 2008, p 42.
[52]
Department of Immigration and Citizenship, Annual report 2006-07 (2007),
p 111.
[53]
Department of Immigration and Citizenship, Procedures Advice Manual (PAM)
3, Establishing identity in the field and in detention, para 4.0.
[54]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 3.
[55]
Copeland A, Southern Communities Advocacy Legal and Education Services
(SCALES) Community Legal Centre, Transcript of evidence, 9 October 2008, pp 2-3.
[56]
Coffey G, Transcript of evidence, 11 September 2008, p 83.
[57]
Manne D, Refugee and Immigration Legal Centre, Transcript of evidence,
11 September 2008, p 20.
[58]
Burnside J, Liberty Victoria, Transcript of evidence, 11 September 2008, p 53.
[59]
Burnside J, Liberty Victoria, Transcript of evidence, 11 September 2008, p 55.
[60]
Taylor J, Law Institute of Victoria, Transcript of evidence, 11 September 2008, p 54.
[61]
Department of Immigration and Citizenship, Identity matters: Strategic
plan for identity management in DIAC 2007-2010 (2007), pp 7, 12.
[62]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, pp 5-6. Further background on this issue is provided in Report
into referred immigration cases: Detention process issues (2007), pp 8-10.
[63]
Office of the United Nations High Commissioner on Refugees Geneva, Revised
guidelines on applicable criteria and standards relating to the detention of
asylum seekers (1999), p 4.
[64]
Office of the United Nations High Commissioner on Refugees Geneva, Revised
guidelines on applicable criteria and standards relating to the detention of
asylum seekers (1999), p 4.
[65]
Towle R, Office of the United Nations High Commissioner on Refugees, Transcript
of evidence, 15 October 2008, pp 6-7.
[66]
Australian Security Intelligence Organisation Act 1979, section 4.
[67]
Australian Security Intelligence Organisation, Report to the Parliament
2007-08 (2008), p 18.
[68]
Australian Security Intelligence Organisation, submission 139, p 5.
[69]
Australian Security Intelligence Organisation, submission 139, p 4.
[70]
Australian Security Intelligence Organisation, submission 139, p 10.
[71]
Australian Security Intelligence Organisation, submission 139, p 10.
[72]
Australian Security Intelligence Organisation, submission 139, p 7.
[73]
Hodges J, Immigration Detention Advisory Group, Transcript of evidence,
3 September 2008, p 9.
[74]
Refugee Council of Australia, submission 120, p 8.
[75]
Knight J, Law Institute of Victoria, Transcript of evidence, 11 September 2008, p 53.
[76]
Coffey G, Transcript of evidence, 11 September 2008, p 79.
[77]
Biok E, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, pp 18-19.
[78]
Biok E, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, p 19.
[79]
Biok E, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, pp 18-19.
[80]
Inspector-General of Intelligence and Security Act 1986, section 8.
[81]
Inspector-General of Intelligence and Security, Annual report 2007-08
(2008), p 8.
[82]
Castan Centre for Human Rights Law, submission 97, p 7; see further
references below.
[83]
Briskman L, Centre for Human Rights Education, Curtin University, Transcript
of evidence, 9 October 2008, p 23.
[84]
Australian Security Intelligence Organisation, Report to the Parliament
2007-08 (2008), p 19.
[85]
Australian Security Intelligence Organisation (ASIO), Answers to questions
taken on notice at an Estimates hearing on 25 May 2006, Senate Legal and Constitutional Legislation Committee, question no 120.
[86]
Joint Standing Committee on Foreign Affairs, Defence and Trade, Human
Rights Subcommittee, Inquiry into aspects of HREOC’s annual report 2000-01
concerning immigration detention centres; Committee Hansard, 22
August 2002, pp 36, 39.
[87]
Parkin v O'Sullivan [2007] FCA 1647 (2 November 2007).
[88]
Hoffman S, supplementary submission 59a, p 2.
[89]
Gauthier K, A Just Australia, Transcript of evidence, 24 October 2008, p 13.
[90]
Forum of Australian Survivors of Torture and Trauma, submission 115, p 9.
[91]
Georgiannis B, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, p 19.
[92]
Georgiannis B, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, p 19.
[93]
Karapanagiotidis K, Asylum Seeker Resource Centre, Transcript of
evidence, 24 October 2008, p 67.
