Nicholas, Alexander --- "Protecting Refugees: Alternatives to A Policy of Mandatory Detention" [2002] AUJlHRights 6; (2002) 8(1) Australian Journal of Human Rights 69

Protecting refugees: alternatives to a policy of mandatory detention

Alexander W. Nicholas

Australians for Just Refugee Programs

The right to liberty is a fundamental right, recognised in all major human rights instruments,

both at global and regional levels. The right to seek asylum is, equally, recognised as a basic human right. The act of seeking asylum can therefore not be considered an offence or a crime. Consideration should be given to the fact that asylum-seekers may already have suffered some form of persecution or other hardship in their country of origin and should be protected against any form of harsh treatment.



As a general rule, asylum-seekers should not be detained (UNHCR 1996: 3).

When I began my internship with Amnesty International Australia I was appalled to discover that Australia is alone among Western countries in having mandatory non-reviewable detention of asylum seekers (McMaster 2001: 67). For all practical purposes detention has been unreviewable in the courts since 1992. A Parliamentary review on the detention practices of 19 countries in 1994 found that a majority of countries initially detained unauthorised arrivals, but that many countries then released detainees once their identity was established, usually with regular reporting conditions and after a surety had been paid. Countries with similar legal systems to Australia (Canada, the United Kingdom, the United States and New Zealand) do not apply mandatory detention (JSCM 1994). While asylum detention only affects a small fraction of those seeking asylum in Australia each year, it has the most serious implications for Australia's commitments under human rights standards that are recognised by 141 other countries. Arthur C. Helton (1993: 14), the director of the Refugee Project, Lawyers Committee for Human Rights in New York, argues that the automatic detention of aliens infringes basic obligations under the 1951 Convention and its amended 1967 Protocol Relating to the Status of Refugees. 'Detention as a migration deterrence device applied on a categorical basis can violate both treaty and customary international law prohibitions against prolonged arbitrary detention.' Helton stresses that although detention as a deterrent may be politically and publicly popular it is of uncertain effect.

Australia currently has an offshore refugee humanitarian program and an onshore refugee program with a combined intake of approximately 12,000 people per annum. The government insists on giving priority to those ‘languishing’ in refugee camps overseas. Their basis for such a priority is that those 4500 boat people arriving on our shores each year of late are cheating the system and avoiding the ‘queue'. The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) 1994 Annual Report stated that 'people were in countries where conditions are changing constantly and access is difficult for Australian migration officials'. DIMIA does not have a single Australian staff member stationed in Iran, and only acquired one in Iraq in 2001. This throws serious doubt over the concept of a functional 'queue' for people fleeing persecution in the region. Neither Pakistan nor Indonesia (countries on the route of the illegal trade of asylum seekers to Australia) is a signatory to the 1951 Refugee Convention. Thus, unlike Australia, they are under no legal obligation to accept refugees. By simply turning these people away Amnesty International criticised Australia with 'burden-shifting' rather than 'burden-sharing' (Skehan 2002). Indeed, Article 31 of the Refugee Convention prohibits the punishment of asylum seekers for illegal entry. The Convention does not speak of queues or provide for permits to escape; it imposes obligations on countries that have signed the Refugee Convention to receive and protect refugees (Enfield 1993: 44). There are no strict guidelines on the manner in which people must flee persecution.

This paper is primarily concerned with asylum seekers who enter Australia unlawfully (that is, without a valid visa) and are detained in one of six privately operated immigration detention centres. DIMIA stated that at 3 May 2002, there were 1,258 people in immigration detention in Australia. Yet in September 2001, shortly prior to a Federal election, the Australian government announced its ‘Pacific solution’ and the building of further detention centres on neighbouring Pacific islands. This was first and foremost about providing an answer to the difficult and urgent problem of delivering on Prime Minister John Howard’s uncompromising stance on the Tampa. On August 26 2001, the Tampa, a Norwegian cargo vessel, rescued 438 mainly Afghani and Sri Lankan passengers from a sinking ferry in Indonesian waters. Captain Arne Rinner decided that the safest option was to take them to nearby Christmas Island in Australian territory. The Prime Minister denied that is was Australia’s responsibility and refused to let the vessel dock in Australian territory. This quickly became a mechanism by which the Prime Minister could deliver on his broader promise that, from the Tampa on, no ‘unlawful’ asylum seeker would be allowed to land on Australian territory. It ultimately led to John Howard’s reinstatement as Australia’s Prime Minister and Philip Ruddock maintaining his portfolio as Immigration Minister on November 10 2001.

