UNHCR Submission On The Migration Amendment Bill 2020

The UNHCR Multi-Country Representation in Canberra has recently made a submission to the Senate Legal and Constitutional Affairs Legislation Committee’s Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

The full text of the submission is now available here.

In summary, seeking asylum is not a criminal act. It is a universal human right enshrined in international law. Australia’s policy of mandatory detention has resulted in hundreds of asylum-seekers, refugees and stateless persons being kept in immigration detention for years on end, with no apparent end in sight. UNHCR acknowledges the importance of maintaining the order of immigration facilities and prohibiting the entry of illegal items to ensure the safety and security of detainees, visitors and staff. However, detention arrangements should not be punitive nor should facilities accommodating asylum-seekers and refugees operate like prisons or jails.

As at January 2020, more than half of the detention population in Australia comprised asylum-seekers, refugees and stateless persons. While the average period of detention for asylum-seekers is approximately 2.5 years, some asylum-seekers, refugees and stateless persons have been detained for significantly longer than this average, with some up to twelve years and nearly sixty persons in detention for between six and eight years.

Of particular concern to UNHCR is the re-detention of some 250 asylum-seekers and refugees medically evacuated from Papua New Guinea and Nauru whose detention does not appear to be based on any individualised assessment of what is a known population for the Government. Some have now been re-detained in Australia in excess of three years, despite residing in the community prior to their transfer to Australia and this is in addition to the years already spent in detention in Nauru and Papua New Guinea. The impact of long-term detention on the physical and psycho-social well-being of those detained is well-known and documented. It is also demonstrated graphically by continued reports of self-harm and suicide in immigration detention facilities across Australia.

Respecting the right to seek asylum entails instituting open and humane reception arrangements for asylum-seekers and refugees, including safe, dignified and human rights-compatible treatment. Heavily securitized detention environments coupled with enhanced search and seizure powers, in particular those involving strip searches and the use of detector dogs are likely to have significantly adverse consequences for psychologically vulnerable persons in detention. Because of the experience of seeking asylum, and the often traumatic events precipitating flight, asylum-seekers often experience psychological illness, trauma, depression, anxiety, and other physical, psychological and emotional consequences. Detention can and has been shown to aggravate and even cause the aforementioned illnesses and symptoms.

The special circumstances and particular needs of asylum-seekers in detention must be taken into account when considering the adoption of measures that significantly enhance detention security arrangements that are likely to have a disproportionately adverse impact on such persons and the enjoyment of their rights under international law. For many asylum-seekers and refugees in detention, smartphones are a lifeline, providing an essential means for them to give and receive vital information, communicate with separated family members, communicate with legal representatives and health providers, gain access to essential services, feel safe and secure, and reconnect to the local, national and global communities around them.

Every effort is needed to resolve protracted cases, including through practical steps to assess the necessity of continued detention in conformity with international human rights and refugee law, and to pursue alternatives to detention wherever possible. This is particularly so in the current context, as the COVID-19 pandemic is presenting States with an extraordinary and unprecedented public health emergency. As recently observed in UNHCR’s submission to the Parliamentary Joint Committee on Human Rights, doctors and medical associations in Australia and around the world have raised concerns about the risk of spread of COVID-19 within detention centres. UNHCR has strongly recommended that those in immigration detention for reasons related to their lack of legal status should be considered for release without delay.

UNHCR is concerned that the proposed measures will permit the unreasonable restriction of the enjoyment of the rights guaranteed to asylum-seekers, refugees and stateless persons and would further weaken the ability of Australian law to ensure the protection of such persons in accordance with relevant international law and standards.

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