Community arrangements for asylum seekers, refugees and stateless persons

Community arrangements for asylum seekers, refugees and stateless persons

Observations from visits conducted by the Australian Human Rights Commission from December 2011 to May 2012



5 Community arrangements for asylum seekers, refugees and stateless persons

It was in this context that the expansion of the use of community arrangements in Australia occurred.

View from balcony, flat occupied by family in community detention.
View from balcony, flat occupied by family in community detention.

5.1 Benefits of community arrangements and effective international examples

There are a host of benefits associated with community arrangements for asylum seekers, refugees and stateless persons. Community arrangements are more closely aligned with international human rights law and standards than models of indefinite closed immigration detention. They also provide for far more humane treatment of people seeking protection.

There are further practical benefits. For example, community placement can be much cheaper than closed detention.[53] Effective community arrangements allow for readier transition to life as an Australian resident for people who are granted protection, and people who are found not to be owed protection have been shown to be more willing and able to return to their countries of origin when they have been living in the community than when held in closed detention.[54] As community arrangements entail fewer risks to the health, mental health, safety and wellbeing of asylum seekers, refugees and stateless persons, they are likely to lead to lower rates of suicide and self-harm as well as fewer claims for compensation.[55] There are also very low rates of absconding from community arrangements.[56] Finally, community placements allow for the full enforcement of immigration law and conditions can be applied within a community setting which enable mitigation of any identified risks.

Community arrangements for asylum seekers, refugees and stateless persons have been in use by countries around the world for many years. For example:

  • In Canada, people may be released from immigration detention on bail or bond and incur negative financial consequences if they breach the conditions of their release, which might include reporting requirements or handing over travel documents.[57]
  • In Spain, asylum seekers are either released into the broader community or accommodated in an open reception centre from which they are free to come and go. They are given a small monthly allowance and permitted to access medical and psychological services, a social worker, legal aid and educational opportunities. Asylum seekers can be housed in reception centres for up to six months, after which time they are assisted to find independent housing and employment or, if they are vulnerable, they may apply for an extension.[58]
  • Sweden uses a ‘reception program’ under which asylum seekers are issued with identification documents on arrival which are used by immigration officials to track their cases. After spending around a week in a transit or processing centre, asylum seekers are released into the community and can use their documentation to access some basic services. They are permitted to work in a range of circumstances, and if they do, they must contribute to their costs of living.[59]
  • New Zealand uses a ‘tiered system’ of monitoring and detention. Reporting and residence requirements can be used to manage people’s cases in the community, and if asylum seekers living in the community fail to comply with certain conditions, they are subject to arrest and detention.[60]

5.2 The development of community arrangements in Australia

As noted above, the Australian Government has made significant progress over the past two years towards implementing a system of community arrangements for asylum seekers, refugees and stateless persons who would otherwise be held in closed detention.

This progress builds on measures introduced by previous Australian Governments, in particular the introduction of the community detention mechanism in 2005. At this time the Migration Act was amended to give the Minister for Immigration and Citizenship the power to make a ‘residence determination’ in respect of a person in immigration detention, which allows that person to live in a specified residence in the community.[61] A person in this position is said to be in ‘community detention’.

On 29 July 2008, the then Minister for Immigration and Citizenship, the Hon Senator Chris Evans MP, announced the New Directions in Detention policy. Under the New Directions policy, immigration detention is to be used as a last resort and for the shortest practicable period, and there is a presumption that people will be permitted to reside in the community unless they pose an unacceptable risk.[62] This policy was not enshrined in legislation, and prior to late 2010, very few people were transferred from closed detention into the community prior to resolution of their status.[63]

On 18 October 2010, the Australian Government announced that it would begin moving significant numbers of children and their families into community detention.[64] A year later, on 25 November 2011, the government announced that following initial health, security and identity checks, selected asylum seekers who arrive in Australia by boat would be placed into the community while their asylum claims were assessed.[65] This was to be achieved through extending the use of community detention to vulnerable individuals in addition to children and families. It was also to be achieved by granting bridging visas, for the first time, to people who had arrived in Australia by boat.[66]