Prior to the election the Australian Federal Parliament debated the adoption of seven bills regarding immigration issues. The resulting reforms, broadly known as Australia’s ‘border protection policy’, were passed on 26 September 2001. They redefine who can qualify for refugee status, increase and specify the government's powers to prevent or remove vessels carrying 'illegal arrivals', re-zone and excise existing migration zones and outline a 'hierarchy of rights' to certain visas which follow from the creation of these newly 'excised territories' (HRF 2001). The issue of visas for refugees in Australia has been a contentious one since the advent of the Temporary Protection Visa (TPV) in October 1999. TPVs were implemented on the 20th October 1999, but were applied only to a small class of protected persons – the Kosovo refugees who were admitted to Australia under the 'safe haven' policy. In September 2001 this type of visa was extended to all on-shore refugees. This means that those who arrive in Australia without visas, and who are found to be genuine refugees, are only entitled to three-year temporary visas with limited entitlements. These people are not permitted to have their families join them and after three years they will have to reapply to determine whether they still face persecution. This is with a view to them returning home when circumstances deem that reasonable under the terms of the refugee definition (Mares 2001: 25). It has been argued that this is tantamount to creating a 'second-class' refugee. There is also no clear process for review of this arrangement for Australia's 'temporary refugees'.

The so-called 'Pacific solution' is a non-sustainable solution that has already caused dissent in the Papua New Guinean parliament and the South Pacific Forum. It has witnessed the sacking of the PNG Foreign Minister and the suspension of the Presidential Counsel in Nauru who both opposed aspects of the policy. 'Adrift in the Pacific', an Oxfam Community Aid Abroad report released in February 2002, was extremely critical of the Federal Government and warned that the Pacific solution is distorting and politicising Australia's aid program and adding to regional instability such as in strife-torn countries like Fiji, East Timor, Papua New Guinea and the Solomon Islands. While DIMIA asserts that the International Organization for Migration (IOM) manages the Pacific detention centres, it is done so at Australia’s cost. The Budget papers, delivered by Treasurer Peter Costello, revealed that there would be an outlay of an extra $1.24 billion on the Pacific solution over five years including 2001-2002. Considering Australia continues to receive approximately 4500 boat people each year, this would bring total spending on border security (preventing asylum seekers reaching Australian shores) to $2.87 billion to be spent over five years (Clennel 2002). This is despite Nauru and Papua New Guinea being told that the 1515 (McKiernan 2002) asylum seekers held there will leave in 2002. The fact remains that those detained often spend months, sometimes years, locked up. Despite the Convention on the Rights of the Child (CROC) and DIMIA's own guidelines stipulating that children and other vulnerable people should only be detained in exceptional circumstances - this remains common practice. As at 3 May 2002 there were 144 children in immigration detention in Australia. A further 125 were detained at Manus Island and 238 at Nauru. The government continues to argue that as these centres are being managed by IOM, it follows that the children 'are not in Australian immigration detention' (Ruddock 2002). Article 37(b) of the Convention on the Rights of the Child states that ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’.

In Australia the practice of detention has to be seen in the context of increasingly restrictive entry and immigration policies. Ours is an immigration policy based on elements of control and, as with the European and American experience, there has been a shift from the influx of economic migrants in the 1970's. This has resulted in a blurring of the categories of asylum seekers and other migrants. The challenge is to unlink asylum and migration issues so that each can be addressed in its own right. There is a need to develop differentiated policies to deal with asylum seekers in need of international protection and other aliens seeking entry. The border control issues may vary according to the country's position and border requirements. Yet the challenge remains the same - to generate the appropriate kinds of policy responses that comply with legal and moral obligations, guarantee protection for those who are in need of it and also respond to the concerns of the public. It is important that in our endeavours to formulate policy we remain mindful of the lives that these policies impact. These are real people. All should be afforded the respect and support that Australia is privileged enough to be able to provide. Many are genuine refugees. Others may be seeking a better life for themselves and their families. Such action should not be condemned. It is after all an enduring aspect of all humanity. We could perhaps learn from the lead of the African nations whose 'African Protocol' represents an adaptation of the Refugee Convention to embrace an economic class of refugee (Enfield 1993: 45). Despite many African nations now questioning both this generous view of who qualify as refugees and their ability to respond to it, it represents foresight and a sympathetic view of the changing nature of forced people movement.

