Immigration detention system in breach of international human rights obligations

By Rebecca Devitt | 22 Jul 11

22 July 2011

Mandatory detention, the continued detention of children and prolonged detention have led to the most serious breaches of the human rights of refugees in Australia, the Australian Human Rights Commission President, Catherine Branson QC said yesterday, at a public lecture in Sydney. Australia’s strict immigration regime continues to breach international obligations particularly in relation to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Whilst 60 percent of children in immigration detention are now living in community detention, families and unaccompanied minors remain in detention.

Ahead of the lecture hosted by the Australian Human Rights Commission and featuring a speech by Professor Stephen Castles from the University of Sydney and the International Migration Institute at the University of Oxford, Ms Branson urged the Australian government to consider extending community detention to families and unaccompanied minors stating that “Under the Convention of the Rights of the Child, which Australia has agreed to respect the detention of children must be a last resort and for the shortest appropriate period of time.”

Currently more than 4,000 asylum seekers and refugees are held in immigration detention facilities across Australia. Prolonged and indefinite detention has caused serious mental harm for many asylum seekers and refugees who have arrived in Australia. Under the detention centre regime, refugees are not able to challenge their detention in court and there is no limit to how long a person can be held in detention. Lack of access to the courts, slow background checks and lack of approval for visas has led many refugees to vent their frustration through protests, most recently at Christmas Island.  “People in detention often express their disbelief and a sense of injustice, that in a country like Australia, they could be detained indefinitely without the ability to challenge their detention before a judge. “

Ms.Branson’s comments come, as the Australian government looks set to sign a refugee swap deal with Malaysia by Monday. The deal in which Australia will take 4000 confirmed refugees from Malaysia in return for 800 asylum seekers resettling in Malaysia has been met with much criticism, including from the United Nations High Commissioner for Refugees (UNHCR), whose endorsement of the deal is critical for processing and resettling the refugees in Malaysia.

The UNHCR has expressed concern that refugees are being sent to Malaysia, a country which is not a signatory to the Refugee Convention and has sought human rights guarantees before agreeing to support the deal. More then 95,000 refugees in Malaysia have no legal right to work, lack access to healthcare and education and are often left in limbo when it comes to resettlement in another country.  The Malaysia deal will be made effective from the moment it is signed meaning that 407 asylum seekers who have arrived since May on Christmas Island will not have their claims for refugee status processed, in breach of international law.

Those who have arrived since May include a mother and child, who are conducting a legal challenge against the government’s policy. The women and her son who arrived on 7 May 2011 are faced with removal from Christmas Island, whilst the women’s husband who arrived earlier this yeas has had his refugee status upheld. According to David Manne from the Refugee Legal Centre, the separation of this family is potentially unlawful. “ They remain in legal limbo and in a situation of arbitrary detention, and is certainly likely to cause them lasting damage.”  If the legal challenge is upheld by the High Court, it is likely to have a significant impact on those remaining in detention and could set a precedent for further challenges. A second High Court challenge is being made against the Malaysia swap arguing that the policy contravenes the Migration Act 1958 (Cth).