Limits on the detention of asylum-seekers

What that means for human rights advocates in Australia, and for asylum seekers in detention, is that the battlefield is not the international arena, but the domestic legal system.

In discussing the right of a person to challenge their unlawful detention, Sir William Deane, then a Justice of the High Court of Australia, said:

"It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny." [1]

The right to challenge unlawful detention and obtain an order for release - known as habeas corpus - is an ancient and powerful tool. It was once said that it can reach even behind iron bars to release a person unlawfully detained. But the remedy has so far been of limited assistance to asylum seekers in Australia. There are two main reasons for this - the first is that the Australian Constitution grants the government very broad powers to deal with non-citizens or 'aliens'; the second is that international legal norms are not directly enforceable in Australian law.

The right to liberty is not just a fundamental human right under international law. The right of every person to be free is a notion that lies at the very heart of the western liberal tradition. However, since the birth of the mandatory detention system in Australia in 1992, the traditional common law presumption in favour of liberty is a privilege not afforded to asylum seekers arriving on our shores. [2]

Lim's case & the beginning of mandatory detention in Australia

The story of Australia's mandatory detention regime starts with Lim's case, decided in the High Court in 1993. [3] The applicants in that case were two groups of Cambodian boat people who arrived in Australia in 1989 and 1990. Upon arriving in Australia, the boat-people were detained, and applied for asylum. Their applications for asylum were unsuccessful. They then challenged the lawfulness of their continued detention in the newly opened Port Hedland detention centre in far north-west Western Australia.

Two days before the case was heard in the Federal Court of Australia, the Australian Parliament passed legislation requiring the Cambodians to be kept in immigration detention until either they were granted a visa or removed from Australia. It also provided that a Court could not order their release from detention. This was the first mandatory detention regime in Australia.

This new regime was challenged within a few weeks by Mr Lim and the other Cambodians in the High Court of Australia. The basis of the challenge in the High Court was that the Commonwealth government did not have the power to detain aliens, as it was only for courts, not governments, to deprive someone of their liberty.

The High Court decided that while that was the case for citizens, non-citizens were in a different position. The Constitution gives the federal parliament a broad power to deal with aliens and part of that power is the power to administratively detain aliens. Administrative detention of this sort is only lawful, the court said, if it is for a non-punitive purpose - in other words, that it is not designed to punish the people being detained. Detaining people for the purpose of processing of a visa application or pending their removal from the country was, unlike imprisonment under the criminal law, considered to be administrative rather than punitive.

The court said that the regime under which Mr Lim and the other applicants were being detained was non-punitive for two main reasons. First, the detainees could end their detention at any time by choosing to leave Australia. According to the Court, it 'always lies within the power of a person to bring his or her detention in custody to an end by requesting to be removed from Australia'. This ability to elect to end detention is in contrast to punitive detention, in which there is no such choice.

Second, unlike the current regime, the regime under consideration in Lim's case imposed a time limit on detention. [4] This was also considered to be important by the High Court, as it meant that even if a detainee did not choose to bring their detention to an end, they could not be detained indefinitely.

For these reasons, the regime was held by the High Court to be lawful. [5]

A v Australia

One of the applicants, known as A, then took the case to the UN Human Rights Committee arguing that Australia was in breach of the International Covenant on Civil and Political Rights (ICCPR), which had been ratified by the Australian government. Article 9(1) of the ICCPR provides that every person has the right to liberty, and shall not be arbitrarily arrested or detained. Article 9(4) enables anyone detained or arrested to challenge the lawfulness of their detention in a court. The Human Rights Committee declared that Australia's detention system breached these two provisions.

In response, the Australian government ignored the decision, retained the mandatory detention system, and expanded it to include all unauthorised arrivals. It was able to do so because international law is not binding and is not directly enforceable in Australian courts unless legislation is passed to incorporate it into, or make it a part of, the Australian legal system. As there was no legislation incorporating the ICCPR in Australian law, the government could ignore the committee's decision. However, as the result of a political compromise, Applicant A and many of the other Cambodians were eventually granted permission to stay in Australia after four years of legal challenges to their detention.

