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All people have a fundamental human right to seek asylum from persecution (2010)

Rights Rights and Freedoms

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The following opinion pieces have been published by the President and Commissioners. Reproduction of the opinion pieces must include reference to where the opinion piece was originally published.

All people have a fundamental human right to seek asylum from persecution

Author: By Catherine Branson QC, Human Rights Commissioner and President of the Australian Human Rights Commission

Published in Online Opinion, Tuesday, 2 November 2010

Staff from the Australian Human Rights Commission visited the immigration detention facilities on Christmas Island in May – June this year.

It’s the third annual visit we’ve done to these remote facilities and last week, with the release of our 2010 Christmas Island immigration detention report, we again called for an end to mandatory detention and offshore processing on Christmas Island.

The Commission has long held the view that detaining asylum seekers in remote places like Christmas Island is not appropriate.

We already know that detaining people for long and indefinite periods can seriously impact on their mental health. We also know that detaining people in remote locations like Christmas Island makes it difficult to provide sufficient mental health services and torture and trauma counselling. This is a real concern considering that many asylum seekers are fleeing dangerous situations which have left them traumatised and in real need of support.

Our concerns this year have also been compounded by the significant increase in the number of people in detention on the island. Our staff saw overcrowded conditions, people sleeping in tents, and families with young children struggling to maintain some semblance of a ‘normal’ family life in the overcrowded Construction Camp detention facility.
It must be acknowledged however, that significant efforts were being made by staff from the Department of Immigration and Citizenship, who were doing their best in very challenging circumstances on Christmas Island.

The Commission was also pleased to hear the Government’s recent announcement that it would stop using tent accommodation on Christmas Island. And we were quick to welcome the decision to begin moving some families and unaccompanied minors out of detention facilities and into community-based accommodation. We encourage the government to do this as quickly as possible.

We also hope that support will grow for going one step further and changing the Migration Act to ensure that, in future, children will only be detained in the first place if it truly is a measure of last resort.

I think that most Australians, if they could see the daily reality for the hundreds of children currently in detention facilities around Australia, would be supportive of moves to end this practice.

Ultimately, the Commission believes that Australia’s current system which subjects people to mandatory detention for indefinite periods of time, and without access to review by a court, must be reconsidered. This is a system not adopted by other Western countries.

The Australian Government should implement the risk-based approach to detention it announced in 2008. Put simply, people should only be held in immigration detention if there is a risk that justifies detaining them. If no such risk exists they should be allowed to reside in community-based alternatives to detention while their refugee claims are assessed. 

Above all else, it is worthwhile to remember two very important but often overlooked facts in this debate.

First, asylum seekers are not illegal immigrants – all people have a fundamental human right to seek asylum from persecution.

And second, Australia receives a tiny percentage of the world’s asylum seekers. We have the capacity to treat the small number of people who arrive here seeking our protection in a humane way that respects their human rights.

The Commission’s report, 2010 Immigration detention on Christmas Island, is available on the Commission's website at


See Also

Rights Rights and Freedoms

Speech delivered to Department of Immigration and Citizenship

Today I want to talk to you first generally about Australia’s human rights obligations, and the role of the Commission. I will then move to discuss three key human rights obligations which are relevant to decisions which some officers within the Department make every day.

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