People in community detention remain in immigration detention as a matter of law. However, they are generally not under supervision and can move about in the community subject to conditions attached to their residence determination. Such conditions might include, for example, a curfew, the requirement to sleep at a specified residence every night, travel restrictions and requirements to report regularly to DIAC. Accordingly, the community detention system allows for people to be subjected to fewer restrictions on their liberty than in closed detention, while at the same time mitigating risks and promoting compliance with immigration processes.

People who have been granted bridging visas are not in immigration detention and can live lawfully in the community. A bridging visa can be granted to a person while their application for a substantive visa is being processed, while arrangements are being made for a person to leave Australia or at other times when a person doesn’t have a visa. Generally people granted bridging visas are not subject to any restrictions on their liberty. However conditions may be placed on bridging visas, such as reporting requirements.[67]

The government has transferred significant numbers of people out of closed immigration detention facilities since the announcements of 2010 and 2011 were made. Between 18 October 2010, when the government announced that it would significantly increase the number of families and children moving into community detention, and 19 July 2012, 4234 people had been approved for community detention, including 2008 children.[68] There were 1320 people, including 431 children, in community detention as at 19 July 2012.[69] Between 25 November 2011, when the first bridging visas were granted to asylum seekers who arrived in Australia by boat, and 19 July 2012, 3211 people from this class had been granted bridging visas.[70] There were 2418 people who had arrived in Australia by boat living in the community on bridging visas as at 19 July 2012.[71]

5.3 The Commission’s visits and interviews

Flat occupied by family in community detention.
Flat occupied by family in community detention.

Commission staff conducted a series of visits and interviews with asylum seekers, refugees and stateless persons in community arrangements between December 2011 and May 2012.[72] During these visits, the Commission met with couples with children, a multi-generational family group, unaccompanied minors, vulnerable adult men and one vulnerable adult woman. These people came to Australia from Afghanistan, Sri Lanka, Iran and Iraq. Some of them were stateless. The people with whom the Commission met included school students, babies and toddlers, older people, people who had experienced torture and trauma and people with disabilities.

The comments and recommendations which follow are based on observations made during the Commission’s visits and interviews. The Commission has not conducted a comprehensive review of community arrangements and has only met with a small sample of people living in the community. However these observations allow an informed assessment of the impact of community arrangements on asylum seekers, refugees and stateless persons.

The Commission appreciates that there are significant logistical and other challenges involved in transferring large numbers of people from closed detention to community arrangements, and that it is critical to the success of these initiatives that supporting community infrastructure is sufficient to meet demand. Matters relating to service provider capacities, availability of accommodation and other logistical challenges have not been addressed in this report.

(a) Strengthening the use of community arrangements for asylum seekers, refugees and stateless persons

“I really breathed the air into my body for the first time in so many months. And I thought – I can live again now.” (Sri Lankan refugee on a bridging visa in Sydney)

“I believe that being outside of detention, even with all the difficulties, is better than in detention. Here you have a friend to go to, a park to go to. Even on the best day in detention, you are still looking at the wires around you...” (Iranian asylum seeker on a bridging visa in Queensland)

“When we are here, we go to school – it is better than detention; we can go outside; go shopping; buy things; catch a train by ourselves; have activities.” (16-year-old unaccompanied Afghan asylum seeker in community detention in Sydney)

“In detention our son was bored, he didn’t play with the other kids, he cried, he just said, ‘I want to get out’. But here he is doing much better. It has made a big difference being in the community.” (Stateless asylum seeker in community detention in Melbourne)

 

The Commission has long argued that community arrangements ought to be the norm for asylum seekers and refugees, and the use of closed immigration detention should be a measure of last resort. The Commission’s visits and conversations with people in community detention and on bridging visas have reinforced the view that community arrangements, with appropriate opportunities and support, comprise a far more humane and effective model than closed detention for asylum seekers pending status resolution.

