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JOINT STANDING COMMITTEE ON MIGRATION
22/01/2009
Immigration detention in Australia

CHAIR —I welcome our first witness. Please state the capacity in which you appear.

Mr Mitchell —I am the director of the international detention coalition, which is a peak international body on human rights in detention issues in 50 countries.

CHAIR —Do you wish to make a short statement?

Mr Mitchell —Yes. The international detention coalition warmly welcomes this inquiry, particularly as an opportunity to ensure that Australia’s detention policy meets our international obligations and also to put on the record human rights concerns that have been continually raised over the past 15 years. There have been really significant changes in the past three years. I have been fortunate to have worked closely with immigration in my last two capacities at Hotham Mission and the Red Cross around a lot of alternatives, including alternatives places of detention, the bridging visa releases, community detention and the community care pilot. There have been really significant changes.

The issue that I would like to raise today in the context of alternatives is the continued lack of uniformity and often fairness in the detention and bridging visa policy that exists to date. In saying that, I am really talking about the major discrepancies that exist for people that come to Australia and seek asylum and what their rights and conditions and entitlements may be. So, depending on where they arrive, when they arrive, where they lodge and where their claim is, they will have a vast array of different rights and entitlements. They may be in a mainland detention centre or on Christmas Island with different entitlements. They may be in the community with entitlements or they may be destitute in the community, as you will hear later today. I think this, together with continued ad hoc, discretionary departmental decision making and also the minister’s non-compellable discretionary powers for this client group, leaves detainees quite vulnerable.

This committee inquiry is a wonderful opportunity to look at how Australia could implement a broader reception policy as opposed to just revising our detention policy. It is an opportunity to look at the UNHCR’s guidelines on reception and detention and at how Australia can look at a legislation that incorporates detention where required for security and health purposes, which is outlined in your first report, but more importantly at how that can be used as a minimum, with clear guidelines and being reviewable and so on. The biggest fundamental question is how people can and should be cared for in the community.

In the discussion today I think the most crucial question for government is obviously how to manage the compliance of people who are released from detention or who are not detained and, equally, how to do that while maintaining welfare and dignity. The good news is that that is possible, because it is happening internationally and it is also happening in Australia in a number of pockets, like the Community Care Pilot, which is a fantastic initiative of the former government which is being supported by the current government, where government and community work together to try to get an outcome for people who are vulnerable in the migration stream. It is a fantastic initiative that has been going for two years, but it is still a pilot. The hope I put forward today is that this pilot could be explored further and could be the first resort for people who would otherwise be detained. I think it would be far more cost efficient, it meets government objectives—and we know that from the outcome so far of the Community Care Pilot—and it also maintains the welfare and dignity of people who are seeking our protection. I will leave it there. Thank you.

CHAIR —Thank you very much. I appreciate your making that short statement. We will go to questions.

Mr ZAPPIA —Thank you for your submission. Can I clarify one thing before I ask the question I want to ask. You represent 150 members in 50 countries. Is that 150 individual members or community organisations?

Mr Mitchell —Organisational members, primarily. We have about 40 individuals, who are often academics, but we have 15 Australian organisations, like the Refugee Council, that are members of the coalition.

Mr ZAPPIA —My question is: have you read our interim report that was released late last year?

Mr Mitchell —Yes.

Mr ZAPPIA —Having read that report, are there any further changes to our recommendations that you would suggest and, if so, what are they?

Mr Mitchell —I was really pleased about the report. As the chair has just mentioned, it is a wonderful step in the direction that Australia needs to go. As you outlined in the report, further review of detention is still needed, particularly on the issue of return. I have been looking at how other countries have been managing the issue of how to meet the government objective of people who have no basis to remain departing a country in the most humane way possible, and the most humane way is not detaining them to do that. I think that NGOs and the department working together, as recommended, is a priority. There are people who are detained at the moment unnecessarily, who have indicated to their case manager: ‘I will depart Australia but I am afraid to be removed by the government. If I could get on a plane by myself, I would.’ I have asked detainees: ‘Why are you in the court system? It’s not going to be successful.’ They have said, ‘I know, but I am so afraid of this forcible removal process,’ where the passport is handed over and then the country of origin is informed.

