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

 

Chair	Mr Michael Danby MP
Deputy Chair	Hon Danna Vale MP
Members	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

 

Committee secretariat

 

Secretary	Dr Anna Dacre
Inquiry Secretary	Ms Anna Engwerda-Smith
Senior Research Officer	Mr Steffan Tissa
Office Manager	Ms Melita Caulfield

 

Terms of reference

 

The Joint Standing Committee on Migration is inquiring into immigration detention in Australia. The Committee will examine:

n  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

 

AHRC	Australian Human Rights Commission
AIDS	Acquired Immune Deficiency Syndrome
ASIO	Australian Security Intelligence Organisation
ASRC	Asylum Seeker Resource Centre
DeHAG	Detention Health Advisory Group
DIAC	Department of Immigration and Citizenship
DOHA	Department of Health and Ageing
GSL	Global Solutions Limited
FASSTT	Forum of Australian Services for Survivors of Torture and Trauma
HIV	Human Immunodeficiency Virus
IDAG	Immigration Detention Advisory Group
IGIS	Inspector-General of Intelligence and Security
IOM	International Organisation for Migration
MAL	Movement Alert List
MOC	Medical Officer of the Commonwealth
MSI	Migration Series Instructions
MRT	Migration Review Tribunal
PAM	Procedures Advice Manual
RILC	Refugee and Immigration Legal Centre
RRT	Refugee Review Tribunal
SCALES	Southern Communities Advocacy Legal and Education Service
TB	Tuberculosis
UNHCR	United Nations High Commissioner for Refugees

 

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.