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JANE McADAM[*] contrasts immigration detention policies in Australia and Europe.
Australia's laws regulating the reception and processing of asylum seekers are uniquely draconian in the western world. In Australia, all asylum seekers who arrive without a valid visa must be detained.[1] The rationale behind this mandatory detention policy is 'to maintain the integrity of Australia's migration and humanitarian programs as well as to prevent unauthorised arrivals from entering the Australian community until their claims to stay in Australia are assessed'.[2] It is also intended to deter other asylum seekers from coming to Australia without a visa.
Australia is the only western country with a mandatory detention regime for unlawful non-citizens. Furthermore, under this regime, detention per se cannot be reviewed by the courts and there are no time limits on its duration.[3]
The Migration Act 1958 (Cth) requires that all unlawful non-citizens be detained,[4] with s 196(3) explicitly preventing the courts from ordering the release of an unlawful non-citizen from detention unless for the purposes of removal or deportation, or because a visa has been granted.[5] While a decision to detain cannot be reviewed, a number of recent cases have challenged the lawfulness of detention in particular circumstances by relying on the common law writ of habeas corpus, constitutional challenges, Australia's international legal obligations and provisions in other domestic legislation.[6]
The policy of mandatory detention violates a number of Australia's obligations under international human rights and refugee law, including those which state that detention should only be used in exceptional circumstances and then only for the purposes of verifying identity, ascertaining health and safeguarding national security. Detention should never be used to deter or disrupt the right of people to seek asylum, nor as punishment.[7]
The Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) describes those people who come to Australia without a valid visa as 'abusing' the law. Under international law, however, every individual has the right to seek asylum in another country. In accordance with article 31 of the Refugee Convention, which Australia ratified on 22 January 1954, the manner in which a person enters a country-whether illegally or not-should not be used as a means of discrimination. This principle recognises that people seeking asylum are vulnerable and at serious risk of human rights abuses, and as such cannot always avail themselves of the usual legal channels in order to secure protection.
Australia's detention regime severely discriminates between different types of asylum seekers. Those who arrive in Australia on another type of visa may subsequently claim asylum and remain in the community while their claim is processed. By contrast, any person who arrives in Australia without a visa and claims asylum is subject to immediate, non-reviewable detention, and in most cases is not eligible for a permanent protection visa.[8]
In 2001, Australia received 12,366 applications for refugee status.[9] By contrast, in the same period, the United Kingdom received 92,000 applications, Germany 88,287 and France 47,291. Clearly in terms of numbers, applications for asylum in Australia are relatively low. Despite a total number of 388,372 refugee applications in the 15 European Union (EU) Member States in 2001, none of those countries employs detention as a standard means of accommodating asylum seekers pending the outcome of their claims. In Europe, detention is used mainly (if at all) at the beginning of the asylum determination procedure to investigate travel routes and the identities of the people seeking protection, and at the very end to arrange travel documents for deportation or to ensure that the rejected asylum seeker does not abscond. It may also be used where police measures are insufficient (Sweden, Ireland, France); where the asylum seeker does not cooperate in establishing their identity and travel route (Denmark, Ireland); where the asylum seeker fails to stay in a specified location (Denmark); in the event of violent or threatening behaviour or if the asylum seeker is considered a potential threat to national security (Ireland, Belgium, Spain); or to prevent criminal activities (Sweden, Finland, Spain).[10]
However, it should be stressed that in most EU countries strict time limits exist as to the length of time an asylum seeker may be detained. In Finland, Austria, Germany, Luxembourg and Belgium, the maximum length of detention is around two to three months. In practice, the typical maximum period in Spain, France, Ireland and Finland is four days, while in the remaining EU countries, it can last from five weeks to nine months.
Furthermore, in all countries except Ireland and Luxembourg, a decision to detain a person can be appealed. In some countries judicial review is possible, while in others an immigration officer or senior police officer may make the determination.In Australia, ss 183 and 196 of the Migration Act prevent a court from ordering the release of an asylum seeker from detention. This has been severely criticised by the Human Rights and Equal Opportunities Commission (HREOC) and Amnesty International as a violation of the prohibition on arbitrary detention in article 9 along with other provisions of the International Covenant on Civil and Political Rights (ICCPR), and article 37(b) of the Convention on the Rights of the Child.