The overwhelming majority of people who spoke with the Commission reported that community arrangements were far preferable to being held in closed detention. All who spoke with Commission staff, including those with heightened vulnerabilities, stated that the challenges which they faced living in the community were less difficult than those which they had confronted while in a detention facility.

People told the Commission of a range of benefits associated with their community placement.

  • People spoke of the additional measure of freedom they experienced through being able to leave their residence as they wanted; visit new places such as landmarks in the city or a farm; and engage in activities and social events in the community such as barbeques.
  • People also spoke of the increased level of independence they experienced through, for example, being able shop for their own groceries; plan and cook their own meals; and organise their own transportation to appointments.
  • Some people told the Commission that the best thing about community placement was the ability it gave them to stay in closer contact with friends, family members and support people.
  • Others told Commission staff their children were faring much better in community arrangements than they did in closed detention.

While a vast majority of people in community placement spoke of this arrangement as preferable to closed detention, there were a small number of exceptions to this rule. These comprised a family who felt more socially isolated in the community than they had while detained at Leonora, and two people who feared that the longer than anticipated wait for a decision on their claim was attributable to them having been ‘forgotten’ as they were less visible to authorities in the community.

Nonetheless, it appeared to the Commission that the benefits of community placement far outweighed any disadvantages. Asylum seekers and refugees living in community arrangements have, to a much greater extent than those living in detention facilities, opportunities to live in normalised environments, to personalise the space they reside in and to plan their days. Community arrangements also appear to help people cope with the stresses associated with undergoing often lengthy and sometimes traumatic refugee status assessment processes and associated checks.

Flat occupied by family in community detention.
Flat occupied by family in community detention.

(b) Using community arrangements at the earliest possible opportunity

“For the first month out of the detention centre I was dreaming of the things I saw there. That pushes you to the edge of being mad.” (Iranian asylum seeker on a bridging visa in Sydney)

“I was a very happy boy before. After I spent a lot of time in the camp, it affected me very badly ... I moved from home, I was separated from my mother and I came to the detention centre – I was on my own. I was very sad, very depressed.” (Iranian asylum seeker on a bridging visa in Sydney who arrived in Australia as an unaccompanied minor)

“After a while he is getting better, much better. At the beginning he was affected about his experiences in detention. But with time he is getting better.” (Stateless asylum seeker in community detention in Melbourne, speaking about his two-year-old son)

“I felt a bit happy at first because I was a bit free. But it also felt weird. It was a strange experience – especially after a year.” (Iranian asylum seeker in community detention in Melbourne)

“For now I feel OK – in my body and my mind. I think being busy helps with that. But because of the prolonged detention I had great mental distress.” (Sri Lankan refugee on a bridging visa in Melbourne)

 

It was apparent from the Commission’s visits and interviews that people who had been transferred into the community within a few months of their arrival, whether on bridging visas or in community detention, were coping better than people who had endured extended periods of time in closed detention prior to their community placement.

Over many years of monitoring immigration detention facilities and speaking with people in detention, the Commission has witnessed the highly damaging effects of prolonged, indefinite immigration detention. Countless people in detention have told the Commission of the acute anxiety, distress and frustration they have experienced as a consequence of their detention, and the pervading uncertainty as to how long it will last. In many cases, people in detention have pre-existing vulnerabilities arising from experiences of torture and trauma or the loss of or separation from loved ones.

The effects of prolonged, indefinite immigration detention on the wellbeing of people who have experienced detention do not dissipate immediately upon a person’s release. Most of the refugees and asylum seekers in community placement with whom the Commission spoke told staff of their experiences of detention and the legacy of such experiences in their everyday lives. Some people spoke of invasive memories which interrupted their sleep and affected their appetite. Others spoke of disturbing dreams. Still others told the Commission that they had problems with their memory, concentration and ability to learn, all of which they attributed to the effects of being held in closed detention.