Chapter 3 Criteria for release – unacceptable risk and repeated non-compliance
[1]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University,
29 July 2008, p 6.
[2]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University,
29 July 2008, p 9.
[3]
Metcalfe A, Department of Immigration and Citizenship, Senate Hansard,
Supplementary Budget Estimates, Legal and Constitutional Affairs Committee,
21 October 2008, p 93.
[4]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 7.
[5]
Senator the Hon C Evans, Minister for Immigration and Citizenship, in
Media Monitors, ‘Senator Evans discusses a number of reforms to Australia’s
immigration detention system’, doorstop interview transcript, 29 July 2008, pp
2-3.
[6]
Department of Immigration and Citizenship, Procedures Advice Manual 3
(PAM 3), Section 501 - The character test, visa refusal & visa
cancellation, para 66.
[7]
Commonwealth Ombudsman, Administration of s 501 of the Migration Act
1958 as it applies to long-term residents (2006), p 9.
[8]
Senator the Hon C Evans, Minister for Immigration and Citizenship,
Answers to questions on notice, Question no 423, Senate Hansard, 17 June 2008, p 2627.
[9]
Commonwealth Ombudsman, submission 126, p 6.
[10]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 3.
[11]
Briskman L, Centre for Human Rights Education, Curtin University, Transcript
of evidence, 9 October 2008, p 24.
[12]
Taylor J, Law Institute of Victoria, Transcript of evidence, 11 September 2008, p 57.
[13]
Copeland A, Southern Communities Advocacy Legal and Education Services Community
Legal Centre, Transcript of evidence, 9 October 2008, p 4.
[14]
Human Rights Law Resource Centre, submission 117, p 15.
[15]
Human Rights Law Resource Centre, submission 117, p 15.
[16]
Gauthier K, A Just Australia, Transcript of evidence, 7 May 2008, pp 15-16.
[17]
Detention Health Advisory Group, submission 101, p 3.
[18]
Biok E, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, p 27.
[19]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 7.
[20]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 6.
[21]
Department of Immigration and Citizenship website, Immigration detention
statistics summary viewed on 26 November 2008 at http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20081107.pdf.
[22]
Department of Immigration and Citizenship, Annual report 2006-07 (2007),
p 118. The data provided does not explain whether the remaining cohort was
taken into immigration detention. Some of those located may have only received
a warning about their visa conditions or have been located as overstayers on
the event of their departure from Australia, in which case no further action
would have been taken.
[23]
Law Institute of Victoria, Liberty Victoria and the Justice Project,
submission 127, pp 10-11.
[24]
Castan Centre for Human Rights Law, submission 97, pp 22-23.
[25]
Correll B, Department of Immigration and Citizenship, Senate Hansard,
Supplementary Budget Estimates, Legal and Constitutional Affairs Committee,
21 October 2008, p 108.
[26]
Department of Immigration and Citizenship, supplementary submission 129d, p
6.
[27]
Department of Immigration and Citizenship, supplementary submission 129a, p
1.
[28]
Department of Immigration and Citizenship, supplementary submission 129a, p
4. Of the remaining three, one was found to be owed protection.
[29]
Office of the United Nations High Commissioner on Refugees, submission 133,
p 1.
[30]
The principles can be equally applied, but should the mechanism for release
be a bridging visa, this will require policy development and legislative
amendment by the Government, because as noted in Appendix F, offshore persons
cannot apply for a bridging visa except where the Minister gives them special
permission to do.
Chapter 4 Review mechanisms for ongoing detention
[1]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 12.
[2]
O’Connell L, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 4.
[3]
Department of Immigration and Citizenship, supplementary submission 129f,
p 10.
[4]
Department of Immigration and Citizenship, supplementary submission 129f,
p 10.
[5]
Department of Immigration and Citizenship, Annual report 2007-08 (2008),
p 121.
[6]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 11.
[7]
Senator the Hon C Evans, Minister for Immigration and Citizenship,
Senate Hansard, Supplementary Budget Estimates, Legal and Constitutional
Affairs Committee, 21 October 2008, p 93.
[8]
Senator the Hon C Evans, Minister for Immigration and Citizenship, in 7.30
Report, ABC Television, transcript, 29 July 2008.
[9]
Department of Immigration and Citizenship, supplementary submission 129f,
p 11.
