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2011 Immigration detention in Leonora

2011 Immigration detention in Leonora

Summary

of observations from visit to immigration detention facility in Leonora

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Contents

PART A: Introductory sections

PART B: Key concerns about immigration detention in Leonora

PART C: Recommendations


PART

A: Introductory

sections

1 Introduction

The Australian Human Rights Commission visited the immigration detention

facility in Leonora, Western Australia from 23 to 26 November 2010. This

statement contains a brief overview of the key observations and concerns arising

from the Commission’s visit. It focuses on conditions as they were at that

time.

The Commission acknowledges the assistance provided by the Department of

Immigration and Citizenship (DIAC) in facilitating the Commission’s visit,

and the positive cooperation received from DIAC officers and detention service

provider staff during the visit. This statement was provided to DIAC in advance

of its publication in order to provide DIAC with an opportunity to prepare a

response. DIAC’s response is available on the Commission’s website.[1]

2 Background

For more than a decade, the Commission has raised significant concerns about

Australia’s immigration detention system. During this time, the Commission

has investigated numerous complaints from people in detention and conducted two

national inquiries into the mandatory detention

system.[2] The Commission has concluded that this system breaches fundamental human

rights.[3]

Because of its ongoing concerns, the Commission undertakes monitoring

activities which include conducting visits to immigration detention

facilities.[4] The overarching aim is

to ensure that conditions of detention meet internationally accepted human

rights standards. Further information about the Commission’s immigration

detention visits and visit reports can be found on the Commission’s website.[5]

3 Overview:

immigration detention in Leonora

Leonora is a small town in Western Australia, approximately 830 kilometres

northeast of Perth. The local population of the Leonora township is

approximately 1500 people.[6] The

nearest major town is Kalgoorlie, 230 kilometres away.

Photo: Main street, Leonora township

Main street, Leonora township

Photo: Leonora immigration detention facility

Leonora immigration detention facility

People in immigration detention in Leonora are held at the Leonora

immigration detention facility. This is a privately owned property leased by the

Australian Government and operated as a low-security immigration detention

facility. It is primarily used for the detention of families with children. The

facility is classified by DIAC as an ‘alternative place of

detention’. People detained in the facility are not permitted to leave

unless they are under escort.

The facility was opened as a place of immigration detention in June 2010. The

facility contains demountable buildings used as accommodation, clinic rooms, a

kitchen and dining room, laundry rooms, recreation spaces, a canteen, offices

and interview rooms. Additional photos of the facility are available on the

Commission’s website.[7]

At the time of the Commission’s visit there were 202 people in

immigration detention in Leonora – 69 men, 67 women, 35 boys and 31

girls.[8] This included 52 people from

Iran, 50 from Afghanistan, 47 from Sri Lanka, 12 from Iraq and 39 stateless

people.[9] They were all people who

had arrived by boat and were seeking asylum in Australia.

At the time of the visit, the maximum capacity of the Leonora immigration

detention facility was approximately 220 people. The facility was being operated

by Serco Australia, the detention service provider contracted by the Australian

Government.


PART

B: Key concerns about immigration detention in

Leonora

4 Mandatory

detention

As has been the case with past visits to immigration detention facilities,

the Commission’s overarching concern during the Leonora visit was the

impact of the mandatory detention system on the human rights, wellbeing and

mental health of those detained. The Commission is particularly concerned about

the mandatory detention of children, as discussed in section 7 below.

Australia continues to have one of the strictest immigration detention

regimes in the world – it is mandatory, it is not time limited, and people

are not able to challenge the need for their detention in a court. The

Commission has for many years called for an end to this system because it leads

to breaches of Australia’s human rights obligations, including the

obligation not to subject anyone to arbitrary

detention.[10]

To avoid being arbitrary, detention must be necessary and reasonable in all

the circumstances of the case, and a proportionate means of achieving a

legitimate aim.[11] If that aim

could be achieved through less invasive means than detaining a person, their

detention will be rendered

arbitrary.[12]

Australia’s mandatory detention system fails to provide an individual

assessment mechanism to determine whether the immigration detention of each

person is necessary, reasonable or proportionate. Asylum seekers are not

detained because they are individually assessed as posing some form of risk.