We have continually said to the minister and the department that, if they used the UK model—in which the department identifies who is sincere in their desire to depart the UK, they are made lawful and they then get on the plane and depart voluntarily—they would see a lot of people pulling out of the court system. People are quite often using the system out of fear. Obviously the 12-month issue raised some contention but I think that is an area to explore further in terms of what other countries are doing around time limits and security in certain cases.

In relation to alternatives to detention today, from reading first report, I think we need to talk about Immigration compliance. They are the primary detaining body in Australia and people in detention are primarily those picked up in the community. We really need to look at how decisions are made at that level, what guidelines they are using and the possible alternatives.

I am also particularly interested in talking about some of the existing alternatives to detention practices that are being implemented at the moment—transit accommodation, immigration residential accommodation and community detention. Alternative places of detention, which the government continue to use, were not mentioned in the first report. From my personal experience with that program, there are some concerns there. But I thought the report was a very important step in the right direction.

Mr ZAPPIA —From some quarters there has been criticism of the government’s softening of its policy towards refugees who come to this country. Given that you represent an organisation that has experience with the policies of countries overseas as well, is there any particular country whose policies would be more in line with what you might be recommending and, if that is the case, has there been any evidence over recent years that those policies have led to an influx of refugees to those countries?

Mr Mitchell —It is quite fair to say that there is no evidence internationally that detention deters. We are undertaking a research project with Nottingham university on that issue at the moment. There is a political discourse that detention can deter but there is very little evidence that it does so. Countries have harshened and softened their detention policies, but the flows of people arriving and the numbers of detainees do not often correspond to those policies. There are a few reasons for that. We tend to see boat arrivals seeking asylum who in large degrees are found to have some type of protection need, and it is very hard for any policy we implement in Australia to be comparable to potential persecution in the country of origin.

Having a harsh detention policy is not going to solve it. It has not solved it in the US, the UK and a whole lot of other countries, even in Belgium, where they have very harsh policies—they detain children. I have just spent a lot of time in Belgium and they are just now starting to introduce a similar model to Australia’s. The harsher their policies have gotten, that has not affected the flows. Obviously, the learning is that flows are better addressed through multilateral or bilateral dialogue around smuggling and so on. I and the coalition are quite interested in countries where they have acknowledged there will be some flows, that there needs to be border control and that governments of sovereign nations need to be able to determine who enters and who stays, but the process by which people are managed needs to be early intervention, as fast as possible, with the view that people who cannot remain need to be humanely assisted in that process. That is where the usual suspect, Sweden, is a very interesting model simply because the flows come and go: they do have large numbers of flows—and there are a whole range of reasons for that—

CHAIR —We will come back to that because I am going to ask you about it.

Mr Mitchell —but they actually get very good return outcomes, with people departing, and they get good enforcement of policy. At the end of the day, all countries are affected by people crossing borders undocumented, but I think there are some interesting examples in different countries of how to manage those individuals and of government getting the departure outcome when there are no grounds for them to remain.

CHAIR —Before I hand over the questioning to Mrs D’Ath, I have a sidebar question. What is the main source of the asylum seekers in Belgium?

Mr Mitchell —Primarily it is the Middle East and North Africa and also the former Soviet states.

Mrs D’ATH —You have said you are interested in talking today about the transit centres or alternative detention. In your submission you say that, despite changes in 2005, the department continues to use these old forms of alternative detention, including people being detained in motel rooms and also being transferred to the care of designated persons. Are you able to give us some examples or the sorts of numbers your organisation is seeing of alternative detention still being used?

Mr Mitchell —I have had extensive direct experience with that program because when I managed that program at Hotham Mission we were the first organisation to implement alternative places of detention on a request from Minister Ruddock at the time. I have not been directly working in Australia since June and I wrote that in August. Interestingly, the December report from the Australian Human Rights Commission stated that there were 144 cases of alternative places of detention in Australia. The majority of them may well be on Christmas Island.

The issue in the past for the department has been that, from 2004 onwards, longer term complex cases emerged and there were very few options for release of any kind particularly for someone who was undocumented and unauthorised. The 2002 migration series instructions on alternative places of detention was the only option. It was a very important first step, but it is not a practical tool and it is very outdated now. It basically says that a person in the community needs to be a designated person, so essentially they could be from a community agency such as ours or they could be a family member, which is still occurring, from reports I have heard. A family member says, ‘I will be a designated person for this detained family member,’ and a school teacher or doctor can sign that designated person arrangement. But it basically means that you are both their carer and their detainer because you are required to accompany and restrain them at all times.

