The Australian Human Rights Commission (AHRC) has released a second edition of its snapshot report, Asylum seekers, refugees and human rights. The report provides a very useful review of recent developments in refugee and asylum policy in Australia.
The snapshot reports that:
- Many people continue to be detained for long periods of time
- Since 2013 there have been a lot of policies that increase the risk of refoulement
- Offshore processing on Nauru and Manus Island raises many human rights concerns, and
- There are increasing concerns about mental health, physical health and sexual and physical violence in detention centres.
The report addresses four key areas of law and policy:
- Immigration detention and community alternatives
- Protection against refoulement (return to serious harm)
- Offshore processing of asylum claims, and
- Discrimination based on mode of arrival.
In 2013, Australia received 15,977 applications for asylum – just 1.5 per cent of the global total. In 2016, Australia received 16,117 applications – 0.5 per cent of the global total.
Refugee and Humanitarian Program statistics.)
Significant developments since 2013:
- Almost all children have been released from immigration detention
- Fewer people in immigration detention overall
- Reinstatement of work rights for people on bridging visas
- Reintroduction of boat turn-backs through Operation Sovereign Borders
- Major changes to refugee status determination process
- Resettlement arrangements with Cambodia and the USA
- Reintroduction of temporary protection visas (TPVs) and Safe Haven Enterprise visas, and
- More restrictions on family reunion for those who arrive in Australia without a valid visa.
The United Nations High Commissioner for Refugees has highlighted potential breaches of Australia’s international obligations in a number of reports, submissions and statements. For more information look to our page on offshore processing.
Immigration detention and community alternatives
Detention of children
- In July 2013, there were 1,992 children in detention. This number was drastically reduced to 2 by 31 December 2016.
- In March 2015, the Department of Immigration formed an independent Child Protection Panel, and
- In March 2016, the Department endorsed a new Child Safeguarding framework.
The Commission has concerns that since the law has not been changed, the work done to get children out of detention could be reversed. It continues to express serious concerns for unaccompanied children and argues for greater protection for vulnerable children, especially when it comes to guardianship.
Conditions of detention
The Commission, in its visits to detention centres, have found that they are not an appropriate place to hold people, especially for long periods of time. The Commissions suggest there needs to be the introduction of minimum standards of detention facilities under Australian law. This would ensure access to solutions if breaches happen.
Detention resulting from security and character assessments
In the 2013 snapshot report, there were 57 people (including five children) facing indefinite detention due to security assessments. On 29 August 2016 there were four but these people have been in detention between four and six-and-a-half years
Under section 501 of the Migration Act, visas can be refused when individuals do not pass the ‘character test’. This is the case even if the individual is just a family member of the person seeking asylum. During 2015-2016, 423 people had their visa applications refused and 983 people had their visas cancelled.
There is the option for an appeal to the Administrative Appeals Tribunal (AAT). But if the minister has made the decision themselves the person cannot appeal.
The number of people in detention who have had their visas refused or cancelled has risen significantly since the last report. In October 2013, there were 115 people and in December 2016 there were 591 people.
Impacts of detention on mental health
Between 1 January 2013 and 25 August 2016 there were 1,730 recorded incidents of self-harm in detention. Detention can impair people’s cognitive function, memory and concentration, and this gets worse as time goes on.
Detention has terrible impacts on the mental health of children:
- There were 203 recorded incidents of self-harm by children between 1 January 2013 and 25 August 2016.
- Health assessments from the first half of 2014 showed that 34 per cent of children in detention had mental health disorders, compared to less than 2 per cent of children within the Australian population.
- The average length of detention has increased significantly over the past years. As of 31 December 2016, 603 people had been detained for over a year, and 331 people for over two years.
Alternatives to detention
Community living and involvement has been one of the most positive developments since 2013. This is because work rights have been reinstated for most people seeking asylum living in the community.
As of 25 August 2016, 2,700 people seeking asylum who arrived by boat are living in the community on bridging visas with work rights.
Protection against refoulement
The Commission points out that recent policy and legislative changes mean that Australia is at greater risk of breaching its international obligations of non-refoulement.
People who arrive by boat have had limited access to refugee status determination procedures, due to changes since 2013.
The Commission is concerned that these people have a higher risk of being returned to danger.
The main developments have been:
- The Legacy Caseload Act allows the minister and officers to detain people at sea and take them to another country, even if there is no agreement with that country (read RCOA’s briefing on the Legacy Caseload Act)
- These powers are not subject to judicial review, natural justice and parliament scrutiny
- The Act introduced a new system for determining refugee status for people who came by boat (which the Government calls ‘fast tracking’). These individuals will not have their claims reviewed by the AAT but instead are referred to the Immigration Assessment Authority (IAA).
Offshore processing is where people are sent to a third country to have their claims processed. While this is not prohibited by international law, human rights do need to be upheld.
The Commission observes that:
- Processing rates have increased since 2013. As of 21 January 2017:
- 1,204 people in Nauru have received a decision about their claim (998 were positive and 206 negative)
- 884 people in Manus Island received a decision (689 were positive and 225 negative).
- The processing time was on average 402 days (as of April 2015).
- In February 2015 Nauru allowed ‘open centre arrangements’, which meant people could leave the detention facility
- The Papua New Guinea and the Australian Governments made an arrangement to end detention on Manus Island.
Conditions in Nauru and Manus detention centres
Two separate Senate inquiries have highlighted the shortcomings in the conditions in these detention centres:
- Many reports on violence inside and outside the facilities
- Limited health and care services, and
- The effects on mental and physical health/
Mental health issues are worsened by prolonged and indefinite detention and poor living conditions:
- Out of 181 people surveyed on Manus Island, 88 per cent were suffering from depression, anxiety or post-traumatic stress disorder, and
- Of 53 people on Nauru, 88 per cent of people suffered from the same mental health issues.
The Commission has asked for more information about these issues but the Department has not yet provided this.
The Commission suggests that there is a need for an independent monitoring body to ensure transparency, accountability and compliance with human rights obligations.
Discrimination based on mode of arrival
The Commission has conducted numerous studies on the experiences of those holding temporary protection visas who have uncertainty towards their futures. People holding these visas find themselves unable to make future plans and experience enormous stress because of the need to reapply for visas. This compounds their trauma from persecution. Not surprisingly, the Commission has found they have poorer settlement outcomes.
The Commission also expressed considerable concern about restrictions on family reunion.