As the story of Mr Lim and Applicant A shows, the fact that Australia has ratified the ICCPR, thereby agreeing to be bound by it at international law, means little on the domestic front given the disjuncture between international and domestic law. For this reason international human rights norms are of minimal assistance to asylum seekers challenging their continued detention by the Australian government.

The current regime

As we have said, Lim provides a legal justification for the continued (and expanded) policy of mandatory detention in Australia. Under that policy, all unlawful non-citizens must be detained until they are granted a visa (such as a protection visa) or are removed from the country, either 'voluntarily' or by means of deportation in cases involving criminal offences.

Section 198 is the 'voluntary removal' provision, considered so important in Lim. It provides that a detained person may request at any time that the Minister remove them from Australia. Once a 'voluntary removal' request is made, the Minister must remove the person 'as soon as reasonably practicable'. This places an implied time limit on the detention of such people. A similar implication applies to deportation cases. However, there is no express or implied time limit placed on the detention of people waiting for a visa. There is a real question as to whether the absence of a time-limit on the processing of applications for visas sufficiently distinguishes the current regime from that considered to be lawful in Lim. If so, it could affect the constitutionality (or lawfulness) of the current regime, as it effectively permits indefinite detention.

Recent Federal Court cases

Stories about asylum seekers who have been subjected to prolonged detention are slowly beginning to be heard. We will mention a few cases that have recently been considered by the Federal Court of Australia. For many of these people, the Court has found that their continued detention is unlawful and has ordered their release. While this is a dramatic result for the people involved - granting them freedom on an interim basis until the cases are finally determined at trial - they do not strike at the heart of the detention regime, unlike what was attempted in Lim. There is an assumption, it seems, that the current detention regime is lawful, despite being differently drafted and implemented to the regime considered in Lim. In each of the following cases, the detention is challenged not on the basis that the entire regime is unlawful, but rather that the government has exceeded its authority under the Migration Act in relation to the detention of a particular individual.

(a) Mr Al Masri:

Mr Al Masri is a Palestinian from a part of the Gaza Strip under the control of the Palestinian Authority. Upon arriving in Australia in June 2001, he was detained at Woomera Detention Centre, in remote South Australia.

He claimed to be a refugee and applied for a protection visa. His claim was unsuccessful. In December 2001 he asked to be returned to the Gaza Strip; six months later he was still in Woomera waiting to be removed. He commenced proceedings in the Federal Court seeking release from detention.

Mr Al Masri contended that the power of the government to detain for the purpose of removing someone from Australia is impliedly limited to a reasonable time, and terminates when there is no reasonable likelihood of removal. Otherwise, the Act would permit indefinite detention, which is unlawful. The Minister for Immigration argued that the government can lawfully detain someone so long as the detention is for the purpose of removal from Australia; that is, there is no time limit imposed on detention.

Justice Merkel held that the detention provisions only authorise detention for so long as the Minister: is taking all reasonable steps to secure the person's removal from Australia 'as soon as reasonably practicable' and that the removal is 'reasonably practicable' in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future. In Mr Al Masri's case, the Minister had taken all reasonable steps to secure his removal from Australia by contacting all possible entry points - Israel, Jordan, Syria and Egypt. Those steps had been unsuccessful. When the proceedings were heard in late July, there was still no evidence of any real likelihood of removal in the foreseeable future.

Accordingly, Mr Al Masri's continued detention was held to be unlawful and Merkel J ordered his release from detention on 15 August. Two weeks later, the Minister secured permission for the entry of Mr Al Masri and other Palestinians to Gaza. Mr Al Masri was placed in detention pending his deportation and is no longer in the country.

This case has the potential to affect the detention of all people waiting to be removed from Australia where there is no real likelihood of removal in the foreseeable future. Failed Iranian and Iraqi asylum seekers would fall into this category. In fact, just this week, Justice Mansfield ordered the release of a failed Iraqi asylum seeker - Mr Al Khafaji - on very similar grounds to Mr Al Masri. For this reason, the government has appealed the decision in Al Masri's case - even though he is no longer in the country - and we are waiting for the decision of the Full Federal Court, which is expected to be handed down soon.

