How long refugees stay in detention centres

The Minister, in turn, has delegated his powers to the Department's Managers and Deputy Managers in each of the detention facilities as well as to State and Territory child protection authorities. Australia's detention laws do not make any distinction between the detention of unaccompanied children and any other child or adult. Thus all unaccompanied children arriving in Australia without a visa must be detained. Regarding the length of detention, section 6.

However, as set out above in section 6. The placement of these children in home-based foster care represented a clear step froward in applying the 'best interests' principle to unaccompanied children. The Department's efforts to make the best interests of unaccompanied children a primary consideration regarding their care in detention centres is discussed in detail in Chapter 14 on Unaccompanied Children and throughout this report.

By December the Department formally acknowledged that the best interests of unaccompanied children would usually require that they not be in detention facilities. The change between September and December represents a fundamental development in the Department's approach to the best interests of unaccompanied children.

Thus MSI recognised that it would be in the best interests of unaccompanied children to be released from detention quickly, but only after a refugee claim has been refused at the primary stage which can take many months. The MSI went on to provide that, in the meantime, if the Department Manager believed that the unaccompanied child's needs 'cannot be appropriately provided for', the Manager should investigate the possibility of transferring the child to a place of detention other than an immigration detention centre.

The MSI then set out the steps that the Manager needed to go through to establish that their needs could not be provided for. Three months later, in MSI , the Department replaced paragraph Thus, by December - ten years after the introduction of mandatory detention - the Department began to assume that satisfying the best interests ofunaccompanied children usually requires their release or transfer from detention facilities.

However, the Department continues to suggest that that it may be in the best interests of some unaccompanied children to remain in detention. For example, the Department has stated that it may be in a child's best interests to remain in the company of persons they have made friends with:. But clearly, as Mr Walker said, there are a range of other considerations.

Best interests of the child, as we understand it, is required to be a primary consideration but not the only consideration and there were a variety of other circumstances and considerations that needed to be taken into account including, for example, the groups with which people have turned up.

People often wanted to stay together as a group even though one of that group was an unaccompanied minor. The Inquiry is not convinced that this is a good reason for an unaccompanied child to remain in detention and, to the best of the Inquiry's information, there has been no instance of a State child welfare authority recommending that a child stay in detention so that he or she can remain with his friends.

The Department also suggested that the release of unaccompanied children into the Australian community may expose them to people smuggling rings in Australia:. Account must be taken of factors such as The Inquiry does not accept that this is an issue of real concern in Australia for unaccompanied minors for whom the Minister remains the guardian.

There is no evidence to suggest that these children are at serious risk of 'falling into the hands of people smugglers'. The Department states that between 3 December and 16 May , 25 unaccompanied minors were assessed against MSI Eight children were transferred to alternative places of detention, one was granted a bridging visa, nine turned 18 or were re-assessed as being over 18 , three were removed from Australia and four were assessed to be a high risk of absconding and therefore remained in detention facilities.

It is important to note that while these MSIs represent a positive development in the Department's approach to unaccompanied children, they do not represent any change in thinking regarding the detention of children with families. Many of the submissions to the Inquiry report the views of children who have spent time in detention centres.

A feeling of darkness came on me in the detention centre, and all my hope disappeared. My world has been dark ever since. It was like a desert It felt like we were in a cage. We could not go anywhere with all the fences and that stuff It was like jail as there was no care The children were crying. My father is so angry and I don't know why It was a bad experience. There were no times when we were happy there We were at war in Afghanistan because of the Taliban and we thought we have come to another war here.

In the detention centre, always soldiers all around us. Oh my God, can the Taliban get us again? It was so hot, so very hot and lots of flies and we needed a fan. The whole condition in the camp is really, really bad, people are really stressed. Those people they are there for a long time they get really agitated. They used to come to [dining room] for example Three Afghan unaccompanied children who had spent some time in detention before being recognised as refugees and released into the community have the following views about detention:.

I think there should not be any detention for children at least. All these Afghans that are spending months or years in detention, they have not done anything wrong, they are not criminals and they should listen to them.

