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Despite these significant improvements, serious concerns continue to be voiced by eminent community leaders. The main criticisms focus on:
The rationale for keeping asylum seekers who enter the country without immigration clearance is immigration control. An additional reason sometimes given is deterrence. This submission recognises the place of detention as an instrument of immigration control. Detention is, however, costly - politically, socially and economically - as well as in human terms. It is therefore desirable to modify the present regime so as achieve a better balance between immigration objectives on the one hand and, the costs of detention on the other.
The alternative model, set out below provides a legislative and regulatory framework for a more flexible detention regime. Under this model restrictions of the current type on the liberty of Protection Visa applicants should be kept to a minimum, usually to less than 90 days. After the initial period in closed detention, most applicants would pass on to a more liberal regime; one that is most appropriate to the individual’s circumstances. Regular review of each applicant’s detention status is recommended so as to improve the ability to relate the applicant’s circumstances more equitably to the restrictions imposed on his/her liberty. Finally, a review process is recommended to establish an ongoing process leading to a higher level of equity in the case management of each applicant. The alternative model proposes a simple three stage regime. The stages represent a linear progression ranging from severe restrictions on personal liberty to increasingly liberal provisions.
i) Closed detention: this represents the most severe form of detention. All applicants who have not been immigration cleared would be initially held in closed detention. During this initial period, the applicant’s identity and circumstances would be established to the point where a decision can be made about the form of detention that is most appropriate. It is envisaged that most applicants would be moved to one of the two more liberal detention regimes within 90 days of arrival in Australia. Closed detention would be under the control of the Department of Immigration and Multicultural Affairs (DIMA); the regime would be as in current facilities at Port Hedland (Western Australia), Villawood/Westbridge (New South Wales), Maribyrnong (Victoria) and Perth Airport. (ii) Open detention: this represents an intermediate regime. It would facilitate those applicants who were considered to be unsuitable for community release, either because this was judged not to be in the interests of the community or, not to be in the best interests of the applicant. Freedom of movement would be restricted by curfew requirements. Residential facilities would be maintained and regulated by DIMA. iii) Community Release: this represents the most liberal regime within the detention model. DIMA would not be responsible for the accommodation and welfare of the applicants. Under some forms of community release, family members or community organisations should undertake some responsibilities for the applicant. Restriction on personal liberty would be limited to residing at a designated address and reporting requirements. Community Release would take one of three forms:
The alternative model would enable the responsible authorities to move applicants over the range of detention stages to best suit changing circumstances as well as in response to past behaviour. The alternative detention model offers a range of advantages by providing: A more humane regime, which reduces individual suffering and hardship by providing for alternative detention mechanisms which can be responsively linked to individual circumstances. Greater flexibility, by being able to move applicants from one detention stage to another as their circumstances change. Enhanced equity, by reducing the present disparities in treatment between those applicants who are immigration cleared and those who are not (under the current provisions its usually only the non immigration cleared asylum seekers who are subject to detention.) Reduced Costs: Financial savings can be achieved by the significantly reduced use of closed detention which is the most costly regime. Furthermore, the alternative model does not require additional capital works. Political costs would be reduced. The alternative model addresses community concerns such as those put forward by the Charter of Minimum Requirements thus rendering detention a less divisive issue. Closer harmony with international guidelines, as the model would bring detention practice in Australia into consistency with instruments such as the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the various guidelines published by the United Nations High Commission for Refugees (UNHCR), including the Guidelines on the Detention of Asylum Seekers (1995) and the Executive Committee of UNHCR’s Conclusion No 44, Detention of Refugees and Asylum Seekers (1986). Closer harmonisation with international norms would render Australia less open to international criticism for its immigration detention practice. Ease of implementation, as the alternative model requires few administrative adjustments to the existing visa, assistance (ASA) and review framework.
STAGE I: ARRIVAL, RECEPTION, & CONSIDERATION FOR RELEASE: A. Presumption for release within three months: There is a presumption that all applicants for a Protection Visa ("applicants") will be released from detention within three months of arrival, unless the case officer is satisfied that any one of the following grounds for detention exist with respect to the individual applicant: B. Grounds for detention: 1. IDENTITY: The identity of the applicant cannot be verified as far as practicable. 2. CLAIM: A valid application for a Protection Visa - which includes the elements on which the applicant’s claim for asylum is based - has not been lodged with DIMA. 3. NATIONAL SECURITY: The applicant is a threat to the national security or public order. 4. LIKELIHOOD OF ABSCONDING: There is a demonstrable likelihood that the individual applicant is likely to abscond. 5. HEALTH CHECK: The applicant has failed to complete a health check, or undertake to complete a health check, when required to do so by the case officer. C. Special circumstances requiring priority processing: The case officer shall give priority to the processing for release from detention of an applicant where any of the following special circumstances exist: 1. CHILDREN AND CLOSE RELATIVES OF CHILDREN: The applicant is less than 18 years of age, or is a close relative of another applicant who is less than 18 years of age. 2. AGED PERSONS: The applicant is aged greater than 75 years of age. 3. UNACCOMPANIED MINOR: The applicant is an unaccompanied minor. 4. SINGLE WOMEN: The applicant is a single woman. 5. HEALTH: The applicant has a special need based on health in respect of which a medical specialist (and/or an appropriately qualified medical practitioner) has certified that the applicant cannot properly be cared for in a detention environment. 6. TORTURE/TRAUMA: The applicant has a special need based on previous experience of torture or trauma in respect of which a medical specialist (and/or an appropriately qualified medical practitioner) has certified that the applicant cannot properly be cared for in a detention environment.