[10]
Manne D, Refugee and Immigration Legal Centre, Transcript of evidence,
11 September 2008, p 23.
[11]
A Just Australia, submission 89, p 9.
[12]
Kenny M, Southern Communities Advocacy Legal and Education Services Community
Legal Centre, Transcript of evidence, 9 October 2008, p 14.
[13]
Refugee and Immigration Legal Centre, submission 130, pp 5-6.
[14]
Immigration Detention Advisory Group, submission 62, p 6.
[15]
See Lovitt P, submission 3, pp 16-18, for an example from 2008.
[16]
Coffey G, Transcript of evidence, 11 September 2008, p 81.
[17]
Refugee and Immigration Legal Centre, submission 130, p 20.
[18]
Manne D, Refugee and Immigration Legal Centre, Transcript of evidence,
11 September 2008, p 16.
[19]
Nicholls G, ‘Immigration’s culture war’, Inside story, 2 November 2008, viewed on 5 November 2008 at http://inside.org.au/immigration-culture-war/.
[20]
Office of the United Nations High Commissioner on Refugees Geneva, Revised
guidelines on applicable criteria and standards relating to the detention of
asylum seekers (1999), p 6.
[21]
Towle R, Office of the United Nations High Commissioner on Refugees, Transcript
of evidence, 15 October 2008, p 3.
[22]
Gauthier K, A Just Australia, Transcript of evidence, 24 October 2008, p 12.
[23]
Department of Immigration and Citizenship, Annual report 2007-08 (2008),
p 121.
[24]
Commonwealth Ombudsman website, viewed on 4 November 2008 at http://www.comb.gov.au/commonwealth/publish.nsf/Content/complaints_ immigration.
[25]
Commonwealth Ombudsman, Annual report 2007-08 (2008), p 90.
[26]
Ombudsman Act 1976, section 5(1)(b).
[28]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 12.
[29]
O’Connell L, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 4.
[30]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 4.
[31]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 4.
[32]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 6.
[33]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 4.
[34]
Gauthier K, A Just Australia, Transcript of evidence, 24 October
2008, p 12; Australian Council of Heads of Schools of Social Work, submission
119, p 7; Law Institute of Victoria, Liberty Victoria and The
Justice Project, submission 127, p 30; Manne D, Refugee and Immigration
Legal Centre, Transcript of evidence, 11 September 2008, p 23;
Refugee Council of Australia, submission 120, p 10; Australian Human Rights
Commission, Transcript of evidence, 24 October 2008, p 6.
[35]
Parliamentary Library, Migration Amendment (Detention Arrangements) Bill
2005 (2005), Bills digest no 190, 2004-05, Prince P, p 9.
[36]
Uniting Church of Australia, submission 69, p 6.
[37]
Department of Immigration and Citizenship, supplementary submission 129f, p
3.
[38]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 12.
[39]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 12.
[40]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 12.
[41]
Commonwealth Ombudsman, supplementary submission 126a, p 2.
[42]
Commonwealth Ombudsman, supplementary submission 126a, p 2.
[43]
Refugee and Immigration Legal Centre, submission 130, p 16.
[44]
Gauthier K, Transcript of evidence, 24 October 2008, p 12.
[45]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 5.
[46]
Castan Centre for Human Rights Law, submission 97, p 9.
[47]
Commonwealth Ombudsman, supplementary submission 126a, p 2.
[48]
Senator the Hon C Evans, Minister for Immigration and Citizenship, in Media
Monitors, ‘Senator Evans discusses a number of reforms to Australia’s immigration
detention system’, doorstop interview transcript, 29 July 2008, p 10.
[49]
Senator the Hon C Evans, Minister for Immigration and Citizenship,
Senate Hansard, Supplementary Budget Estimates, Legal and Constitutional
Affairs Committee, 21 October 2008, p 109.
[50]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, Supplementary Budget Estimates, Legal and Constitutional Affairs
Committee, 21 October 2008, p 106.
[51]
Commonwealth Ombudsman, Report for tabling in Parliament by the Commonwealth
and Immigration Ombudsman under section 4860 of the Migration Act 1958,
personal identifier 480/08.
[52]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Response
to Ombudsman’s reports received under section 4860 of the Migration Act 1958 –
Statement to Parliament, 14 October 2008.