But there should not be any detention for children. They should be free. I actually experienced lots of negative things in there. For the time that I was there, I remember that there were young children who were living with adults, always having nightmares and I could see and I could hear them screaming at night time and once I saw with my own eyes that someone had broken a window and with that glass cut himself. And I have also witnessed someone who cut himself with a blade.

I experienced a lot of violent people, experiencing negative things, especially when they put us with people who actually spend one year or one and a half years there. They are the people who experienced lots of negative things who have lost their mental power and they always talk about the negative things that they experience.

For example, in my case, even though I spent only three months in that detention centre, I was in contact with a man who spent actually one and a half years of his time in Australia detention centre and he asked me he said 'you're a new person, you are a new arrival so you don't know what you will be going through' and then he was telling me about all the negative things that he will do and that made me even more heartbroken and even more scared and afraid and I just remember that another fellow, he had to go and visit a friend who is in mental hospital because he spent quite a long time in detention centre and he lost his mind and he ended up in hospital.

An Australian teenage girl who made friends with children in detention describes their experience as follows:. They believe that the worst thing about detention is the psychological trauma of waking up and not knowing why exactly you are there, how long you are going to be there for, and what is going to happen if you are eventually given a TPV or sent back; so that is the worst.

Also, boredom, not having formal schooling so therefore spending all day thinking about what has happened to you and what can happen to you. Being called by numbers makes them dehumanised, makes them feel like animals, not like individuals, not like people - that, again, one of the worst things.

Also, being surrounded by depression - constantly depression makes them also depressed. By seeing older people give up it shows them that the only way is to give up. Child protection authorities in States that have immigration detention centres have said, on various occasions, that the detention environment has a seriously detrimental impact on children.

While many of these comments have been made in the context of assessments of particular children and families, some have also been of general application. The South Australian authorities have been the most vocal about the impact of detention on children.

The detention environment is not suitable for impressionable adolescents and in this instance it is strongly compounding their sense of persecution. Ideally children such as [names removed] should not be in detention.

Ideally a family with children should not be confined in a detention centre. DHS sent the Department an assessment report regarding Woomera dated 12 April which states at the outset that:. Detention is often represented as a 'place' and as such a passive concept, however such a concept greatly underplays the impact of such facilities on the physical, psychological and emotional wellbeing of children, young people and their families.

While each family has particular issues and difficulties, an overwhelming feature of the assessments was the clear evidence of the detrimental effects of the detention environment on the children both directly, including inadequate developmental opportunities, exposure to violence and adult despair and removal of hope for their futures , and indirectly, as a consequence of parental mental illness.

That no child should be kept in the Woomera centre as it is an environment that fails to provide care and protection. Furthermore, in a recent independent assessment of child protection in South Australia the Layton Report , the chapter on Children in Detention states that:. Whether it be indirect or direct, the combined effect of the circumstances of immigration detention of children in detention centres is incompatible with them being in a situation which is in their best interests, instead the detention centre environment is positively detrimental to their well being.

In assessing the mental health of unaccompanied children in Port Hedland and Curtin detention facilities, the Western Australian Department for Community Development states that:. The best interests of children include that their development should, wherever possible, occur in a family environment within their own community. The Department is of the view that the recommendation of the Western Australian authority is not incompatible with the provision of care to children in a detention facility.

The Inquiry accepts their assessments, which are supported by the overwhelming weight of evidence. While the Government has asserted that public opinion supports Australia's detention policy generally, the Inquiry is not aware of any evidence suggesting support for the detention of children.

Many of the written and oral submissions received by the Inquiry from human rights organisations, children's organisations and mental health experts argued that detention could never be in the best interests of the child. The following are just three examples of the many comments to this effect: It is self evident in the material below on psychological and social wellbeing that if the primary consideration were the best interests of the child, none of the children in these interviews would have been placed in detention.

Unsurprisingly, medical and child welfare experts have concluded that holding child asylum seekers and their parents in immigration detention is contrary to the child's best interests. In short, our submission is that the current arrangements for detention of children in Australia fall conspicuously and depressingly short of meeting our international obligations to act in the best interests of the child, which is clearly the guiding principle on this issue.