Rather, all asylum seekers who arrive by boat are subjected to mandatory

detention – and, as discussed below, many spend long periods in

detention.

The Commission acknowledges that use of immigration detention may be

legitimate for a strictly limited period of time in order to undertake initial

health, identity and security checks. However, the need to detain a person

should be assessed on a case-by-case basis taking into consideration their

individual circumstances. A person should only be held in immigration detention

if they are assessed as posing a risk that cannot be appropriately met in a less

restrictive way, for example through reporting

requirements.[13]

Further, under

Australia’s international human rights obligations, anyone deprived of

their liberty should be able to challenge their detention in a

court.[14] To comply with article

9(4) of the International Covenant on Civil and Political Rights (ICCPR),

the court must have the power to order the person’s release if their

detention is not lawful. The lawfulness of their detention is not limited to

compliance with Australia’s domestic law – it extends to whether

their detention is compatible with the requirements of article 9(1) of the

ICCPR, which affirms the right to liberty and prohibits arbitrary

detention.[15]

Currently, in breach of its international obligations, Australia does not

provide access to such review. While people in immigration detention may be able

to seek judicial review of the domestic legality of their detention, Australian

courts have no authority to order that a person be released from immigration

detention on the grounds that the person’s continued detention is

arbitrary, in breach of article 9(1) of the ICCPR.

5 Length

of detention

The Commission has serious concerns about the increasing length of time for

which many people are being held in immigration detention. As of 3 December

2010, there were 6329 people in immigration detention in Australia, and more

than forty percent of them had been detained for longer than six months. More

than 200 people had been detained for longer than twelve

months.[16]

In 2008, the Commission welcomed the Australian Government’s ‘New

Directions in Detention’ policy, under which immigration detention is to

be used for the shortest practicable

period.[17] Under the New Directions policy, an asylum seeker should only be held in

immigration detention while their health, identity and security checks are

conducted. After this, the presumption should be that they will be permitted to

reside in the community unless a specific risk justifies their ongoing

detention. The New Directions policy recognises that once health, identity and

security checks have been successfully completed ‘continued detention

while immigration status is resolved is

unwarranted’.[18]

However, this policy has not been enshrined in legislation or implemented in

practice. In reality, asylum seekers who arrive by boat are held in immigration

detention for the duration of the processing of their refugee claims – and

in some cases, beyond that, while they await the conduct of security

clearances.

At the time of the Commission’s visit to Leonora, almost 80 percent of

the 202 people in immigration detention there had been detained for longer than

three months, and more than 60 percent had been detained for longer than six

months. Eleven people, including three children, had been detained for longer

than nine months.[19] All of the

people detained in Leonora had spent an initial period in detention on Christmas

Island, and most were transferred from there to Leonora. Some also spent time in

immigration detention in Darwin after being detained on Christmas Island and

before being transferred to Leonora.

During the Leonora visit, the Commission was concerned about a number of key

factors contributing to people spending prolonged periods in immigration

detention:

  • The suspension of processing of claims lodged by asylum seekers from Sri

    Lanka and Afghanistan who arrived on or after 9 April 2010 contributed to the

    prolonged detention of hundreds of people in Australia, including many

    children.[20] At the time of the

    Commission’s visit, there were 76 people detained in Leonora who had been

    affected by the suspension, including 32

    children.[21] The Commission

    welcomed the lifting of both suspensions and continues to encourage DIAC to take

    all appropriate steps to process the backlog of asylum claims as quickly as

    possible.

  • Delays with security clearances appeared to be contributing to the prolonged

    detention of a significant number of people. It is of particular concern that

    these delays were affecting people in respect of whom Australia has been

    assessed as owing protection obligations. The Commission was informed that there

    were 40 individuals in this situation in Leonora, some of whom remained in

    detention four months after receiving a positive refugee status assessment (RSA)

    decision.[22] The Commission met

    with a number of families who had received positive RSA decisions, but who

    remained in detention months later awaiting a security clearance.