(b) The Hazara Afghanis:

The next series of unlawful detention cases that appeared in the Federal Court involved four Hazara Afghani asylum seekers whose applications were being processed around the time that the war against the Taliban regime in Afghanistan started. Unfortunately, we do not know the names of any of these applicants, due to changes to the Migration Act in 2001 prohibiting the courts from disclosing the name of applicants for protection visas. [6] Codes are used instead - hence 'VFAD' v Minister. We will refer to these four applicants as the Hazara Afghanis for now.

Each applicant was an Hazara Afghani male who had arrived in Australia in early 2001. Through documents obtained by the Refugee and Immigration Legal Centre under the Freedom of Information Act, the applicants discovered what appeared to be decisions signed by Immigration Department officials dating back to August 2001. They were decisions that appeared to grant them protection visas. However, these decisions were never communicated to the applicants and the Minister said that they were draft decisions only. After these 'decisions' appeared to have been made, the Minister for Immigration announced that given the changing situation in Afghanistan, there would be a department wide 'freeze' on the processing of all Afghani asylum applications until the situation had stabilised. Afghani asylum seekers were notified of this policy decision in mid-January this year, leading to protests at Woomera. Once processing recommenced after the fall of the Taliban, each of the applicants was denied a protection visa based on the changed circumstances in Afghanistan.

The ultimate question in these cases is whether the 'decisions' were final decisions to grant protection visas to the applicants. If so, the processing freeze would have had no legal effect on them and the applicants should have been released from detention when the decisions were made. In each case, it was found that the applicants had a strong case for saying that the decisions were final decisions, and that they had been granted protection visas. This question will not, however, be determined until a final hearing takes place.

The issue in these cases, though, was whether the applicants should be kept in detention until the final hearing. If the applicants succeed in proving that the decision records did constitute the grant of a visa, they will have been unlawfully detained since the decision was made. In reaching its decision in each case, the Court had to balance the strict requirements of the Migration Act with the law's presumption in favour of liberty. The judges in each of these cases came down on the side of liberty. As Justice Gray put it: The protection of individual liberty is of such fundamental importance to the Australian legal system that the mere fact that the applicant is in detention must be given considerable weight. All four men were released into the care of a local charity, and are required to report to the Department on a regular basis until their hearings, which are scheduled early next year.

(c) The 'NAMU' family:

In many of these cases, evidence is led by the applicants of the detrimental effects of prolonged detention. About one of the Hazara Afghani applicants, Gray J said:

"He said he has been in detention for so long that he is now exhausted and depressed - He feels as if his soul is not healthy and he is no longer human ... He feels like a fish that has just been caught, in its last moment before death."

In another recent Federal Court case, it was argued that the effect of detention on children justified their release from detention. Applicant NAMU's case (another pseudonym) was brought by a husband and wife and their four children, three of whom were under 18 years old. They are Iraqi nationals who fled in 1995 and arrived in Australia in 1999. They have been in detention since that time - about three years.

The family claimed that their detention, although originally lawful, had become unlawful due to the severe psychological disturbances suffered by their children as a result of their detention. It was claimed that by placing the children in a situation where they had become suicidal the detention had stopped being administrative in nature and had become punitive. According to the reasoning in Lim's case, punitive detention is unlawful.

Justice Hely disagreed with this view on the basis that it is the purpose of detention, not its impact on individuals, that is the relevant question. He said that the purpose of detention remained valid - as the family was still pursuing visa applications, they were being detained for the purpose of being granted a visa. They have appealed his decision and are waiting in detention for the outcome of the appeal.

