The political and policy response to boat arrivals has typically been twofold: emphasising the importance of ensuring that those arriving unauthorised by boat meet the Convention definition of a refugee see glossary in Appendix C and returning those who do not; and attempting to stop further flows of people from reaching Australia in this way. For instance, successive governments have focused on engaging other countries and international organisations in an attempt to stop the flow of refugees at the source, or on arranging for refugee processing to occur elsewhere.
In —78 approaches were made to regional governments to hold vessels in transit to allow refugee processing in camps. The Government also increased the number of Indochinese refugees accepted for resettlement from camps in Southeast Asia in an effort to reduce the number of people likely to attempt the journey by boat.
The Plan required first asylum countries in South-East Asia to continue to grant temporary refuge to all asylum seekers and to screen all new arrivals against internationally-recognised criteria to determine whether they were bona fide refugees.
Persons deemed not to be refugees were returned to their country of origin; persons in camps throughout the region who arrived prior to cut-off dates for screening were resettled in third countries along with those accepted as refugees; and the orderly departure arrangement was expanded as the safest and preferred means of departure from Vietnam.
The s through to the mid s saw an increase in policies aimed at deterring asylum seekers from coming to Australia by boat including the introduction of mandatory detention laws, the excision of external territories from the migration zone and offshore processing for those arriving at such places and the introduction of temporary protection visas.
Upon coming to power in November the Rudd Government ended some of the policies put in place by the Howard Government to discourage unauthorised arrivals and initially focused its attention largely on border security measures designed to disrupt the work of people smugglers. As boat arrivals continued to increase in the lead up to the federal election, the Gillard Government turned its attention back to policies designed to deter asylum seekers arriving by boat, proposing a regional solution built on a regional processing centre in East Timor.
However, this proposal was soon abandoned in favour of an arrangement with Malaysia, whereby up to boat arrivals would be sent from Australia to Malaysia, and refugees would be resettled to Australia from Malaysia over four years. This arrangement was signed by both countries on 25 July The report of the Panel, presented to the Government on 13 August , made 22 recommendations on possible policy options.
The Gillard Government acted swiftly in implementing some, although not all, of the recommendations of the Expert Panel. In particular, it acted quickly to reopen offshore processing centres in the Pacific—this was a significant policy shift for Labor discussed in further detail below.
The Gillard Government also focused its efforts on removing people who are found not to be owed protection, and those who make no protection claim. Rather, they were asylum seekers who had arrived by air, been processed onshore, and had their claims rejected by both DIAC and the Refugee Review Tribunal. Large numbers of Sri Lankan boat arrivals have also been removed from Australia in recent months, both voluntarily and involuntarily.
Prior to unauthorised boat arrivals were held in detention under the Migration Act , but on a discretionary basis. Mandatory immigration detention for unauthorised arrivals was introduced by the Keating Government in under the Migration Amendment Act , as part of the codification of migration policy. The intention behind the extension of mandatory detention to all unlawful non-citizens was to effectively regulate not only the determination of refugee status but also the removal of people who do not establish an entitlement to be in Australia.
Detention is mandated for all unlawful non-citizens in Australia, and historically people in immigration detention have been predominantly visa overstayers, unauthorised air arrivals, and those whose visa has been cancelled, rather than those who have arrived unauthorised by boat. The exceptions to this in the past have been the period between and , which saw a spike in the numbers of boat arrivals in detention, and the period from the middle of to the present as boat arrivals have increased once more.
Outside of these periods, the largest single category of persons in immigration detention has generally been visa overstayers. Despite this, the policy debate surrounding mandatory detention has consistently focused on its application with regards to asylum seekers arriving by boat.
The report of a national inquiry into children in immigration detention , which was highly critical of the mandatory detention of children.
The Howard Government rejected the findings and recommendations of the report and in June reaffirmed its commitment to the policy of mandatory detention, including that of children. The Government remained committed to mandatory detention along with the excision of territory for migration purposes, offshore processing and, if necessary, turning boats around at sea.
Upon coming to power in November the Rudd Government took a new policy direction regarding the mandatory detention of unauthorised arrivals. On 29 July the then Minister for Immigration and Citizenship, Senator Chris Evans, announced an overhaul of the policy of mandatory detention. Unauthorised arrivals are detained on arrival for identity, health and security checks, but once these have been completed the onus is on the Department to justify why a person should continue to be detained.
Ongoing detention is justified for people considered to pose a security risk or those who do not comply with their visa conditions, but policy is for the majority of people to be released into the community while their immigration status is resolved. The policy also states that children, and where possible their families, will not be held in immigration detention centres. Despite this change in policy rhetoric however, long-term mandatory detention has continued under the Rudd and Gillard Governments.