As part of the harmonisation of asylum. law throughout the EU, a proposed Directive will prohibit Member States from detaining an asylum seeker 'for the sole reason that his [or her] application for asylum needs to be examined before a decision is taken by the determining authority'.[11] Detention of an asylum seeker while their application is being
processed will only be permitted: (a) following a specific decision, in accordance with a procedure laid down by national law or regulation, that such detention is objectively necessary for an efficient examination of the application; (b) where there is a strong likelihood of the applicant absconding, based solely on their personal conduct; or (c) where there are grounds for believing that the restriction on the applicant's freedom of movement is necessary for a quick decision to be made, in which case detention must not exceed two weeks.[12] Furthermore, Member States must provide for initial and subsequent judicial review of the order for detention. If an asylum application has been rejected but another Member State has agreed to take charge of the unsuccessful applicant, then detention is permitted to prevent the person absconding or effecting an unauthorised stay, but such detention must not exceed one month. [13]
In nine EU countries asylum seekers have a choice about the type of accommodation they live in while their application for refugee status is processed. In Denmark, Finland, Luxembourg, Sweden, Portugal and France, asylum seekers can choose to live outside reception or accommodation centres at their own expense. The figures vary from around 2% of applicants selecting this option in Denmark, to 90% in France. The majority of asylum seekers in Denmark choose to remain in reception centres in order to retain a living allowance.
In Belgium and The Netherlands, asylum seekers must stay in reception centres for the first period of the asylum process but can live outside later. In Greece, children, the elderly and the disabled can live in public establishments. In Finland, asylum seekers may choose to live outside reception centres due to greater freedom and independence, preferable locations, and the possibility of living with friends or family. In Greece, Italy and Portugal, only a limited number of places are available in accommodation centres, forcing the remainder to find private accommodation.
Exceptions to compulsory detention in Australia are very rare. People under 18 and over 75 years of age, spouses of Australian citizens or people with a special health need or with previous experience of torture or trauma can be considered by the Minister for a bridging visa allowing their release from detention. However, children cannot be released together with their family, and as DIMlA considers it in the best interests of children to remain with their family, very few leave detention.[14] No special accommodation exists for unaccompanied children, women or for family groups within detention centres. There have been cases in Australia of unaccompanied children being held in high security sections of detention centres due to a lack of other facilities. On 7 August 2001, a voluntary trial called the 'Residential Housing Project' was established at Woomera, which allowed up to 25 women and children[15] housed at the Woomera detention centre to live in family-style accommodation in the Woomera township. While they were permitted to visit each other, and could arrange to be taken back to the detention centre to visit family members and friends who remained there,[16] they were not free to come and go alone because they formally remained in immigration detention. By contrast, most EU countries provide special accommodation for unaccompanied minors; seven countries offer special accommodation for women and families; while four countries provide it for victims of torture and organised violence.
In April 2003, the Full Federal Court held that Australia's indefinite detention of unsuccessful asylum claimants was unlawful and constituted a breach of Australia's international obligations under the ICCPR and of the fundamental common law right to personal liberty.[17] Although the case specifically concerned the rights of an unsuccessful asylum seeker who had been held in detention after requesting to be removed from Australia (but was unable to leave due to a number of countries refusing him permission to transit through them), it nevertheless demonstrated that the government's detention policies cannot operate in a human rights void. In particular, it showed the Court's willingness to read down local laws to conform with Australia's international human rights obligations, even when those obligations have not been implemented domestically.[18] Although the case did not (and could not) directly challenge Australia's mandatory detention policy, it has affirmed that at least one component of Australia's detention regime breaches international human rights law, underscoring the potential of international and regional legal standards in regulating 'domestic' matters.
The most recent and far-reaching court challenge to mandatory detention was decided by the Full Family Court in June 2003. In B v Minister for Immigration & Multicultural & Indigenous Affairs [2003) FamCA 451 the Court asserted its broad jurisdiction in relation to child welfare and held that it extended to the protection of children in immigration detention. In addition, it found that the marriage, divorce and incidental powers in the Constitution permitted the Family Court to protect children from abuse by third parties, which would extend to children in detention. The majority considered that the Migration Act should be interpreted as having been passed subject to (or at least with regard to) Australia's obligations under the Convention on the Rights of the Child, and accordingly the Act could not have intended that children be detained indefinitely.