Mr Philip Ruddock, the Minister for Immigration, Multicultural and Indigenous Affairs, continues to raise concerns over security, health issues and the risk of asylum seekers absconding during determination proceedings. The Minister suggests that these concerns justify the use of detention in asylum proceedings. Yet Australia is the only country that deems it necessary to enforce a mandatory, non-reviewable regime. When audited by the Australian National Audit Office (1998), DIMIA claimed 'the differences in detention policy between Australia and these other countries relate primarily to geography, and to historical and political factors.' The fact remains that detention as a migration deterrence device applied on a categorical basis can violate both treaty and customary international law. Mr Ruddock claimed that Canada was beginning to emulate our policies. Further to this, he recently stated that - 'What we are seeing in Britain is a desire to emulate our approach in all its facets...If to copy is a sincere form of flattery, we are seeing a government in the UK putting in place arrangements that mirror our own' (Kremmer 2001: 6). It is not accurate to claim that any of these countries are emulating Australia's controversial stance. Mr Ruddock also criticised Sweden's liberal policy on the grounds of a lack of security and compromising health issues. Yet it is a fundamental right set out in Article 3 of the Universal Declaration of Human Rights (1948): 'Everyone has the right to life, liberty and security of person', and in Article 9: 'No one shall be subjected to arbitrary arrest, detention or exile'. Under international law refugees are afforded the same protection as aliens. The only permissible grounds for detention of aliens are that the individual might abscond or for reasons of public safety.

I argue that mandatory and indeterminate detention, without effective control by the courts or justification particular to an individual person, is not an appropriate response to those seeking our protection. The policy of mandatory detention of most unauthorised arrivals breaches international human rights standards. These standards permit detention only where necessary and require that the individual can challenge the lawfulness of his or her detention in the courts.

On 24 July 2001, the Minister stated that 'My concern, which has always been that people should be available for processing and available for removal, might be able to be addressed if you had a system in which you could clearly identify where people were if they were free in the community' (Douez 2001). There are many viable alternatives to a policy of mandatory detention of asylum seekers, alternatives that incorporate established elements of effective policy and have been successfully trialed or already form part of the refugee policy of other Western countries. A look at the evolution of immigration detention in the United States, Canada, the United Kingdom and Sweden offers valuable insight into alternative detention policy. Sudden increases in asylum seekers in the 1980s saw detention become an issue in each of these countries, but each has dealt with the phenomenon in quite different ways. The Australian government alone has chosen to entrench a policy of mandatory detention.

Despite the fact that the United States Immigration and Naturalisation Service (INS) has 18,500 detention spaces available, the US is at the forefront of trialing alternative programs to mandatory detention. Prior to 1954 asylum seekers and immigrants in the US were screened and held, if necessary, at the Ellis Island immigration inspection and control centre in New York Harbour. The reform of this program, and subsequent abandonment of detention by the INS in 1954, was heralded as 'one more step forward toward humane administration of the immigration laws' (Helton 1994: 254). The US authorities have approached the issue of detention in a systematic manner trying alternatives such as the INS Pilot Parole Project. In order to determine whether asylum seekers were being unnecessarily detained the Parole Project was established in 1990. Agreed requirements were that individuals report to the local INS office monthly, appear for all immigration hearings, and appear for deportation if ultimately excluded. The project concluded in October 1991 and was shown to be a successful alternative to detention. Carefully administered, working with community and government agencies, it prevented unnecessary detention of asylum seekers and proved much cheaper than maintaining detention facilities. The INS review found that concerns over asylum seekers absconding proved unfounded. It found high rates of compliance by represented asylum applicants in terms of meeting monthly reporting requirements: 503 reported while 35 failed to report (93 per cent compliance with INS reports) and a 95 per cent compliance rate regarding appearances while on parole with 42 appearances in the immigration court and two non-appearances. Helton (1993: 17) concluded that the Program 'demonstrates that interests of immigration control can be reconciled in a workable fashion with the human rights of refugees'.