[53]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘Unauthorised
boat arrivals intercepted off Ashmore’, media release, 30 September 2008.
[54]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘People
smuggling vessel intercepted’, media release, 7 October 2008.
[55]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘Group
at sea rescued by Navy’, media release, 20 November 2008.
[56]
Towle R, Office of the United Nations High Commissioner for Refugees, Transcript
of evidence, 15 October 2008, p 1. See also Dimasi M, ‘The Christmas Island
challenge’, Inside story, 5 November 2008, viewed on 5 November at http://inside.org.au/the-christmas-island-challenge/.
[57]
Saulwick A, GetUp!, Transcript of evidence, 24 October 2008, p 48.
[58]
Human Rights Law Resource Centre, submission 117, p 10.
[59]
Briskman L, Centre for Human Rights Education, Curtin University, Transcript
of evidence, 9 October 2008, p 19.
[60]
Gauthier K, A Just Australia, Transcript of evidence, 24 October 2008, p 11.
[61]
Innes G, Australian Human Rights Commission, Transcript of evidence,
24 October 2008, p 8.
[62]
Innes G, Australian Human Rights Commission, Transcript of evidence,
24 October 2008, p 2.
[63]
Refugee Immigration and Legal Centre, submission 130, p 9.
[64]
Biok E, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, p 17.
[65]
Castan Centre for Human Rights Law, submission 97, p 14.
[66]
Gauthier K, A Just Australia, Transcript of evidence, 24 October 2008, pp 14-15.
[67]
Saulwick A, GetUp!, Transcript of evidence, 24 October 2008, p 49.
[68]
Administrative Review Council, The scope of judicial review, Report
to the Attorney-General, April 2006, report no 47, p 8.
[69]
Parliamentary Library, ‘Judicial review of immigration detention’, client
memorandum, Karlsen E, 25 October 2008, p 1. As per McHugh and Gummow JJ in
Re Minister for Immigration and Multicultural Affairs; Ex parte
Applicant S20/2002 (2003) I98 ALR 59.
[70]
Parliamentary Library, ‘Judicial review of immigration detention’ (2008),
client memorandum, Karlsen E, 25 October 2008, p 2.
[71]
United Nations Human Rights Committee, ‘Views: Communication No.
1324/2004’, CCPR/C/88/D/1324/2004, 13 November 2006, Attorney-General website, viewed on 24 October 2008 at http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(1E76C1D5D1A37992F0B0C1C4DB87942E)~Shafiq+-+1324_2004+-+HRC+Views.pdf/$file/Shafiq+-+1324_2004+-+HRC+Views.pdf.
[72]
Thom G, Amnesty International Australia, Transcript of evidence, 7 May 2008, p 28.
[73]
Al-Kateb v. Godwin [2004] 219 CLR 562.
[74]
Parliamentary Library, ‘Judicial review of immigration detention’, client
memorandum, Karlsen E, 25 October 2008, p 7.
[75]
Burnside J, Liberty Victoria, Transcript of evidence, 11 September 2008, pp 48-49.
[76]
Burnside J, Liberty Victoria, Transcript of evidence, 11 September 2008, p 48.
[77]
Manne D, Refugee and Immigration Legal Centre, Transcript of evidence,
11 September 2008, p 24.
[78]
Gauthier K, A Just Australia, Transcript of evidence, 7 May 2008, p 29.
[79]
A Just Australia, submission 89, p 12.
[80]
Copeland A, Southern Communities Advocacy Legal and Education Services
Community Legal Centre, Transcript of evidence, 9 October 2008, p 2.
[81]
Kenny M, Southern Communities Advocacy Legal and Education Services
Community Legal Centre, Transcript of evidence, 9 October 2008, p 14.
[82]
Gauthier K, A Just Australia, Transcript of evidence, 24 October 2008, p 15.
[83]
Department of Immigration and Citizenship, Annual report 2007-08 (2008),
p 33.
[84]
Department of Immigration and Citizenship, supplementary submission, 129d,
p 6.
[85]
Department of Immigration and Citizenship website, viewed on 11 November 2008 at http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20081031.pdf.
[86]
Department of Immigration and Citizenship, supplementary submission 129b, p
1.
[87]
Law Institute of Victoria, Liberty Victoria and the Justice Project,
submission 127, pp 17-18.