It was my experience for a very long time that for people with mental health issues, the department, while trying to do what they could with very few options, were putting people in inappropriate situations. Sometimes they were on bridging visas with no Medicare and no support system. They were also in these alternative arrangements. The dialogue that I had with the department prior to my work overseas was that now we have community detention, now we have community care pilots. Those alternatives, that series of migration instructions, is dated. In fact, you need to revise it. I do not know if that has been revised; I do not think it has. The worst case they have been used for was for unaccompanied minors in motel rooms. For example, 18 months to two years ago two unaccompanied Iranian boys arrived by plane. They were brought here by an older man who said he was their uncle, but he was not. They were 15- or 16-years-old and were left at the airport. As unaccompanied minors, the minister is their direct guardian. We have such a gap in Australia around a consistent response to unaccompanied minors nationally. It is left to the discretion of the minister as well as trying to negotiate with different states on different cases. So for a very long period these two boys were placed in a motel room with two guards.

Mrs D’ATH —When you say ‘a very long period’, how long are we talking about?

Mr Mitchell —It was at least two months before they were transferred. They spent a small amount of time in a detention centre—I cannot recall which detention centre. The only option for them was a South Australian group home, because an MOU had been signed between the department and South Australia for unaccompanied minors. That arrangement occurred. My point is that that was unnecessary. Community detention was available, case management had just begun and there were some brokered funds for foster or other arrangements. I noticed in the initial report that alternative places of detention was not mentioned as an alternative option, and I think it is very important that it is included.

CHAIR —Would you mind making your answers a little shorter because we have to get through senator D’Ath’s and Dr Stone’s questions.

Mrs D’ATH —And I will try to be succinct with my questions. You talk about the suggestion of open centres and transit centres. I have two questions around that and I want to bring those two points together. The Swedish example of the refugee reception centres—having not been to Sweden, I do not know what these reception centres are like. Can you tell me how they compares to our transit centres and what you envisage as an open centre?

Mr Mitchell —I have not visited a transit centre but I have visited two residential housing centres. They are completely open centres. In fact, Minister Ruddock visited the centres. I was a Swedish case worker so I worked for the Swedish immigration department and was working in that main reception centre. Minister Ruddock did visit that centre with the view of exploring what that might mean for women and children. The difference with what we have here is, of course, that we have closed centres. In Sweden, Belgium and most of Europe and New Zealand—

Mrs D’ATH —I am sorry to interrupt, but we do have to be succinct; could you explain what the structure of reception centre is? You said that you have not been to a transit centre here so you cannot compare it. How does it compare to a residential centre?

Mr Mitchell —People are free to come and go. The similarities are that there is a case worker who is responsible for the ongoing support and oversight of that individual. That occurs in Sweden and that does occur in the residential housing here with ITACs. The only difference is that the centre is open and people can move freely. The reporting is done to the case worker and the case worker is responsible for assessing any risk. Risk is both the needs they may have and risks to the community to abscond. So there is a continual assessment made around whether a person goes from low risk to medium or high risk, and they may be detained at that point. So there is someone actually responsible for checking whether or not the person is a risk to the community.

Mrs D’ATH —I have one more question and then I will come back to another issue if we have got time after other members’ questions. Have you seen the facility at Christmas Island?

Mr Mitchell —No.

Mrs D’ATH —Because you make quite a lot of comments in here in relation to the facility.

Mr Mitchell —I have worked with lots of detainees who have been detained there and I previously worked for the Red Cross, which managed the community detention on that program.

Mrs D’ATH —Is the opposition to the Christmas Island facility because of the infrastructure and the way that the new facility has been built and I guess the security around it, and is there a way to make that centre more open, at least for processing purposes, or is it more the isolation from the mainland as far as services?

Mr Mitchell —It is twofold. Firstly, it is the entitlement and rights issue that I mentioned earlier. Under the excision law people simply do not have the same entitlements in relation to seeking asylum, legal access and so on. There is some provision but it is not the same, so there is a differentiation for that group. Secondly, there is the welfare issue. I have worked with people who have been detained on Christmas Island. There is one social worker on the island. It is extremely hard for the Red Cross or any other organisation to provide ongoing care that is required for the range of cases that generally seek asylum in relation to age, health and so on. The logistics of providing ongoing care are very difficult and responding to emergency health issues is extremely difficult. There are a whole lot of logistical issues. So there are rights and logistics and also just fairness: regardless of where people who come to Australia to seek protection arrive, we should have a standard response and set of principles in dealing with and managing them.