The relevant rights set out in international laws and guidelines recognise the distinct vulnerability, and the need for protection and care of children. The current arrangements for detention of children in Australia in many respects do not meet those basic requirements If appropriate arrangements are made for the care of unaccompanied children in the community, it is difficult to imagine that it would not be in their best interests to be released from detention at an early stage.

As the Refugee and Immigration Legal Centre stated:. In our experience, we have not noted any circumstance where it has not been in the best interests of the child to be released, and we are working very closely with agencies with expertise in terms of care and welfare of children once released, including Hotham Mission.

The Inquiry agrees with the Department's statement that 'determining what is in the best interests of the child will involve a consideration of the relevant circumstances of the individual child in light of the rights established by the [CRC]'. The law makes no distinction between whether a person is an adult or child, nor whether a child is accompanied or unaccompanied by his or her parents. There is a preponderance of evidence suggesting that institutionalisation is generally bad for children.

State child welfare authorities, community groups and children who have been in detention all talk about the detrimental impact of the deprivation of liberty generally and detention in Australia's immigration detention centres in particular.

The evidence recounted throughout this report confirms that detention has a negative impact on children in a variety of areas. In the Inquiry's view, the clear evidence that detention can have a detrimental impact on the well-being of children suggests that the best interests of the child have not been a primary consideration in the introduction and maintenance of laws that require the detention of children irrespective of their circumstances.

This is an issue considered further in Chapter 17, Major Findings and Recommendations. Further, if the best interests of the child were a primary consideration in creating and applying the detention laws then those laws would permit the result that neither children nor their parents would be held in immigration detention except as a measure of last resort and for the shortest appropriate period.

Thus the oft-stated premise that the best interests of the child require that children be detained because their parents must be detained, is the perverse result of inappropriate detention laws. However, those laws do permit the Department to make decisions regarding the location in which children are detained. In the Inquiry's view the Department has, on certain occasions, failed to make the best interests of the child a primary consideration when making some of these decisions.

For example, decisions as to which detention centre a child should be detained in do not appear to have given sufficient priority to the fact that a child may have a parent or relative in the community near one particular detention facility. Further, the delay in making arrangements for the regular transfer of unaccompanied children into home-based detention, and the failure to make such arrangements for children accompanied by their parents, suggests a failure to give adequate weight to the best interests of the child when determining where to detain children see further section 6.

The Inquiry is not of the view that the Woomera housing project provides the same quality alternative location both because the restrictions on movement remain and because the rules of participation require fathers to remain in the detention centre separate from the rest of their family see further section 6.

However, even that initiative took until to introduce. The housing projects in Port Augusta and Port Hedland only opened in Finally, while the development of MSI in December demonstrates that the Department has put policies in place to ensure that the best interests of unaccompanied children are a primary consideration in future decisions relating to their location and care, the delay in formalising this policy is of great concern.

Issues relating to the best interests of the child and the length of detention are discussed in section 6. The issue of the best interests of the child is discussed further in Chapter 17, Major Findings and Recommendations.

The protection of personal freedom is one of the most fundamental human rights protections. While there are strict rules about the circumstances under which any person may be deprived of his or her liberty, international law regards the detention of children as an especially drastic measure - a matter of last resort.

The principle that detention of children should be a last resort article 37 b read with the 'best interests' principle article 3 1 , means that Australia is required to explore all alternatives to detention prior to detaining a child, irrespective of their immigration status, and with the best interests of the child as a primary consideration.

Therefore, Australia, as a party to the CRC, has the obligation to ensure that detaining a child is not the first or only option available to respond to a particular policy or legal problem. The UN Committee on the Rights of the Child has emphasised the importance of finding alternatives to the detention of children.

The UNHCR Detention Guidelines also state that 'minors who are asylum seekers should not be detained' and that 'all appropriate alternatives to detention should be considered in the case of children accompanying their parents'. Unaccompanied minors should not, as a general rule, be detained. Where possible they should be released into the care of family members who already have residency within the asylum country.