The increase in boat arrivals since has placed significant pressure on immigration detention facilities. The Government initially responded to this pressure by moving detainees from Christmas Island to mainland detention facilities, and announcing the expansion of existing centres along with the opening of new centres. Since then, the Government has introduced several other significant policy changes and initiatives in response to the increase in arrivals.
In October the Immigration Minister announced that children would be progressively moved out of detention facilities into community-based accommodation by June Under community detention arrangements people are able to live in the community, supported by community organisations, with the requirement that they live at a certain address and report regularly to the immigration department. In the pre-election environment of , the Howard Government introduced legislative changes allowing some of Australia's territory to be excised from the migration zone in order to discourage non-citizens from arriving unlawfully in Australia by boat.
Any claims made by those people for refugee status could then be processed by the Immigration Department outside the jurisdiction of Australian courts, and with no guarantee of a resettlement place in Australia. These border protection measures were officially known as the Pacific Strategy, although they became colloquially known as the 'Pacific Solution'. As a result, any unlawful non-citizen attempting to enter Australia via one of these islands was now prevented from making a valid application for a protection visa unless the Minister for Immigration determined that it was in the public interest for that person to do so.
On 19 September Australia signed an Administrative Agreement with Nauru to accommodate asylum seekers for the duration of the processing of their applications. Australia also signed an MOU with Papua New Guinea on 11 October , allowing the construction of a processing centre to accommodate and assess the claims of asylum seekers on Manus Island. Claims were not processed under Australian law and claimants had no access to legal assistance or judicial review. Rather claims were processed by Australian immigration officials, and in some cases UNHCR officials in accordance with the criteria of the Refugee Convention.
Persons who were found to be owed protection were eventually resettled either in Australia or in a third country with the emphasis being on trying to find resettlement solutions in a third country in preference to Australia. Some asylum seekers were also processed on the excised offshore territory of Christmas Island. Between and February a total of people had been detained in the Nauru and Manus facilities.
Of these, 70 per cent were ultimately resettled in Australia or other countries. Of those who were resettled around 61 per cent were resettled in Australia. The abandonment of offshore processing proved to be temporary. In response to a significant increase in arrivals, and as recommended in the Report of the Expert Panel on Asylum Seekers, the Gillard Government announced its decision in August to resume offshore processing of some asylum seekers arriving by boat under arrangements with the governments of Nauru and Papua New Guinea PNG.
It remains to be seen whether this strategy is only pursued in the short-term as suggested by the Expert Panel on Asylum Seekers, or whether it becomes entrenched as long-term policy. In October , the Howard Government introduced Temporary Protection Visas TPVs for asylum seekers who arrived unauthorised and were subsequently assessed by the immigration department to be refugees. Holders of TPVs were provided with access to medical and welfare services, but given only reduced access to settlement services, no access to family reunion, and no travel rights.
If a person who held a TPV left Australia their visa could be cancelled. Approximately 11 TPVs were issued between and , and approximately 90 per cent of TPV holders eventually gained permanent visas. In May the Rudd Government announced that it would abolish the system of temporary protection. Some, including members of the current Opposition, have attributed the recent increase in the number of unauthorised boat arrivals to the abolition of TPVs along with the ending of the Pacific Solution , claiming that TPVs were an effective deterrent to boat arrivals.
They argue that it actually led to an increase in women and children undertaking the risky journey to Australia by boat, as TPVs did not provide family reunification rights meaning that families could not rely on men travelling to Australia alone and bringing their wives and children out to join them once they had been granted protection :.
Following that there was a small drop-off in arrivals. From December to November there were only 2, arrivals, as compared with 3, before that. So there was a small drop of about to 2, From December , a year after its introduction, until November there were 6, boat arrivals in the second year of the operation of the TPV regime. The claim that the TPV introduction halted arrivals is not supported by the evidence.
Our figures show that in that period the percentage of women and children went from around 25 per cent to around 40 per cent. We saw more women and children taking the very perilous journey to come to Australia by unlawful boat arrivals.
However, if found to be refugees they would not be issued with permanent protection visas, but issued with bridging visas, possibly without work rights. I fled Iran in search of freedom for my faith. I would have never chosen Australia if I'd known about this new situation. My three-day journey on the boat was horrifying. I saw death in front of my eyes. Everybody risked their lives to get here - but now [the authorities] say: 'We don't care how you arrived here, you will have to go to Papua New Guinea whether you like or not.