It appeared however that some asylum seekers and refugees in community arrangements, when provided with appropriate support, felt that they could begin to recover from their experiences of detention and regain a degree of hope for their future. Many people told the Commission that since being placed in the community, they – and, where relevant, their children – were coping better. Many people felt able to reengage with their families, the community and DIAC processes.

People’s recovery appeared especially pronounced when they had spent shorter periods of time in detention facilities. Those who had spent prolonged periods in detention prior to their community placement reported that they continued to be powerfully affected by difficult past experiences.

Artwork by children in community detention.
Artwork by children in community detention.

(c) Opportunities to make a livelihood and engage in other meaningful activities

“It was difficult to find the work and the work is hard. I am very busy. I work 54 hours per week across 6 days. But it is good to be busy also. It is difficult in many ways, but I am happier now.” (Sri Lankan refugee on a bridging visa in Sydney)

“I hope I get a job ... otherwise I’ll have nothing to do but sit around, waiting for my visa.” (Iranian asylum seeker on a bridging visa in Queensland)

“They say that this is freedom, but I’m not allowed to have freedom. These are very sensitive times in life – these ages I have been while here. They are the best times to study and to work – to develop. But I have been wasting my time. This is very unhealthy. I now feel like I am very old.” (Iraqi asylum seeker in community detention in Melbourne)

“I would really like to work and study. I look at here as if it were Iran. I was not allowed to work or study there. And I had no identity there either. But I feel like my situation is much worse here now, because I am no longer single. I have to provide for my family, but I can’t. After a year, we were told that we can study.” (Iranian asylum seeker in community detention in Melbourne)

“I am allowed to do voluntary work. And I have done – a lot. But I have stopped now. I would like to be able to earn my own money. To not rely on a handout.” (Iraqi asylum seeker in community detention in Melbourne)

“It’s very difficult to spend all day and night in the house. It means we are saving money, but it’s boring staying at home all the time!” (Sri Lankan refugee couple in community detention in Sydney)

“We are so grateful to the authorities: they rescued us from the ocean at a time when I thought that my wife might die and now they have placed us in the community. But I am not allowed to work to support my family, and that is very hard. We have tried to do everything that’s best for our son – to bring him to safety. But sometimes not knowing what the future holds and having nothing to really do can make our days feel unbearable.” (Iranian asylum seeker in community detention in Melbourne)

 

It was evident from the Commission’s visits and interviews that opportunities for self-reliance and meaningful activities are critical to rebuilding resilience amongst asylum seekers, refugees and stateless persons.

People in community detention, unlike people who have been granted a bridging visa, are not permitted to engage in paid work in Australia. Families with children and people with vulnerabilities are more likely to be placed into community detention than granted a bridging visa, due to the additional support which is generally associated with that community placement option. Consequently, a large number of people in community arrangements are not permitted to engage in paid employment.

The prohibition on paid employment was a source of distress amongst the adults in community detention with whom Commission staff spoke. Most people in this situation expressed feelings ranging from demoralisation to despair at their inability to support themselves or their families, or to contribute to Australian society. Some felt that their dignity was undermined by not being able to work; others were at pains to convey that they had not wished to become a burden on Australian society. Those who had been in community detention for longest appeared most highly distressed by this issue.

Moreover, some people told the Commission of the impact of the lack of opportunities to engage in specific activities aside from work. People told the Commission of their desire to engage in meaningful activities which allowed scope for personal development. For example, some spoke of their desire to study English or to engage in vocational training. In some cases, people told the Commission they had been advised that they were prevented from undertaking studies of this nature because of the conditions attached to their community detention or bridging visa; in other situations people were unclear about what activities they were permitted to pursue. Asylum seekers and refugees told the Commission that the lack of opportunities to engage in meaningful activities led to idleness, apathy and a sense of worthlessness and lost opportunity.

 flat occupied by family in community detention.
Left and right: flat occupied by family in community detention.