  • The Commission has been concerned by reports over recent months that a

    significant number of asylum seekers in detention have not been notified of

    their RSA decisions until weeks or months after the decisions were made. The

    Commission met with a number of people in detention in Leonora who reported

    being affected by such delays. These delays may have the effect of prolonging

    people’s detention and could lead to breaches of Australia’s

    obligations not to subject anyone to arbitrary

    detention.[23] The Commission has

    sought confirmation from DIAC that the delays are no longer occurring and that

    in all cases where there was delay in notification of a negative RSA decision,

    action has been taken to mitigate the delay by prioritising the case for

    independent merits review. DIAC has informed the Commission that people affected

    by delayed negative RSA outcomes have been prioritised for independent merits

    review where that has been sought; and that new controls are being introduced,

    including interim policy guidelines which set maximum timeframes for

    notification of

    decisions.[24]

The

Commission has serious concerns about the impacts that prolonged and indefinite

periods of detention may have on the mental health and wellbeing of people

detained. The Commission heard about some of those impacts from people in

detention in Leonora, as discussed in section 8 below. Many people expressed

extreme frustration about the length of time they had been detained, the

indefinite nature of their detention, delays with RSA processing and security

clearances, and a lack of regular provision of information about progress with

their cases.

6 Physical

conditions of detention

Why do they discriminate? Why are the conditions better in other

camps?

(Woman detained in Leonora)

 

The Commission welcomes efforts by DIAC and Serco staff at the Leonora

immigration detention facility to provide appropriate conditions for people in

detention. During its visit, the Commission observed that individual staff

members were working hard to do so. However, it appeared that they were subject

to numerous constraints related to staffing levels, limited resources,

remoteness and infrastructure.

During its visit the Commission had a range of concerns about the conditions

of detention for people in the Leonora facility, including the following:

  • The facility is located in a small town in a remote location. The Commission

    was pleased to hear expressions of support from members of the Leonora

    community, and it was clear that there had been benefits for the local community

    from having the immigration detention facility located there. However, the

    Commission has previously raised concerns about the difficulties associated with

    holding people in immigration detention in remote locations – concerns

    which apply in the case of Leonora. These include the impacts on

    detainees’ access to services and community-based support networks, and

    the challenge of attracting and retaining sufficient numbers of qualified staff

    willing to be based in such locations for extended periods.

Photo: Soccer pitch, outside fence line of Leonora immigration detention facility

Soccer pitch, outside fence line of Leonora immigration

detention facility

  • The physical environment of the Leonora facility is quite harsh. It is not

    an appropriate place to hold families with children in detention, particularly

    for long periods of time. The outdoor heat is often extreme, and there is a

    limited amount of grassy and shaded space inside the facility. A number of the

    outdoor areas consist only of red dirt. Parents raised concerns about the safety

    and wellbeing of their young children in this hot and dusty environment. The

    Commission encourages DIAC to explore options for covering some of the dirt

    areas with grass, gardens, turf and/or paved pathways.

  • The harsh nature of the outdoor environment is exacerbated by the limited

    amount of indoor recreation space. During the Commission’s visit there was

    one large recreation room inside the facility, to be shared by 200 people.

    Parents said there were not enough indoor areas for their young children to play

    away from the heat and dirt. The Commission welcomes the fact that there are

    minor building works underway which will result in the availability of several

    additional recreation rooms. The Commission urges DIAC to ensure that the work

    is completed as quickly as possible.

  • Other than a recently installed turf volleyball court, there are limited

    outdoor recreation spaces inside the facility. The Commission welcomes the

    installation of a children’s playground and a turf soccer pitch. However,

    at the time of the Commission’s visit, they were located outside the

    facility’s fence line, with the result that people in detention had

    limited access to them. The Commission encourages DIAC to ensure that the fence

    line is moved as an urgent priority so that people will have free access to

    these recreation areas. The Commission also urges DIAC to ensure that plans to

    install shade cloth over the children’s playground are implemented as soon

    as possible, as the extreme heat and lack of shade make the play equipment

    unusable during most of the day.