We are being forced to go to PNG and this is unfair. I am really depressed. I was the only child in my family, and we didn't have any financial problems in Iran. If they send me to PNG, I will commit suicide there. My parents won't ever see me again. He decided to leave last year after receiving threats when he stood in local elections. Australia was not my first choice of destination - that would have been Italy.
But my idea was to get out of the country as soon as possible as I felt very insecure at that time. I learned through business contacts that someone was organising a boat to Australia. When I went to meet the main guy, he was really reassuring. I was sort of aware it could be dangerous, but he said it would be safe and quite comfortable. I did have a little money of my own, but most of it came from loans from friends. The journey was much more dangerous than I had imagined. We were taken out to sea in a fishing boat and then transferred to a larger vessel with others on board.
It was meant for just 40 but in all, there were people. Those in charge would only give you food once a day, and there was never enough for everyone. It was down to luck whether you got any food or not. The drinking water ran out after 10 days.
I can honestly say I did not know whether I would live or die. I had no idea where we were as all we could see was water. On the 17th day, we spotted land and told the crew. As we drew close we were intercepted by an Australian navy vessel. We came to know it was the Cocos Islands, controlled by Australia. The principal international agreements relevant to Australia's immigration detention arrangements are:.
Article 26 of the Convention states that refugees lawfully in a territory should have the right to choose their place of residence and move freely. Article 31 states that States shall not impose penalties on refugees on account of their illegal entry. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
However it is acceptable:. Successive Australian governments have maintained that it is a fundamental legal principle, in domestic and international law, that in terms of national security, the State determines which non-citizens are permitted to remain and the conditions under which they may be removed.
The rationale. The fundamental rationale for detention in Australia, especially of unauthorised boat arrivals, has been that it is necessary in order to maintain the 'integrity' of the offshore migration including refugee program:. If you build a system which requires individuals to present to the Australian Government in advance of arrival-through one form or another-to seek approval for entry and if the system says that not following that requirement will be ignored on arrival, that undermines our universal visa system.
Australia's mandatory detention regime has been criticised as setting us apart from the rest of the world. However there are a number of other migration related features which also set Australia apart from the rest of the world. Australia maintains a large migration program, which is managed offshore, of skilled as well as family migrants, and maintains also a large offshore humanitarian entry program.
Australia operates a universal visa system. It maintains and manages entry as well as exit arrivals and departures data like no other country.
And Australia has avoided the worst of social problems such as slave labour associated with large-scale asylum seeker inflows. Australia has no land borders. The importance that was attached by the previous Labor Government to the role of detention in immigration control is evident in statements by the then Immigration Minister the Hon.
Gerry Hand in debates surrounding the introduction of the Migration Reform Act The importance that has been attributed by governments to immigration control in maintaining public support for Australia's immigration program is also shown in these debates:. The Government is determined that a clear message be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community Australia cannot afford to allow unauthorised boat arrivals to simply move into the community.
The essential rationale by successive governments for detention has been, in other words, that detention is a part of a system of immigration planning and levers and controls that work, that are well-managed, and that have 'integrity' i. Practical considerations. It has also been argued that releasing people into the community and onto welfare would encourage thousands more people who would not qualify for visas to head to Australia.
Further background as to the rationale and perceived need for detention at the time the mandatory detention policy was being introduced can be obtained from the report of the JSCM Asylum, Border Control and Detention , and submissions to the inquiry.
Further background can also be obtained from parliamentary debates, especially during the period , when the Migration Reform Act was being debated. Critics of mandatory detention, including human rights organisations such as Amnesty International, and church groups, have argued that the policy is discriminatory in its application.
People who enter as tourists or visitors and overstay their visas and lodge refugee claims are issued bridging visas, enabling them to remain at liberty while their claims are assessed, whereas boat people are detained throughout the process.
They argue that the harshness of detention compounds the distress suffered by already traumatised and desperate people, making their eventual integration into the community more difficult. Coalitions of refugee support and church and community groups have formed to lobby against the detention of asylum seekers.
The Australian Human Rights Commission has repeatedly advised the government that its policy of mandatory detention violates voluntarily accepted international obligations. It is disproportionate and inhumane. When it is prolonged it is a gross abuse of human rights. Some have even described Australia's detention policy as a reversion to our earlier White Australia policy mentality, as indicative of the nation's deep-seated racism and 'fear of the other', and as appealing to prejudice and fostering xenophobia in the broader community.
Practical criticisms. Current criticism: the changed context. The JSCM decided in that the risk and likelihood of boat people absconding outweighed the humanitarian concerns, as well as the practical concerns, of critics of the policy. The situation presented by the current wave of boat people is however different from earlier waves, which comprised people from source countries in or close to our region.