The Minister has appealed this decision to the High Court. If it is upheld, the case will impact on Australia's mandatory detention policy in an unprecedented way, effectively enabling any child in detention to challenge both its legality and conditions. In the meantime, the five children in B v Minister for Immigration & Multicultural & Indigenous Affairs will have their application for release from detention heard by the Family Court at the end of July 2003.
Jane McAdam is a doctoral candidate and teaches law at Lincoln College, University of Oxford.
<02003 Jane McAdam
[*] Jane McAdam is a doctoral candidate and teaches law at Lincoln College, University of Oxford.
©2003 Jane McAdam
[1] Limited and exceptional grounds for release from detention arc discussed below.
[2] DIMIA, 'Detention' in Protecting the Border: Immigration Compliance, 2000, <http:/ /www.immi.gov.au/illegals/ border2000/bordcr32.htm> at 21 March 2003.
[3] Amnesty International reports that some asylum seekers have been held in detention for up to four years, and children have been born in detention: see Amnesty International, Australia: A Continuing Shame: The Mandatory Detention of Asylum-Seekers, AI Index AUS/POLIREF (1998)
<http://www.amncsty.org.au/aircsources/does/refugee/WebsitcRcfugccLibraryContinuingShamcRcport.doc> at 20 March 2003.
[4] Migration Act 1958 (Cth) ss 178, 189.
[6] See, eg, Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1; Ruddock v Vadarlis Multicultural & Indigenous Affairs [2002] FCA 907; Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; B v Minister for Immigration & Multicultural & Indigenous Affairs [2003] Fam CA 451.
[7] Convention Relating to the Status of Refugees, adopted 28 July 1951, 189 UNTS 137, art 31 (entered into force 22 April 1954) (Refugee Convention).
[8] Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 200I (Cth).
[9] Australia's refugee intake consists of two distinct offshore and onshore programs. The total intake is set at 8000 places, 4000 of which are set aside for offshore applications. This article uses figures compiled by UNHCR on the basis of governmental information, which can be found at UNHCR, 'Asylum Applications Lodged in Industrialized Countries: Levels and Trends, 2000-2002', Geneva, March 2003 <http://www.unhcr.ch/cgi-bin/texis/vtx/statistics> at 25 April2003. Confirmed comparative figures are not yet available for 2002 onwards.
[10] This information is taken from the European Commission Directorate General for Justice and Home Affairs, Study on the Legal Framework and Administrative Practices in the Member States of the European Communities Regarding Reception Conditions for Persons Seeking Internationql Protection: Final Report (2000) <http://europa.eu.int/comm/justice_home/unit/doc_asile_immigrat/final_rapport_en.pdf.> at 25 April 2003.
[11] Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status COM (2002) 326 final, 18 June 2002, as amended 5 April2003, art 17(1).
[12] Ibid art 17.The Explanatory Memorandum notes that national policies on detention for other reasons, such as national security, penal proceedings and so on, are not affected by this provision, as this article is limited to the stage of examination of an asylum application.
[13] Ibid art 18.
[14] Only two out of a possible total of 581 children were released from detention between 1 September 1994 and May 1998, according to a HREOC Report, Those Who've Come Across the Seas: Detention of Unauthorised Arrivals (1998) 52.
[15] Female children of any age were permitted to participate, while only male children 12 years and under were accepted: DIMIA Fact Sheet 83, 'The Woomera Alternative Detention Arrangements for Women and Children Project' (2002) <http://www.immi.gov.au/facts/83woomera.htm> at 9 May 2003.
[16] A HREOC inquiry heard that women choosing to do this had to forego their $6 a day allowance: M Saunders and S Pitsis, 'Asylum-seekers to Live in Community', The Australian (Sydney), 4 December 2002. See HREOC National Inquiry into Children in Immigration Detention, <http://www.hreoc.gov.aulhuman_rights/children_detention/index.html> at 9 May 2003.
[17] Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 [155], [94]. The government is seeking leave to appeal this decision to the High Court.
[18] The Court also considered decisions by the Human Rights Committee and the European Court of Human Rights, as well as 'opinions expressed in works of scholarship in the field of international law', to support its findings: ibid [148]-[149].
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