The opportunity to work should be afforded to all adults who have been placed in community arrangements. While the Commission appreciates that some people may not find or sustain employment readily due to multiple impediments to workforce participation, all those who feel able to work should nevertheless be given the chance to do so, irrespective of their level of vulnerability.

The Commission understands that families and vulnerable individuals in community detention may now be considered for transfer onto bridging visas if it appears that they are in a position to earn. This is a positive step. However, to avoid delay in allowing people opportunities to gain a livelihood, people in this situation should be considered for a bridging visa grant in the first instance wherever possible, as long as they continue to be provided with levels of support commensurate with their basic needs.

The Commission also believes that people in community arrangements should be given opportunities to engage in meaningful activities, aside from work. These ought to include eligibility for adult English language classes and permission to enrol in vocational training. Where such opportunities are already available under current arrangements, this should be made clear to those concerned.

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[53] For example, in Canada, providing for asylum seekers living in the community has been costed at $10-12 per person per day, compared with $179 for detention. In Australia, the Community Assistance Support program, a service for certain vulnerable asylum seekers living in the community, has been costed at a minimum of $38 per day, as opposed to a minimum of $125 per day for immigration detention. Costs calculated in Canadian and Australian dollars respectively. See United Nations High Commissioner for Refugees, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, p 60, at http://www.unhcr.org/refworld/docid/4dc935fd2.html (viewed 6 July 2012); International Detention Coalition and La Trobe Refugee Research Centre, There are Alternatives: A handbook for preventing unnecessary immigration detention (2011), box 12, at http://idcoalition.org/cap/handbook/ (viewed 6 July 2012).
[54]There are Alternatives, above, section 4.3.3 and endnotes 51-54.
[55]There are Alternatives, above, section 5.
[56] Research indicates that less than 10% of asylum applicants abscond when released to proper supervision and facilities, or, in other words, over 90% of asylum applicants comply with their conditions of release. See Back to Basics, note 53, Executive Summary; There are alternatives, above, sections 3.2 and 5.1 and box 12.
[57]There are Alternatives, note 53, box 14.
[58]There are Alternatives, note 53, box 8.
[59]There are Alternatives, note 53, box 9.
[60]There are Alternatives, note 53, box 2.
[61] See Migration Act 1958 (Cth), s 197AB.
[62]New Directions in Detention, note 15.
[63] See, for example, Australian Human Rights Commission, 2010 Immigration detention on Christmas Island (2010), sections 11 and 13.2, at http://www.humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 10 July 2012); Australian Human Rights Commission, 2011 Immigration detention at Villawood (2011), section 7, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood.html (viewed 10 July 2012).
[64] Minister for Immigration and Citizenship and Prime Minister, ‘Government to move children and vulnerable families into community-based accommodation’ (Media Release, 18 October 2010), at http://www.minister.immi.gov.au/media/cb/2010/cb155484.htm (viewed 6 June 2012).
[65] ‘Bridging visas to be issued for boat arrivals’, note 39.
[66] Bridging visas have been used for many years to allow, among others, asylum seekers who arrive by plane to live lawfully in the Australian community. See Prime Minister of Australia and Minister for Immigration and Citizenship, ‘Asylum seekers; Malaysia agreement; Commonwealth Ombudsman’ (Joint Press Conference, 13 October 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb179299.htm (viewed 10 July 2012).
[67] Department of Immigration and Citizenship, Bridging visas: form 1024i, at www.immi.gov.au/allforms/pdf/1024i.pdf (viewed 29 June 2012).
[68] Written communication from Department of Immigration and Citizenship to Australian Human Rights Commission, 24 July 2012
[69] Above.
[70] Above.
[71] Above.
[72] See note 3.