Many of these were refused refugee status and quickly returned to their countries of origin. Most of the current wave of boat people are arriving courtesy of elaborate people smuggling operations. They are not able to be returned to the 'hot-spot' Middle Eastern countries they have come from Iraq, Afghanistan, Iran. They are being found to have a 'well-founded fear of persecution' on the basis of the credibility of their stories.
In any event, Australia does not have agreements with the countries they have originated from, or have been living in, or have transited, to take them back. An Iraqi boat person may have been living in Iran, and come via Indonesia. They are being given three-year temporary protection visas. This changed situation has been perceived as weakening the rationale for mandatory detention.
Detention may facilitate the removal from Australia of the 10 per cent of the current wave of boat people who are not being found to qualify for temporary protection visas. However, detaining people in harsh conditions, 90 per cent of whom are going to be allowed to stay, is being portrayed, including in recent months by significant by sections of the media, as pointlessly punitive. It is also being portrayed as based on the cynical objective of dissuading further arrivals.
However information material prepared for distribution in source and transit countries, designed to discourage people from resorting to people smugglers, would appear to be maximising the potential deterrent effect of Australia's mandatory detention regime.
Recent information kits have included a forbidding picture of Woomera detention centre, and the warning that illegal entrants are held in detention far from Sydney. Overseas comparisons. Not surprisingly, the countries with detention policies and practices most similar to Australia's are the other major countries of immigration, the US and Canada.
Tough legislation, designed to weed out and discourage 'economic refugees', including mandatory detention in a range of circumstances, was introduced in the mids in the US following rapid increases in asylum seeker numbers in the early s, largely from Latin American, Asian and African countries. At the end of the backlog of asylum claims in the US stood at In , 41 applications were lodged, down from 84 in There are currently about 20 people in INS detention, about a third of whom are asylum seekers.
Under the Illegal Immigration Reform and Individual Responsibility Act , asylum seekers who arrive at airports or other ports of entry are automatically detained while INS officers determine whether they have a 'credible fear' of persecution. Those who fail the test are returned to their home countries.
Those who 'pass' are detained in INS detention. Also detained are people who lodge 'defensive' asylum claims, i. Seventy five per cent of those paroled in were reported as attending their claim hearings. Put another way, 25 per cent disappeared into the community. The INS operates 9 detention centres itself, and 6 more are run privately.
In addition, the INS rents 'thousands' of beds in 'hundreds' of jails nationwide. It has been estimated that more than half of INS detainees are in private state prisons and county jails. Of the immigration countries, Canada has been most generous to asylum seekers and has maintained the least tough detention regime. However following public consternation at the arrival of boat people mainly from China over the last few years, it has toughened its detention policy. Citizenship and Immigration Canada's official enforcement fact sheet on 'Arrests and Detention' states that:.
As part of its enforcement of the Immigration Act , CIC can arrest and detain anyone who has, or may have, violated the Act when there are grounds to believe that person will not appear for other immigration proceedings or poses a danger to the public.
People arrested may be put under detention in a jail or an immigration detention centre. Their detention will be reviewed by a senior immigration officer or an immigration adjudicator who may release them under certain terms and conditions.
In a total of persons was detained. The average length of detention in jails or correctional facilities was 18 days, and in immigration holding centres 8 days. Conditions for release include 'promises' to appear at hearings, and bonds. Most boat arrivals from China are now held in detention.
It was common for asylum applicants not to show up for their claims determination process. The assumption is that they owed money for their passage and moved quickly on to the US.
About boat people arrived during the summer of , and about were held in detention while their claims for refugee status were assessed. The Swedish Aliens Act allows detention of asylum seekers on three grounds: for identification, if there is a risk the asylum seeker may disappear into the community, and if it is likely that their application for refugee status will be rejected. As in Australian asylum seekers who arrive with no or fake documents are detained.
They are however released quickly into the community once their identities are established. The average time spent in detention varies between two weeks and two months. However there is no maximum period, and rejected asylum seekers whose deportations cannot be implemented due to conditions in their home countries can face lengthy detention. Despite having more than twice as many asylum seekers per capita as Australia, fewer people are detained.
Besides at the beginning, during identification, detention is mainly used at the end of the refugee determination process to ensure departure, where this is deemed necessary. In , there were an estimated 17 asylum seekers in Sweden; the combined capacity of Sweden's four detention centres is The major 'closed reception centre' is Carlslund, near Stockholm. Of the four 'reception centres' two are near Stockholm, one near Gothenburg and one near Malmo.
Accommodation is provided for needy asylum seekers in 'reception' or 'investigation' or 'transit' centres in the form of self-contained flats or boarding-house type housing.
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