Behind the closed doors of immigration detention
29th Jul 2021
The latest reports from the Commonwealth Ombudsman and Australian Human Rights Commission highlight that people in immigration detention, including people seeking asylum and refugees, continue to face serious risks to their health, safety and wellbeing. The Government’s expansion of the detention system without adequate transparency or accountability has created a Kafkaesque regime where it is possible for people to be arbitrarily detained in dismal conditions.
Indefinite detention is considered lawful
The long-standing decision in Al-Kateb and the recent High Court judgment in AJL20 affirm that Australia’s laws permit indefinite detention. In addition, the consequence of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) is that persons who are owed protection obligations but have no visa pathways will face indefinite detention; only the exercise of the Minister for Home Affairs’ discretion can end their detention, which very rarely occurs.
Increasing detainee numbers during COVID-19
The average number of days that people spend in closed detention (now 646 days) is at the highest ever recorded. This is despite the heightened risks that people in detention face of contracting COVID-19. Many countries such as the UK, Canada and the US have responded to the COVID-19 risk by reducing the number of people held in immigration detention (by approximately 39%, 66% and 69% respectively). In stark contrast, Australia expanded its detention facilities during the pandemic with the reopening of detention facilities on Christmas Island in August 2020, and Australia’s immigration detention population increased by almost 12% in 2020.
Excessive use of force by detention staff
The Ombudsman reports that detention staff use a practice called ‘mandatory ground stabilisation’ where detainees are physically restrained on the floor, even if they are complying with instructions. These findings echo our clients’ reports of being subjected to excessive force and placed in isolation cells where they are under constant video surveillance without any privacy and do not have access to phone reception to contact their lawyers.
Other routine practices add to the oppressive environment in immigration detention. Often detainees are subjected to transfers to interstate detention facilities during the early hours of the morning or weekends, when they are unable to contact their lawyers. This exacerbates their mental health conditions, and increases their isolation from support networks and access to legal representation. Further, disruptive room searches are conducted at unexpected times during the morning when detainees are sleeping, which compounds the anxiety and frustration that detainees experience in immigration detention.
Detention records used to support visa refusals and cancellations
In this context, it is concerning that the immigration detention records of people seeking asylum and refugees can be relied on by the Department of Home Affairs (Department) in its assessment of people’s character; these records could be the basis of refusing or affirming the cancellation of a person’s visa. This is particularly troubling when the records reflect a one-sided view of a detention staff member with unproven allegations and no opportunity provided for detainees to comment on what information is stored in their records. The broad nature of the ‘character test’ under the Migration Act 1958 (Cth) (Migration Act), which permits the refusal or cancellation of a visa where a person is found to be ‘not of good character’ based on their ‘past and present general conduct’, creates a significant risk that persons in immigration detention will not be able to overcome any alleged character issues on the basis of their detention records and conduct in detention (see s501(6)(c) of the Migration Act).
Medevac transferees arbitrarily detained
In addition to the oppressive conditions of detention, the Government’s approach regarding who is held in detention is arbitrary, causing much anxiety and distress to people seeking asylum and refugees. More than 1,000 people have been transferred from Papua New Guinea or Nauru to Australia for medical treatment – over 100 people have been held in closed detention, whereas others have been released into community detention or on short-term bridging visas. The Department has provided no explanation as to why some have been released while others remain in closed detention. This gap in information and arbitrary treatment is exacerbating the mental health conditions of people in detention as their future remains uncertain. Further, there is no pathway for people in this situation to be released from detention or to apply for a visa unless the Minister exercises her discretion under the Migration Act.
Australia’s immigration detention regime is out of step with international standards, which provide that immigration detention should only be used as a last resort. Instead, immigration detention has morphed into an extension of the prison state, without the requisite accountability and oversight. While broad and unchecked ministerial powers remain in our laws, people seeking asylum and refugees will continue to face the harsh and unjust realities of Australia’s immigration detention system.
Rachel Saravanamuthu is a Senior Solicitor at the Asylum Seeker Resource Centre.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 Australian Human Rights Commission, Management of COVID-19 risks in immigration detention, June 2021, 5.