A. Criteria for release from detention: An applicant who complies with all of the requirements as set out in Stage 1, paragraphs B(1)-(5) must, within three months of arrival in Australia, be released from detention. B. Forms of release from detention: Applicants who qualify for release from detention shall be granted a bridging visa which matches the appropriate form of release. The type of bridging visa which is granted is to be determined by the case officer. C. Forms of Bridging Visa: The following bridging visas shall be available for applicants who are to be released from detention: 1. Open Detention Bridging Visa 2. Community Release Bridging Visa: (a) Family Release (b) Community Organization Release (c) Release upon Own Recognisance. D. Statement of Reasons: An applicant who is not released must be provided with a statement of the reasons for his or her detention. E. Priority processing of asylum claims for persons held in detention: An applicant who is not released shall be given priority in processing of his or her application for a Protection Visa. 1. OPEN DETENTION BRIDGING VISA: The elements of this bridging visa are as follows: (i) Accommodation and daily requirements provided by DIMA. (ii) The holder can leave the centre between the hours of 7.00 am and 7.00 pm. (iii) The holder must sign out of the hostel every morning and in to the hostel every evening. (iv) Eligibility for Permission to Work will be available in the terms contained in Bridging Visa E. If the holder obtains employment, a fee for accommodation shall be payable by the holder. (v) Eligibility for Asylum Seekers’ Assistance shall be in the terms currently available to other asylum seekers. If ASA is granted, a fee for accommodation shall be deducted prior to payment to the holder. 2. COMMUNITY RELEASE BRIDGING VISA: (a) FAMILY RELEASE: The elements of this bridging visa are as follows: (i) The holder must reside at a designated address with a nominated close family member. Any change of address must be notified to DIMA within 48 hours. (ii) The holder must report at regular intervals to DIMA, to be specified by the case officer. (iii) The holder or the nominated close family member may be required to pay a bond to DIMA or sign a recognisance with DIMA. (iv) If called upon to do so, the holder shall within 24 hours present to an officer of DIMA. (v) The holder will be required to sign an undertaking in writing that he or she shall comply with the conditions of the visa and, in the event that a condition of this visa is breached, may be returned to detention. (vi) Eligibility for Permission to Work will be available in the terms contained in Bridging Visa E. (vii) Eligibility for Asylum Seekers’ Assistance shall be in the terms currently available to other asylum seekers. (b) COMMUNITY ORGANIZATION RELEASE: The elements of this bridging visa are as follows: (i) The holder must reside at a designated address nominated by a recognised community organisation. Any change of address must be notified to DIMA within 48 hours. (ii) The holder must report at regular intervals to DIMA, to be specified by the case officer. (iii) If called upon to do so, the holder shall within 24 hours present to an officer of DIMA. (iv) The holder will be required to sign an undertaking in writing that he or she shall comply with the conditions of the visa and, in the event that a condition of this visa is breached, may be returned to detention. (v) Eligibility for Permission to Work will be available in the terms contained in Bridging Visa E. (vi) Eligibility for Asylum Seekers’ Assistance shall be in the terms currently available to other asylum seekers. (c) RELEASE UPON OWN RECOGNISANCE: The elements of this bridging visa are as follows: (i) The holder must reside at a designated address. Any change of address must be notified to DIMA within 48 hours. (ii) The holder must report at regular intervals to DIMA, to be specified by the case officer. (iii) If called upon to do so, the holder shall within 24 hours present to an officer of DIMA. (iv) The holder will be required to sign an undertaking in writing that he or she shall comply with the conditions of the visa and, in the event that a condition of this visa is breached, may be returned to detention. (v) Eligibility for Permission to Work will be available in the terms contained in Bridging Visa E. (vi) Eligibility for Asylum Seekers’ Assistance shall be in the terms currently available to other asylum seekers.
A. BREACH OF CONDITIONS: If the applicant breaches any one of the conditions set for his or her release, and fails to show good reason for such breach to the case officer, he or she may be returned into detention and shall not be eligible to re-apply for release until a period of 90 days from the time of return to detention. B. CHANGE IN CIRCUMSTANCES: If any of the circumstances set out in Stage 1, paragraphs B(1)-(5) occur, the applicant may be returned to detention. A. By case officer: (i) Where the applicant remains in detention, the case officer must review that person’s detention at the end of every 90 days. (ii) The case officer has a non-enforceable discretion to review the detention and/or release status of an applicant at any time should there be a change in the circumstances of the applicant. (iii) The case officer must review the detention and/or release status of the applicant upon request by the applicant, save that the case officer is not required to consider any such application more than once every 90 days. (iv) In determining whether there should be a change in the detention and/or release status of the applicant, the case officer must take into account any change in circumstances since such status was last set. (v) If the detention status of the applicant is to be changed, the case officer must provide a statement of reasons for the decision. B. By the Immigration Review Tribunal (IRT): (i) Upon request by the applicant, the IRT may review a decision of a case officer with respect to: * the detention status of an applicant; * the conditions of release imposed on the applicant; and * an alleged breach of any condition of release imposed on the applicant. (ii) The IRT is not required to consider any such application more than once every 90 days. (iii) If no decision is made by the case officer as to the detention status of an applicant within 90 days of the applicant’s arrival in Australia, the IRT must review the detention status of that applicant as a matter of priority. (iv) Any review by the IRT under this provision is a review de novo on the merits of the application. The IRT may in its discretion impose any of the available bridging visas upon the applicant, regardless of the status of the applicant at the time of application or of the type of bridging visa originally sought by the applicant. C. By the Federal Court of Australia: The Federal Court of Australia has the power to review decisions relating to detention status as with all IRT reviewable decisions. |
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