[88]
Law Institute of Victoria, Liberty Victoria and the Justice Project,
submission 127, p 12.
[89]
Taylor J, Law Institute of Victoria, Transcript of evidence, 11 September 2008, p 52; see Al-Kateb v Godwin, [2004] HCA 37; (2004) 208 ALR 124; (2004) 78 ALJR 1099 (‘Al-Kateb’).
[90]
Some relevant clinical studies that have considered the longer term impact
of immigration detention on mental health are Steel Z et al, ‘Impact of
immigration detention and temporary protection on the mental health of
refugees’, The British
journal of psychiatry (2006) vol 188, pp 58-64; Steel Z et al, ‘Psychiatric
status of asylum seeker families held for a protracted period in a remote
detention centre in Australia’, Australian and New Zealand journal of public
health (2004) vol 28, pp 23-32; Sultan A and O'Sullivan K, ‘Psychological disturbances
in asylum seekers held in long-term detention: a participant-observer account’,
Medical journal of Australia (2001) vol 175, pp 593 -596.
[91]
Poorvadi M, Transcript of evidence, 7 May 2008, p 8.
[92]
Prince R, submission 113, p 7.
[93]
Commonwealth Ombudsman, submission 126, pp 6-8.
[94]
McMillan J, Commonwealth Ombudsman, Transcript of evidence, 17 September 2008, p 2.
[95]
Commonwealth Ombudsman, submission 126, p 16.
[96]
Senator the Hon C Evans, Minister for Immigration and Citizenship, in Media
Monitors, ‘Senator Evans discusses a number of reforms to Australia’s
immigration detention system’, doorstop interview transcript, 29 July 2008, p
1.
[97]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 17.
[98]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 13.
[99]
Masri G, Office of the Commonwealth Ombudsman, Transcript of evidence,
17 September 2008, pp 6-7.
[100]
Smit J, Project Safecom, Transcript of evidence, 9 October 2008, p 34.
[101]
The Government has indicated the introduction of complementary protection
legislation next year which may provide a framework for resolving difficult
cases in which protection claims lie outside those specified by the Refugee
Convention. Statelessness is one issue that will be examined within this complementary
protection framework.
[102]
Senator the Hon C Evans, Minister for Immigration and Citizenship, ‘New
directions in detention’, speech delivered at Australian National University, 29 July 2008, p 8.
Chapter 5 Removals and detention charges
[1]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, 19 June 2008, p 2885.
[2]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, Supplementary Budget Estimates, Legal and Constitutional Affairs
Committee, 21 October 2008, p 114.
[3]
Department of Immigration and Citizenship, Annual report 2007-08
(2008), p 123.
[4]
Department of Immigration and Citizenship, supplementary submission 129f,
p 25.
[5]
Migration Act 1958, ss 198, 200.
[6]
Migration Act 1958, s 5(1).
[7]
Migration Series Instruction 376 (MSI 376), Implementation of enforced
departure, para 2.1.1.
[8]
O’Connell L, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 7.
[9]
Department of Immigration and Citizenship, Annual report 2006-07 (2007),
p 121.
[10]
O’Connell L, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 18.
[11]
O’Connell L, Department of Immigration and Citizenship, Senate Hansard,
Supplementary Budget Estimates, Legal and Constitutional Affairs Committee, 21 October 2008, p 22.
[12]
O’Connell L, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 7.
[13]
O’Connell L, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 7.
[14]
Department of Immigration and Citizenship, Procedures
Advice Manual 3 (PAM 3), Compliance - Removal - Removal from Australia, para
10.
[15]
Coffey G, Transcript of evidence, 11 September 2008, p 82.
[16]
Phelan L, Mercy Refugee Service, Transcript of evidence, 7 May 2008, p 32.
[17]
Phelan L, Mercy Refugee Service, Transcript of evidence, 7 May 2008, pp 11, 32.
[18]
Phelan L, Mercy Refugee Service, Transcript of evidence, 7 May 2008, pp 11, 32.
[19]
The obligation for notification by the Department of Immigration and
Citizenship is set out under s 66(1) of the Migration Act 1958 which
sets out the terms of notification of a decision and s 494B, ‘Methods by which
the Minister is to provide documents to a person’. Further instructions for
DIAC delegates can be found in Procedures Advice Manual 3 (PAM 3) - Notification
- Notification requirements, paras 33-36.