Senator BILYK —You talked about the Community Care Pilot. I think you said you thought it should be the first option. What areas can you see where the Community Care Pilot might need improvement? What suggestions could you make there?

Mr Mitchell —The Community Care Pilot is so unique because it is an early intervention model and it is really aimed, as I said before, at government and community groups working together constructively in trying to support and work with someone who otherwise probably would have languished in a detention centre with very little information, would have become more fearful and would have an increased likelihood of mental health problems. This is the complete opposite response and it is meant to deal with cases quickly. I think that it is very well constructed as a model. There are a whole range of examples internationally that have pieces of the Community Care Pilot model but that have not got them all right. There is a reference committee, with legal providers, the minister’s office, the department and welfare providers around the table that have spent 2½ years formulating a model that they all agree on. We know that people who are refused have to go, but we want to do this as humanely as possible. We know from statistics that 40 to 50 per cent stay and we do not want them damaged in the community; it is not helpful for anyone. I think there is a whole lot that can be built on in terms of expanding it with funding. It can only work if the government commit to more case management. The reason for case management is that, prior to 2005, the reason we had a lot of issues around identity and so on—for example, Cornelia Rau—was that, between the guards and bureaucrats, there was really no-one who was assessing individual identity. There was a one-size-fits-all approach to the security response. This new model allows case managers to individually determine what care is needed. So I think those two elements would be very successful.

Senator BILYK —You made some comments about softening policy. How do you see that we could soften the policy but still be able to look after the individuals? And what do you do if you cannot prove someone’s identity? What suggestions would you have for those people?

Mr Mitchell —I totally understand the concern around identity fraud. But it is interesting—and your report sums it up—that there has been little actual evidence of identity fraud, or of security concerns or absconding as well. It is managing risk. The minister got it right in the values statement and the context that he put it in, which is that in moving to a risk management model we detain where we need to detain. I think the department have moved in that direction, but it has been acknowledged in an October Senate committee that they do need to do more work on this. They need case managers to be at the forefront of it because they are the ones who know the clients and they will be the ones to determine who is or is not a risk. It is not going to be some bureaucratic reading something from a paper; it is going to be the direct interaction with case managers. In Canada, where there is no ability to determine identity in any way except by a sworn affidavit together with a psychosocial assessment, that is sufficient. It is similar in parts of Europe. It needs to be case by case; the softening is only a perception issue. If the risk management model is tightened, and how the department intends to do it can be explained to the Australian community, that can reassure the community.

Dr STONE —I am interested in that Canadian model. You referred to the idea that, if the authorities cannot identify the person through some external source, the person seeking asylum can make a statutory declaration. Does the Canadian government then try to validate that person’s claim or is that the end of it—the person says, ‘I am Joe Bloggs from Uzbekistan,’ they sign a stat dec and that is it? Or does the Canadian government then say, ‘That’s who you say you are. Let’s now go to Uzbekistan and check out your rellies’ or whatever? How does that work?

Mr Mitchell —I am not as familiar with the Canadian model, but the Swedes have a similar model of interview assessment and sworn affidavit. The difference between Sweden and Australia is that in Australia we do the security check right at the end, which does not make a lot of sense. We used to do that with health checks. Until 2004, when someone sought asylum, we did the health and security checks after they had been here for years—so they were found to have protection needs, and then we would do the checks. We still do the security checks very late, and from your report it was clear that there is a percentage of cases that are not checked. In Sweden, they do make a determination about whom they view as requiring further investigation. They have a whole investigation category for people who are in detention or in the community base. That is not the end of it; I could undertake to find out a little bit more and convey that back to the committee.

Dr STONE —It seems to me that if Canada and Sweden are accepting statutory declarations of identity then why would anyone bother to spend a lot of time independently trying to assess someone’s identification if there is a view that that is sufficient, if it is not followed by a lot of validation work? You see, it sounds rather interesting.