Another progressive program, trialed by the INS in 1997, was the Appearance Assistance Program (AAP). It represented a different kind of answer by the INS to the dilemma of how to allocate scarce detention resources. Instead of the traditional approach of focusing on whom to detain, the AAP focuses INS attention on when to detain. The alternative approach begins with the observation that people’s willingness to attend hearings and comply with terms of community supervision changes over time. Thus the focus is to maximise release and community supervision at the beginning of a person's case, when they have an incentive to appear at their hearing, and maximise detention at the moment that the person loses his or her claim. Under the alternative approach those with legitimate claims will have greater opportunity to prepare and will never spend time in detention. At the same time more of those who lose their claim will be deported. On March 31 2000, the last day of program operations, 91% of the 153 AAP intensive participants had appeared for all of their required hearings compared to 71% (401 participants) for the comparison groups that faced no risk of re-detention. The program proved close supervision to be a practical possibility even in the complex neighbourhoods of New York. This was primarily because of the role that a community sponsor, known as a guarantor, plays. When a detained asylum seeker met the criteria (community ties and a guarantor) the AAP would recommend release from custody, without bond, conditional upon complying with the programs requirements. The INS had discretion to approve or deny the recommendation and violation of supervision requirements could result in recommendations for re-detention. Even among asylum seekers apprehended at airports as they enter the country for the first time it was found that more than half have ties to local communities in the United States sufficient to make supervision viable (Stone 2000: 3). The image of the asylum seeker arriving with no contacts in the country is accurate only in a minority of cases. The results of the AAP make a compelling case for community supervision as an alternative to detention. It uses proven selection criteria and supervision techniques to obtain voluntary compliance so long as the risk of absconding does not become too great. It was found to increase the efficiency of the expensive detention system and, more importantly, those seeking our protection would, in many cases, be able to avoid the pain of detention altogether. In Australia, the Inquiry into Detention Practices, a submission to the Joint Standing Committee by the Department of Immigration and Ethnic Affairs (1993), also asserted that the 'timing of release' should be a central concern in reforming our immigration detention policy (Crock 1993: 29).

The immigration policies of Canada and Australia have taken similar paths. As with most Western countries, they experienced increases in refugee and asylum applications during the 1980's. Interestingly, though both countries share a common public law tradition, there is a divergence in their regulation and control of refugee claims and illegal immigration (Adelman 1994: 303). In 1967 Canada transferred from the discretionary administrative model (that prevails in Australia) to an adjudicative model. This system recognises a right to entry for purposes of determination and allows access to welfare benefits and freedom in the community while awaiting determination. Refugee claimants in Australia are provided with no incidental benefits such as welfare benefits, employment permits or medical care (McMaster 2001:117). The Minister claims that Canada is in the process of passing a similar refugee protection system to Australia. This claim is flawed when it comes to detention. The new Canadian Bill, C-11, complies with Conclusion 44 of the UN High Commissioner for Refugees’ Executive Committee that recognises a state's right to temporarily detain an asylum seeker in order 'to verify his or her identity or to protect national security and public order'. The Bill also provides for frequent detention reviews and complies with Article 37 of the Convention on the Rights of the Child (AIA 2001). The Canadian law does comply with Canadian international commitments and with International Human Rights Standards. Australia needed to defend its controversial stance at the ‘Refugee Summit’ in Geneva in December 2001. Australia proudly played a central role in the conception of the 1951 UN Refugee Convention and must now reaffirm its commitment to refugees.

At the end of 2000 refugees and asylum seekers in approximately 87,800 cases were in need of protection in the United Kingdom. These included 66,195 cases awaiting an initial decision, 11,365 granted humanitarian status based on their asylum claims, and 10,186 cases granted asylum during the year (USCR 2001). Recently Britain has undoubtedly tightened their asylum application process with proposed accommodation and removal centres to provide an alternative to the current policy of dispersal. Yet Minister Ruddock’s suggestion that Britain is attempting to emulate Australia's controversial stance in all its facets is simply not accurate. The British Home Secretary, David Blunkett (2001), stated that the new measures would 'send a message to the rest of the world that Britain is not open to abuse but nor is it a fortress Britain'. Significant reforms to the United Kingdom asylum and immigration policy announced in October 2001 place greater emphasis on the optimum time to detain asylum applicants. The new system will include a three-tier structure for asylum seekers – induction, accommodation and removal centres. Induction centres will accommodate new applicants for two to ten days, enabling screening and health checks. Accommodation centres for asylum seekers will be trialed offering full board, education and health facilities. The centres will have open access but applicants will be required to sleep there and receive their determination decisions in the centres. Those refusing accommodation centre places will not be eligible for any further support. A new welfare system has been provided to cover food, clothing and government services. In order to identify those in the community they have introduced an ID smart card that includes a photograph and fingerprint details of the asylum seeker. The removal centres, designed to house those who are about to be removed from the country, come closest to Australia’s concept of a detention centre. Yet in Britain these will only be employed once it is proved that the individual is not a refugee.