[20]
Psihogios-Billington M, Asylum Seeker Resource Centre, Transcript of
evidence, 24 October 2008, pp 62-63.
[21]
Department of Immigration and Citizenship, Procedures Advice Manual (PAM)
3, Compliance – Removal - Removal from Australia, para 35.
[22]
Casey D, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 7.
[23]
Coffey G, Transcript of evidence, 11 September 2008, pp 86-87.
[24]
Metcalfe A, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 8.
[25]
Casey D, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 7.
[26]
Metcalfe A, Department of Immigration and Citizenship, Transcript of
evidence, 24 September 2008, p 8.
[27]
Department of Immigration and Citizenship, supplementary submission 129f, p
35.
[28]
Department of Immigration and Citizenship, Procedures Advice Manual 3 (PAM 3),
Compliance- Removal - Removal from Australia, para 32.2.
[29]
Psihogios-Billington M, Asylum Seeker Resource Centre, Transcript of
evidence, 24 October 2008, p 64.
[30]
Jaivin L, Transcript of evidence, 7 May 2008, p 29.
[31]
Psihogios-Billington M, Asylum Seeker Resource Centre, Transcript of
evidence, 24 October 2008, p 63.
[32]
Department of Immigration and Citizenship, supplementary submission, 129f,
p 35.
[33]
Gauthier K, A Just Australia, Transcript of evidence, 7 May 2008, p 32.
[34]
Clement N, Australian Red Cross, Transcript of evidence, 7 May 2008, pp 32-33.
[35]
Clement N, Australian Red Cross, Transcript of evidence, 7 May 2008, p 9.
[36]
The obligation for notification by the Department of Immigration and
Citizenship is set out under s 66(1) of the Migration Act 1958 which
sets out the terms of Notification of decision and section 494B, Methods by
which the Minister is to provide documents to a person. Further instructions
for DIAC delegates can be found in Procedures Advice Manual 3 (PAM 3) Notification
- Notification requirements, paras 33-36.
[37]
Australian Broadcasting Corporation, Four Corners, ‘The guards’ story’,
viewed on 15 September 2008.
[38]
Migration Act 1958, s 209.
[39]
Dastyari, A, The liability of immigration detainees for the cost of
their detention (2007), Castan Centre for Human Rights Law, p 6.
[40]
Migration Reform Bill 1992, Explanatory Memorandum, 59, p 11.
[41]
Kamand S et al, The immigration kit (2008), 8th ed, Federation Press, p 166.
[42]
Migration Act 1958, s 211.
[43]
Department of Immigration and Citizenship, Procedures Advice Manual 3 (PAM
3), Liability to pay detention and removal costs, para 16.
[44] Refugee
Action Committee website, viewed on 6 November 2008 at http://www.refugeeaction.org/rac/newsletter.html.
[45]
The Forum of Australian Services for Survivors of Torture and Trauma,
submission 115, p 22.
[46]
Migration Act 1958, s 215.
[47]
Mitchell K & Dastyari A, ‘Paying their debt to society: Billing asylum
seekers for their time in detention’, Castan Centre for Human Rights Law
Newsletter, April
2007, p 13.
[48]
The Forum of Australian Services for Survivors of Torture and Trauma,
submission 115, p 22.
[49]
Department of Immigration and Citizenship,
supplementary submission
129c, p 2.
[50]
Department of Immigration and Citizenship, Questions taken on notice,
Budget Estimates Hearing, Senate Hansard, 21-22 May 2007.
[51]
Migration Series Instructions 377: Visa applicants with debts to
the Commonwealth, para 4.0.7.
[52] Migration
Series Instructions 377: Visa applicants with debts to the
Commonwealth, para 4.0.7.
[53] Department
of Finance and Deregulation website, viewed 3 November 2008 at http://www.finance.gov.au/financial-framework/discretionary-compensation/debt-waiver.html.
[54] Law
Institute of Victoria, Liberty Victoria and The Justice Project, submission 127,
p 20.
[55]
Senator the Hon C Evans Minister for Immigration and Citizenship Senate
Hansard, 19 June 2008, p 2885.
[56]
Commonwealth Ombudsman, submission 126, p 16.
[57] Labor
for Refugees (NSW), submission 55, p 6.
[58] Office
of Multicultural Interests Western Australia, submission 106, p 22.