Where this is not possible, alternative care arrangements should be made by the competent child care authorities for unaccompanied minors to receive adequate accommodation and appropriate supervision. Residential homes or foster care placements may provide the necessary facilities to ensure their proper development, both physical and mental , is catered for while longer term solutions are being considered.

The Department appears to be of the view that the principle of detention as a last resort under the CRC will be satisfied if legislators have considered other policy alternatives prior to enacting mandatory detention legislation:. Mandatory detention was and is seen as the legislative last resort in the context of Australia's universal visa regime [emphasis added]. The Inquiry does not accept that the mandatory detention of children is necessary to achieve legitimate policy goals.

The Commonwealth's failure to conceive of a means of achieving its policy objectives without the detention of children does not automatically make it a 'last resort' under the CRC. The basic premise of international human rights law is the protection of the rights of each and every individual. The CRC requires an assessment of whether or not it is necessary to detain a particular child. As discussed below, the mandatory detention regime, by definition, denies the opportunity for any such assessment.

I do note that there has been more of a practical tendency to release unaccompanied minors in recent times from detention and there are very few, if any, remaining in detention now, but nevertheless, what remains in Australia is a system which not only mandatorily detains adults, but children. It is absolutely and abundantly clear in international law and policy that detention should only be used as a last resort for children. Our experience in this country is that is not the case, the presumption has been to detain Detention as a last resort does not mean that Australia can never detain children; it means that Australia has the obligation to consider whether there are alternatives to detention, taking into account the circumstances of each individual case.

One of the difficulties in the Australian legislation is that it does not permit an individual assessment as to whether detention is necessary in the case of adults or children. Section of the Migration Act is clear that all unlawful non-citizens arriving anywhere other than an 'excised offshore place' must be detained. Several submissions to the Inquiry argue that Australia's mandatory detention laws necessarily mean that detention is not a last resort for children.

The detention of child asylum seekers under this system is not 'a measure of last resort' and is not 'for the shortest appropriate period of time'. On the contrary it is the first and only resort and for an indefinite period of time. It therefore violates this provision of the Convention. I think the Convention on the Rights of the Child is very clear: article 37 in terms of detention being a last resort quite clearly shows that if it is mandatory it cannot be a last resort.

The blanket application of mandatory provisions to detain children who arrive in Australia without a visa means that, as a matter of logic, detention is the first resort under Australian law. As explained earlier in this chapter, although the Migration Act does not permit any discretion as to whether to detain unauthorised arrival children, it does permit some discretion as to where to detain. This means that children and their parents could, theoretically, be detained in any place in Australia - including homes in the community.

While the transfer of children to home-based places of detention may lessen the seriousness of a breach of the principle of detention as a measure of last resort, it cannot nullify it. The Inquiry also notes that, over the period of the Inquiry, children accompanied by their parents have not enjoyed the possibility of detention in the Australian community with their family, other than in one exceptional case. While the Woomera housing project offered a more child-friendly environment than the Woomera detention centre, it failed to mitigate the breach of detention as a last resort because the fundamental aspects of detention remain - all aspects of life in the project were controlled by ACM or the Department.

Indeed, one of the most important aspects of a child's life, family unity, was directly inhibited by the ineligibility of fathers and, until 2 December , boys aged over 12 to participate in the project. As explained earlier in this chapter, since September , when a family or unaccompanied child is intercepted by the Australian Navy, or lands on Christmas Island, Ashmore and Cartier Islands or Cocos Keeling Islands without a visa, detention is strictly speaking discretionary.

However, as a practical matter the children have either been detained on Christmas Island, or transferred to detention facilities in Nauru or Manus Island in Papua New Guinea. The Inquiry is unaware of any instances where these children have been presented any option other than detention in one of these three facilities. Therefore, there is no evidence of detention being anything other than the 'first resort'. Detention is the first, and only, option available to children on arrival in Australia if they have no visa.