  • The Commission heard a significant number of complaints about the lack of a

    gym or exercise room inside the facility. In particular, women expressed the

    need for an indoor area where they could exercise in relative privacy away from

    the extreme heat. The Commission welcomes plans to create a gym room as part of

    the minor building works, and urges DIAC to ensure the completion of this work

    as soon as possible.

7 Children

in detention

This place is not suitable for our children.” (Man

detained in Leonora)

My children come home from school and ask ‘Why are they

doing this to us Mum? Why are we still here?’” (Woman detained

in Leonora)

 

The Commission has welcomed efforts over recent years to improve immigration

detention conditions for children. However, the Commission continues to have

serious concerns about the mandatory detention of children, the high number of

children in immigration detention facilities around Australia, and the

increasing length of time for which many children are being detained.

As of 3 December 2010, there were 918 children in immigration detention in

Australia.[25] The Commission

welcomes the fact that children are no longer held in Australia’s high

security immigration detention centres (IDCs). However, children are still

detained in other types of immigration detention facilities, including the

facility in Leonora.[26]

Child asylum seekers continue to be subjected to mandatory immigration

detention. This breaches Australia’s obligations under the Convention

on the Rights of the Child (CRC), which require that a child should only be

detained as a measure of last resort and for the shortest appropriate period of

time.[27] These principles apply not

only to detention of children in high security IDCs, but also to detention of

children in other facilities. The Australian Government should consider any less

restrictive alternatives (including Community Detention, as discussed below)

before deciding to detain a child in an immigration detention facility. Children

should not be detained in such facilities as a matter of course; it should only

take place in exceptional

cases.[28]

The physical environment in such facilities is preferable to IDCs in that the

security measures are much less intrusive. However, they are still closed

detention facilities from which children and their families are not free to come

and go. Children might be escorted to an external school during the day or they

might be able to take part in supervised excursions, but during the remainder of

their time they are restricted to the detention facility.

During the Commission’s visit to Leonora, there were 66 children in the

immigration detention facility there – 31 girls and 35 boys. The children

ranged in age from four months to 17 years. There were 11 babies or toddlers

aged up to two years, 18 children aged three to five years, 18 children aged six

to ten years, and 19 children aged 11 to 17

years.[29]

The Commission welcomes efforts by DIAC and Serco staff in Leonora to provide

children in detention with access to appropriate conditions, services and

support. It was clear that individual staff members were making significant

personal efforts in this regard, despite dealing with numerous challenges.

However, during its visit the Commission had particular concerns about the

following issues relating to the detention of children in Leonora:

  • Many children are spending longer periods in immigration detention. At the

    time of the Commission’s visit, more than 80 percent of the 66 children in

    detention in Leonora had been detained for longer than three months. Fifty of

    the children had been detained for longer than six months, three of whom had

    been detained for ten months.[30] The Commission has for many years raised serious concerns about the impacts of

    prolonged detention on children. In A last resort?, the 2004 report of

    the National Inquiry into Children in Immigration Detention, the Commission

    found that children in immigration detention for long periods were at high risk

    of serious mental harm.[31]

  • There was no Memorandum of Understanding between DIAC and the Western

    Australia Department for Child Protection. This should be pursued to ensure

    there are clear guidelines in place regarding responsibilities and procedures

    relating to the welfare and protection of children detained at the Leonora

    facility.

  • DIAC and Serco staff had not been not provided with a written policy setting

    out the procedure to follow in the case of concerns that may arise about the

    welfare or protection of a child detained in the Leonora facility. All relevant

    staff working in the facility should be provided with a localised policy setting

    out the requirements and procedures for making child welfare and protection

    notifications, and training on this policy.

  • As discussed in section 6 above, the physical environment of the Leonora

    facility is quite harsh. It is not an appropriate place to hold families with

    children in detention, particularly for long periods of time. Parents raised

    concerns about the safety and wellbeing of their young children in the hot and

    dusty environment.