The other issue I am interested in—concerned about, I suppose—is when you have someone in the community with the right to work. One of the issues of course is the lack of anything to do. Whether you are in detention, out of detention or in alternative detention, there is the sheer boredom factor when you are waiting on a decision or whatever else. What is your international experience and knowledge about the capacity of detainees—we will call them that for the sake of it, given that they may or may not be in detention—to find work? What happens if they cannot find work either because they are unskilled, do not have the language or people are not prepared to take them on for what is, probably, likely to be a very short period? How do we overcome this issue of people being able to support themselves and not depend on a charity, even though in Australia we contract NGOs to look after the individuals? What is your experience of this employment issue?

Mr Mitchell —That is a significant issue. A group of NGOs here in Melbourne took a snapshot of 250 asylum seekers. Interestingly, the top five skills they had were the same as the top five skills on the skills list—hairdressers, plumbers et cetera. There is an incredible skill set but, for those who struggle to find work, that is an issue. The asylum seeker assistance scheme was set up for this purpose, but it excludes most people because it was developed 12 years ago when we did not have the 90-day rule for applications, so people had to wait for six months and so on. There is an assumption that a very large number of people can be self-sustaining in the community, so the investment by the government is in case management to make sure they are properly managed and overseen and cared for. There is a smaller percentage who may have health issues or other needs—and may also have trouble finding work—who might require that community care model, but I do not know at what level that would be. For those who have been given work rights, those who are connected to community groups have generally been able to find work. It depends on having a connection in the community and support from social workers.

Dr STONE —And presumably on where they are physically located.

Mr Mitchell —Yes.

CHAIR —With more people getting bridging visas there are potentially more people in the community, so this becomes a bigger issue.

Mr Mitchell —There are some questions that I think need to be asked around this. If we are moving from detaining them as a first resort to detaining them as a last resort, there are questions for the department and case management in terms of how they are going to manage this in terms of compliance and in terms of welfare. Welfare links them to getting the outcomes. If people are not coping and they are not well, they are less likely to be in a position to depart Australia. I think there needs to be a skeletal structure of this community care pilot model, which is there for those who reach a threshold of need. But the assumption would be that the majority of people would be self-sustaining, as they are in most countries. They need to do their best on their own undertaking. We know from 10 years of bridging visa E policy that people are very resourceful. They are resourceful because they have to live on charity. They have to go from charity to charity and develop relationships and live in a very destitute manner. All the asylum seekers I have worked with over many years—and I am sure you will meet some of them shortly—will say how keen they are to contribute to the community and to work. How easy that is depends of course on where they are located.

CHAIR —With people on bridging visas there will be more people in the community because they will not be in detention centres. Are you confident that, on the basis of experience elsewhere, people will get on with their lives and not become socially isolated and vulnerable?

Mr Mitchell —If you look at alternatives internationally, there have been a whole range of interesting pockets. I am sure you have all seen these different small pockets in Canada and the UK. We have been looking at those models really closely. It is very interesting in that some of them have failed dismally. But you do not really hear about those. They had an alternative to detention project in Millbank in the UK and it failed dismally. The reason it failed was that it worked with a group of long-term detainees who were very vulnerable, and they were trying to push for a return outcome at the last minute. It clearly did not get the outcomes that anyone wanted.

The most successful initiatives have been where governments and NGOs or community groups have worked together. One of our partners, the Lutheran Immigrant Refugee Service in Baltimore, and another Canadian group that you have heard of and also the Hotham Mission group here in Melbourne have all had very low absconding rates of one to two per cent. They have all had around the 90 per cent figure of people complying. By ‘complying’ we mean going home when they are required to. Why is that? I think it is part of having a system that is, right from the beginning, providing information about what people are going through. So you are mitigating fear and maximising empowerment. It is about the linkages. If you are connected to a worker in the community, that helps facilitate a lot of things around being able to function. But there is also a trust issue. If you make sure they are connected with the immigration officer, you are more likely to see people in better shape and following the rules. It is in their interests and the interests of the broader community. That is what we have seen internationally, but we have also seen it here. The community care pilot is an example of that. I think it needs a lot more support and attention and funding to roll it into the potential that it could have nationally.

CHAIR —Make it bigger?

Mr Mitchell —Yes.

CHAIR —Thank you very much for your presentation today. If you have any questions, please contact the secretariat. You will be given a copy of the Hansard transcript of your evidence.

Proceedings suspended from 3.01 pm to 3.15 pm