The laws do not provide a presumption against detention of children nor do they permit a case-by-case assessment of the need to detain in the individual circumstances of the child.

While the Migration Act does not allow for any discretion by the Department as to whether to detain a child, it does permit some discretion as to where to detain children. This may have some impact on the seriousness of any breach of the 'last resort' principle. The Inquiry acknowledges that the Department has made efforts to implement alternatives to detention by transferring most unaccompanied children to home-based detention since January , and some mothers and children to the Woomera housing project since August The issuing of MSIs and in December relating to unaccompanied children and alternative places of detention suggests an improved approach by the Department within the framework of mandatory detention in the future.

However, the Inquiry notes that these initiatives are recent developments and in the case of the Woomera housing project some of the more problematic aspects of detention, namely control over day-to-day decisions of a family, remain.

In any event, the Inquiry re-emphasises that home-based detention and the Residential Housing Project are alternative forms of detention rather than alternatives to detention, and it is the latter that is required by the 'last resort' principle of the CRC. The CRC states that, in the event that a child is detained, that detention must be for the 'shortest appropriate period of time'. Although it does not set out the precise permissible length of detention, when read with the provision that detention must be a last resort, there is a positive obligation to investigate the possibility of noncustodial options as soon as possible after a child has been detained.

In the context of Australian immigration law this means that the Commonwealth must ensure that children detained pursuant to Australia's mandatory detention laws are released as soon as possible. The Department has urged the Inquiry to interpret the 'shortest appropriate period' and other elements of article 37 in the context of the purposes of immigration detention which are:. The shortest appropriate period of time of immigration detention is the shortest period in which the legitimate purposes of detention can be met - that is, until the detainee is granted a visa or removed from Australia.

This is precisely the requirement specified by s of the Migration Act for release from detention. However, this interpretation misunderstands the fundamental obligations in the CRC to actively assess the continuing need to detain a child in the individual circumstances of the case. Gerry Hand in under the Hawke Government are, in essence, the same as those put forward by immigration minister The Hon.

Philip Ruddock ten years later under the Howard Government. Successive governments and other supporters of Australia s mandatory detention policy have claimed that it is an integral part of the highly developed visa and border controls necessary to maintain the integrity of our world class migration and refugee resettlement programs. They point to the problems caused by asylum-driven migration in European countries.

They point out that where detention has been prolonged this has been by detainees own actions and determination to remain in a more prosperous country. Detainees have been free to leave at any time. Opponents have questioned the policy s deterrent value, given that it pre-dated the most recent and largest wave of boat people. They claim that unauthorised arrivals break no law by seeking asylum, and that there is no queue to jump in countries of first asylum like Pakistan.

They argue that the policy has shamed Australia internationally. They claim that prolonged detention has been psychologically damaging, lacking in compassion, and unnecessarily punitive given that the boats stopped coming in August They further claim that the policy has been administered in an inflexible way through an out of control department with a compliance culture.

See links to NGO and advocate groups below for comment. UNHCR statistics show that Australia has experienced fewer asylum claims than other industrialised countries, especially the high asylum countries of Western Europe. Australia received claims in , in , and in The UK received asylum claims in , 60 in , and 40 in Australia is the only country that has mandated the detention of all unauthorised arrivals throughout the refugee determination process.

Other countries have however in recent years expanded their use of detention, as part of tougher border control and asylum regimes. In Australia, according to the departmental annual report , a total of people spent some time in immigration detention during The UK Home Office does not publish annual cumulative figures on people held in immigration detention. A recent Amnesty International report on the detention of asylum seekers in the UK estimated the number of people detained in immigration detention in the UK in to be 27 , and in to be over 25 As noted in reports prepared for the European Commission as part of the EU project to harmonise asylum practices , asylum seekers in Western European countries are now commonly detained during fast track or accelerated processing, if their claims are deemed manifestly unfounded or if they come from or through a country deemed safe.