As mentioned earlier, there is no restriction on the amount of time a person may be detained while waiting for a visa. As the processing freeze in relation to the Hazara Afghanis shows, there seems to be no obligation on the Minister to process applications within a fixed time frame. This is further highlighted by the case of the East Timorese asylum seekers in Australia - who arrived here eight years ago (and are not detained) - and who are only now having their protection applications processed. While the Minister for Immigration recently suggested that the asylum seekers themselves are in some way to blame for the delay in processing, the delay was in fact due solely to the Department's reluctance to process asylum applications alleging persecution on the part of Indonesia, with whom Australia had a delicate political and diplomatic relationship.

Most of these 1600 people had strong refugee claims at the time they lodged their applications; most are now being refused protection due to the changed political landscape in East Timor. Despite the devastating impact that such treatment has had on these people, who have had to try to establish new lives in a state of limbo, they are the lucky ones compared to the Hazara Afghanis who have been detained in the middle of the desert for up to three years, while the government plays political games with their lives. This, more than anything, perhaps reveals the true purpose of detention - the punishment of people for coming here in an 'unorderly fashion'. As one commentator has put it, it is not the asylum seekers but Australian government that is seeking to achieve a migration outcome.

The UK approach to detention -- Saadi's case

NAMU's case forms a stark contrast to the UK approach, as highlighted in Saadi's case, decided in 2001. Saadi's case challenged the UK policy of mandatory detention of all asylum seekers whose claims were, amongst other things, likely to be straightforward - that is, unfounded. Under that policy, a 'fast track' procedure was instituted where people were detained for a maximum of ten days to speedily resolve their claims. Mr Saadi and three other Iraqi Kurds who were applying to the UK for asylum were detained in the Oakington centre for a period of ten days under the regime in 2000. They brought a challenge to their detention, claiming that they had been unlawfully detained.

Collins J held that detention regime was lawful according to domestic law, because it was done in accordance with the requirements of the UK Immigration Act. But he held that their detention was in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which protects liberty and prohibits detention except in specified situations.

The decision of Collins J was, however, overturned on appeal and the regime was held to be lawful. Importantly, though, the judges on appeal held that there was a requirement of proportionality between the detention and the purpose, which in this case was to process their applications speedily. In this case detaining someone for ten days was held to be proportionate. Whether the detention of people like the 'NAMU' family for a period of three years would be considered proportionate under the ECHR is another question!

The differences in approach of the British courts in Saadi and the High Court of Australia in Lim can in large part be explained by the different status of the relevant international conventions in the UK and Australia. Like Australia, international law is not directly enforceable in the UK unless it has been incorporated into UK law. Importantly, the ECHR has been incorporated into UK law by the Human Rights Act 1998, unlike the ICCPR which, as we have outlined, is not directly enforceable in Australia. For this reason Mr Saadi and the other Iraqis were able to rely on the provisions of the ECHR and were not confined to arguing about the legality of the regime under domestic law.

Just this week, the UK parliament has been engaged in heated debate over amendments to its Nationality, Immigration and Asylum Bill (2002) which will extend the number of 'accommodation' - read, detention - centres used in the UK. It even proposed the use of remote facilities (perhaps the UK could rent a desert facility from Australia!) but this proposal seems to have been defeated. Under the new regime, asylum seekers in the UK will be allowed to leave accommodation centres after six months if their applications have not been processed. While this represents a significant hardening of the UK position on asylum seekers, it makes plain the glaring inadequacies in the Australian system, particularly the absence of safeguards against prolonged and indefinite detention.

Conclusion

The right not to be arbitrarily detained has its origins in the birth of liberalism. It is also a fundamental human right protected by international conventions. It is clear, however, that the Australian government remains blind to the demands of international human rights law, revealing the impotence of non-enforceable norms. What that means for human rights advocates in Australia - and for asylum seekers in detention - is that the battlefield is not the international arena, but the domestic legal system.

Whilst Lim's case upheld the power of the government to place unauthorised arrivals into administrative detention, it did set some limits on that power, and the recent Federal Court cases are examples of this. Despite significant legislative and policy changes, Lim's case has not been seriously reconsidered by the High Court. The cases currently before the Federal Court are chipping away at the veneer of the mandatory detention policy. We hope that the next step will be a case that strikes deep into its (il)legal heart.