[59]
Law Institute of Victoria, Liberty Victoria and The Justice Project,
submission 127, p 21.
[60]
Manne D, Refugee and Immigration Legal Centre, Transcript of evidence,
11 September 2008, p 14.
[61] Thom G, Amnesty International Australia, Transcript of evidence, 7 May 2008, p 41.
[62]
Burnside J, Liberty Victoria, Transcript of evidence, 11 Septembe r 2008, p 49.
[63]
Dastyari, A, The liability of immigration detainees for the cost of
their detention (2007), Castan Centre for Human Rights Law, p 15.
[64] Office
of Multicultural Interests Western Australia, submission 106, p 22.
[65]
Refugee Action Committee website, viewed on 6 November 2008 at http://www.refugeeaction.org/rac/newsletter.html.
[66]
The Commonwealth Ombudsman, Administration of detention debt waiver and
write-off (2008), p 2.
[67] The
Forum of Australian Services for Survivors of Torture and Trauma, submission
115, p 22.
[68]
Dastyari, A, The liability of immigration detainees for the cost of
their detention (2007), Castan Centre for Human Rights Law, p 17.
[69]
Office of Multicultural Interests Western Australia, submission 106, p 22.
[70]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, 19 June 2008, p 2885.
[71] Labor
for Refugees (NSW), submission 55, p 6.
[72]
Georgiannis B, Legal Aid NSW, Transcript of evidence, 24 October 2008, p 23.
[73]
Commonwealth Ombudsman, submission 126, p 15.
[74]
Under the public interest criteria (PIC 4004) set out in schedule 4 to the
Migration Regulations, a person with a debt to the Commonwealth cannot be
granted many types of visas. In order to satisfy this criterion the person must
pay the debt in full, make arrangements for repayments or have the debt waived
by the Australian Government.
[75] Georgiannis B, Legal Aid New South Wales, Transcript of evidence, 24 October 2008, p 23.
[76]
The Movement Alert List, administered by
the Department of Immigration and Citizenship, is a computer database that
stores details about people and travel documents of immigration concern to
Australia. In addition, MAL is automatically checked when applications for
visas are made on behalf of travellers by travel agents/airlines using the
Department's Electronic Travel Authority System. Information obtained from
Department of Immigration and Citizenship website, viewed on 26 November 2008
at http://www.immi.gov.au/media/fact-sheets/77mal.htm.
[77] Edmund
Rice Centre, submission 53, p 3.
[78]
Mitchell K and Dastyari A, ‘Paying their debt to society: Billing asylum seekers
for their time in detention.’ Castan
Centre for Human Rights Law Newsletter,
April 2007, p 13.
[79]
The Forum of Australian Services for Survivors of Torture and Trauma,
submission 115, p 22.
[80]
Taylor J, Law Institute of Victoria, Transcript of evidence, 11 September 2008, p 60.
[81]
Commonwealth Ombudsman, submission 126, p 16.
[82]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, 19 June 2008, p 2885.
[83]
Senator the Hon C Evans, Minister for Immigration and Citizenship, Senate
Hansard, Supplementary Budget Estimates, Legal and Constitutional Affairs
Committee, 21 October 2008, p 114.
[84]
Senate Legal and Constitutional Affairs Committee, Administration and
operation of the Migration
Act 1958 (2006), Parliament of the Commonwealth of Australia, p 207.
Dissenting report by Mr Petro Georgiou MP, Senator Dr Alan Eggleston and Senator Sarah Hanson-Young
[1]
Paragraph 4.141.
[2]
Paragraph 4.142.
[3]
Coffey G and Thompson S, submission 128, pp 4-5.
[4]
Paragraph 4.6.
[5]
Paragraph 4.30.
[6]
Department of Immigration and Citizenship website, http://www.immi.gov.au/managing-australias-borders/detention/regulations/legislation-conventions.htm.
[7]
Article 9(1) provides that, ‘No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by
law’.
[8]
Article 9(4) of the ICCPR provides that, ‘Anyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful’.
[9]
Human Rights and Equal Opportunity Commission, submission 99, p 13.