They are increasingly being detained at the end stage of processing if they are refused refugee status. Failed asylum seekers who have been living in the community are also being detained in attempts to meet government-set removal targets. The UK Government, through its Five year strategy for asylum and immigration, presented to parliament by Home Secretary Charles Clark in February , is developing removal centre capacity currently about to meet a target of removals to exceed the number of unfounded applications by the end of so that we can start making in-roads into the backlog.

The aim over time, as asylum intakes fall and removals are increased, is to move towards the point where it becomes the norm that those who fail can be detained. Besides lower numbers of asylum claims, Australia has also experienced much lower levels of illegal immigration. Australia however has much larger and more highly developed official or managed migration and refugee resettlement programs than most other countries.

All countries have faced difficulties with overcrowding, mental health issues, psychological disturbance and self-harm by detainees in immigration detention or removal centres. Refugee support groups and other concerned groups, such as the UK Institute of Race Relations , have complained about the coercion involved in voluntary removals, and the brutality and humiliation involved in forced removals.

Researchers, for example Matthew Gibney , have questioned whether removal targets such as those that have been set in the UK are feasible. As the recent Amnesty International report shows, immigration detention has become a focus of protest and dissent for refugee and human rights advocates in the UK.

The removal of failed asylum seekers, many of whom have been living in the community for years, has also become a politically contentious and sensitive issue in countries like the UK and the Netherlands. The non-removal of failed asylum seekers who have joined growing illegal populations in these countries however has long been a more salient political issue; it has reduced public confidence in asylum systems and procedures. Majority public opinion in countries affected by asylum seeker inflows favours tough border control, detention and removal policies; as shown in recent polling in the UK for example.

Governments in all industrialised countries are having to find ways to accommodate failed asylum seekers because detaining them for prolonged periods and removing them is difficult and costly for all concerned. Backlogs of asylum seekers and growing illegal populations have commonly been addressed in Western European countries through amnesties.

The last general amnesty in Australia was in ; amnesties have since been considered inimical to the effective management of migration. In Australia, what could be called quasi-amnesties have been created to accommodate individuals or groups of people for whom detention and removal has been too hard or too harsh.

This has been done by creating special visa classes for example for Chinese students who were in Australia at the time of the Tiananmen Square demonstrations in , or by using the immigration minister s non-compellable powers of discretion to grant visas for example for a number of East Timorese who came to Australia as visitors in the early s and subsequently applied for asylum.

All countries are trying to speed up the processing of asylum claims. In June , the Committee of Ministers of the Council of Europe, within the framework of the supervision of the execution of the M.

In March , CPT acknowldeged after its visit that regrettably, once again, far too many of the places being used to detain migrants offered conditions of detention which are an affront to human dignity. The law states that the authorities shall make efforts to guarantee access to health care for detained asylum seekers.

However, substantial medical staff shortage has been observed in PRDFs already since the previous years. The CPT has long urged the Greek authorities to improve the provision of health-care services in all immigration detention facilities where persons are held for periods of more than a day or two.

The general lack of medical screening upon arrival and of access to health care have been compounded by the severe shortage of resources, including staffing resources, and the complete lack of integrated management of health-care services; combined with the lack of hygiene and appalling detention conditions, the Committee considered that they even presented a public health risk. In the light of the outbreak of COVID, the Greek Ombudsman asked from the competent authorities to provide further details regarding protection measures and relevant actions aiming to prevent the spread of corona virus in detention centers, following an intervention from GCR.

Official statistics demonstrate that the situation has not improved in and that pre-removal centres continue to face a substantial medical staff shortage. She warned increased unrest, anxiety, anger and self-harm — including among young children — would be the inevitable outcome of longer periods in detention. Federal opposition spokesman for immigration Richard Marles described the trend as "disturbing", and accused the government of "reckless and negligent" management of asylum seeker issues.

Greens immigration spokesperson Sarah Hanson-Young said the Abbott government's refusal to grant protection visas for people found to be refugees was "solely to blame".

She said the government should increase asylum processing in the region and boost Australia's intake of refugees. Executive director of the Refugee and Immigration Legal Centre David Manne said the onus was "squarely on the government to explain why so many people should be detained for so long".

Asylum seekers' time in detention soars.