Sweden can be usefully compared to Australia because the two countries receive roughly the same number of asylum seekers each year. In 1999 out of 11,231 asylum applications in Sweden approximately one third were from Iraq (Mares 2001: 195). The Swedish model operates on the premise that it is the role of the state to make the detention process (if at all necessary) as humane as possible for people that have already been through a traumatic experience. In Sweden the four detention centres are state run and house a maximum of 120 people. In Australia, Woomera Detention Centre alone has room for 2000. The Swedish model of detaining asylum seekers was reformed in 1997. All asylum seekers who arrive in Sweden without documentation are detained only until their identification has been investigated and verified (a period lasting from two weeks to two months) and not for the entire duration of the determination process (Stagoll 2001). While they become integrated into Swedish society asylum seekers are required to stay in a designated municipality (Piper 1993: 122). The Swedish system focuses on the needs of people who have already suffered some form of persecution or other hardship in their country of origin. The Swedish administration recognises that these people need to be protected against any form of harsh treatment.

Australia has a sophisticated system in place for determining whether or not people meet the refugee definition. Yet it is the rigidity of this system, and in this particular argument, the nature of mandatory detention, that may fail the very people it is designed to protect. The conditions of detention may be acceptable over the short term, but when detention becomes prolonged it violates Australia's human rights commitments (HREOC 1998: v). This paper has shown that there are alternatives. Those explored included the US examples of a program of conditional release with reporting conditions as endorsed by the INS Pilot Parole Project and versions of a system of bond whereby an individual in the community takes responsibility for those released as in the Appearance Assistance Program. This program maintained a focus on the timing of release, a focus reinforced by the official Australian view of the Department of Immigration and Ethnic Affairs 1993 'Inquiry into Detention Practices'. Other alternatives that were analysed include the proposed reforms to the United Kingdom asylum and immigration policy announced in October 2001 that combine monitoring and removal procedures with an increased emphasis on the optimum time to detain asylum applicants. The relatively liberal procedures adopted in Canada and Sweden also offer workable alternatives to the Australian policy of mandatory detention.

Australia has not given international human rights treaty provisions the force of law although it has ratified them. In other words the rights enshrined in these treaties have generally not been implemented or incorporated into domestic law. As a result Australia's commitments under international human rights treaties are usually not enforceable. The Vienna Convention on Treaties (Article 26) alludes to 'carrying out one's obligations in good faith'. Australia needs to re-commit to this agreement. We must realise that the failure to affirm human rights values for any one category of person is a failure of the whole system of mutual obligations and respect through which decent, pluralistic, democratic life is conducted (Hughes et al 1998: 3). The future management of refugee flows is a complex and challenging human rights concern throughout the world. There is a need for all nations to confront the widespread human rights violations that lead to refugee movements in the first place. There exists an equal need to provide international protection to those people seeking it under the definition of the 1951 Refugee Convention. I am committed to the notion that a dialogue between governments, NGOs, the relevant international agencies and refugees themselves should be promoted. In this way issues and problems can be analysed and positive solutions proposed - solutions enshrined in a respect for human rights and for the institution of asylum.

I'm leaving - I'm leaving now. Before loneliness suffocates me - I'm leaving. Before I leave, I want to say thanks ... I am grateful for all the beautiful eyes who saw a man in me and not an alien.'

(A poem written by Ravinda Gidda while he was an inmate of the Detention Camp for Refugees in Tumubingen, Germany, 1982)

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Notes

In preparation for this paper interviews were conducted with the Hon. Philip Ruddock, Minister for Immigration, Multicultural and Indigenous Affairs, detention centre officers and refugees. The Department of Immigration and Multicultural and Indigenous Affairs has undergone a number of name changes in recent history – but will be generally referred to as DIMIA (its current title) for the purposes of this paper.

The author is thankful for the guidance and support of Professor Elaine Thompson at the School of Politics and International Relations, the University of New South Wales, and also for assistance from Dr Graham Thom, Coordinator for the Refugee Team, Amnesty International Australia and for the use of their extensive resources. The opinions expressed are solely those of the author.

BIOGRAPHY