[10]
Note that Article 9(4) of the ICCPR provides that a detained
person must be entitled to take proceedings before a court in order that the
court may decide without delay on the lawfulness of detention and
order release if the detention is not lawful. While the jurisprudence of the UN
Human Rights Committee (HRC) concerning the time before detention must be
reviewed relates primarily to Article 9(3), which requires that the lawfulness
of arrest on a criminal charge be promptly reviewed by a court or
tribunal, it may offer a good indication of the Committee’s approach to the
issue. In a General Comment on Article 9(3) the HRC has stated that ‘delays
must not exceed a few days.’ (General Comment No.8: Right to liberty and
security of persons (Art.9), 30/6/82, [2]). The European Court of Human Rights has considered there to be a breach of the analogous right to personal
freedom under Article 5 of the European Convention on Human Rights in
cases where the length of detention before a person was brought before a judge
was as short as 4 days and 6 hours: Brogan v United Kingdom, (1988) 11
EHRR 117.
[11]
Paragraph 4.143.
Appendix C: Overview of immigration detention population
[1]
Senator the Hon C Evans, Minster for Immigration and Citizenship,
‘Progress made in long-term immigration detention cases, media release, 24 September 2008.
[2]
See also Department of Immigration and Citizenship, supplementary submission
129, p 12.
[3]
Senator the Hon C Evans, Minister for Immigration and Citizenship,
‘Unauthorised boat arrivals arrive on Christmas Island’, media release, 2 October 2008.
[4]
Department of Immigration and Citizenship, submission 129, p 9.
[5]
As at 21 November 2008, there had been three unauthorised boat arrivals
in 2008, on 30 September, 6 October and 20 November.
[6]
Department of Immigration and Citizenship, submission 129, p 9.
[7]
Department of Immigration and Citizenship, supplementary submission 129d,
p 2.
[8]
Department of Immigration and Citizenship, Immigration detention statistics
summary, as at 7 November 2008, viewed on 26 November 2008 at http://www.immi.gov.au/ managing- australias-borders/detention/_pdf/immigration-detention-statistics-20081031.pdf.
[9]
Parliamentary Library, Part 1, ‘Australia and Refugees, 1901–2002: Annotated
Chronology Based on Official Sources: Summary’, Chronology No. 2 2002–03,
16 June 2003.
[10]
Hon P Costello MP, Treasurer, Budget Speech 2006 -07, delivered 9 May 2006; Department of Immigration and Citizenship, supplementary submission 129d, p 2.
[11]
Department of Immigration and Citizenship, Immigration detention
statistics summary, as at 7 November 2008, viewed on 26 November 2008 at http://www.immi.gov.au/ managing- australias-borders/detention/_pdf/immigration-detention-statistics-20081031.pdf.
Appendix E: Types of immigration detention
[1]
Department of Immigration and Citizenship, submission 129, pp 18-26.
[2]
Department of Immigration and Citizenship, Detention health framework-
a policy framework for health care for people in immigration detention
(2007), p 19.
[3]
Department of Immigration and Citizenship, Detention health framework-
a policy framework for health care for people in immigration detention
(2007), p 19.
[4]
Department of Immigration and Citizenship, submission 129, p 30.
[5]
Department of Immigration and Citizenship, submission 129, pp
19-20.
[6]
Department of Immigration and Citizenship, submission 129, p 19.
[7]
Department of Immigration and Citizenship, submission 129, p 25.
[8]
Department of Immigration and Citizenship, Immigration detention
statistics summary, as at 7 November 2008, viewed on 26 November 2008 at
http://www.immi.gov.au/ managing-
australias-borders/detention/_pdf/immigration-detention-statistics-20081031.pdf.
Appendix F: Bridging visas
[1]
Department of Immigration and Citizenship, supplementary submission 129f,
p 15.
[2]
Department of Immigration and Citizenship, Annual report 2007-08
(2008), p 8.
[3]
Kamand S et al, The immigration kit (2008), 8th ed, The
Federation Press, p 197; Phelan L, Mercy Refugee Service, Transcript of evidence,
7 May 2008, p 20.
[4]
Department of Immigration and Citizenship, supplementary submission 129d,
p 9.
[5]
The only venue for the grant of a bridging visa for offshore entry people
is under subsection 46A(2) of the Migration Act, whereby the Minister may
exercise the power to allow a valid application to be made if he/she considers
it to be in the public interest.
[6]
Taylor S, ‘Immigration detention reforms: A small gain in human rights’, Agenda
(2006), vol 13, no 1, pp 56.
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