  • The Commission is pleased that school-aged children detained in Leonora are

    able to attend the local school. However, the Commission is concerned that

    pre-school aged children are provided with limited opportunities to leave the

    detention environment and to take part in active play and learning activities.

    Many parents raised concerns about the limited availability of meaningful

    activities for their pre-school aged children and the lack of safe spaces for

    them to play away from the heat and dirt. These issues are discussed further in

    section 9 below.

  • While some people detained at the Leonora facility welcomed the quality of

    food in the dining room, parents expressed concerns about food for their

    children. Some parents expressed concerns that the food in the dining room was

    not appropriate for toddlers or young children, and requested that they be

    allowed to prepare food for their own families. Many parents raised concerns

    about the ban on taking food out of the dining room. This complicates feeding

    toddlers and young children who may not eat at prescribed meal times, but get

    hungry for substantial meals (as opposed to the snack packs provided) at other

    times. The Commission encourages DIAC to work with the kitchen contractor to

    remove the ban on taking food out of the dining room.

The

Commission is concerned that families with children are detained in an

immigration detention facility in Leonora rather than being placed in

community-based alternatives to detention.

The Commission has previously raised concerns about the under-utilisation of

the Community Detention system

nationally.[32] This concern applies

in the case of families detained in Leonora. At the time of the

Commission’s visit, there had been two referrals for consideration of

Community Detention placements for people detained in Leonora. This is a very

low rate of referral given that virtually all of the people detained in Leonora

would appear to meet one or more of the priority criteria under the Residence

Determination Guidelines.[33]

The Commission welcomed the announcement on 18 October 2010 that the Minister

for Immigration would begin to use his existing Residence Determination powers

to move some families and unaccompanied minors into Community

Detention.[34] The Commission has

encouraged the Australian Government to expand these efforts to include all

children in immigration detention and to implement them as quickly as

possible.

8 Health

and mental health services

Holding us here makes us stressed. We lose our tempers. We get

unwell. By the time we get our visas it is too late.” (Man detained in

Leonora)

Under international human rights standards, all people have a right to the

highest attainable standard of physical and mental

health.[35] Each person in detention

is entitled to medical care and treatment provided in a culturally appropriate

manner and to a standard which is commensurate with that provided in the general

community. This should include preventive and remedial medical care and

treatment including dental, ophthalmological and mental health

care.[36]

The Commission is of the view that there is a need for rigorous ongoing

monitoring of the delivery of health and mental health services in immigration

detention facilities in Australia, and has recommended that an independent body

be charged with this monitoring

function.[37] This is particularly

important as more people are being detained for longer periods of time.

During its visit to Leonora, the Commission had some concerns about the

provision of health and mental health services for people in immigration

detention, as summarised below.

8.1 Health

Health services are provided to people in the Leonora immigration detention

facility by IHMS, the contracted health service provider. A number of small

clinic rooms are located inside the facility. At the time of the

Commission’s visit, a new and more spacious health clinic was under

construction. The onsite IHMS health team consists of a Regional Health Manager

and two registered nurses. A general practitioner visits the facility to see

patients during two three-hour sessions each week.

The Commission welcomes efforts by health staff to ensure that people

detained in Leonora have access to appropriate services and treatment. The

Commission heard some positive feedback from people in detention about the

assistance provided by health staff. Other people, however, expressed

dissatisfaction about the medical treatment they had received.

The Commission had some concerns about the provision of health services for

people in the Leonora immigration detention facility. These included the

following:

  • The Commission is concerned about the impact on access to health services of

    detaining people in small, remote locations such as Leonora. This is a

    particular concern in terms of access to specialist and dental care. These

    services are not available for people in the Leonora facility – they

    require a referral and escorted transport to Kalgoorlie, a 230 kilometre

    drive.

  • The Commission heard a number of complaints from people in detention about

    long waiting periods for access to dental care. In some cases this was in

    situations where people claimed they were experiencing significant ongoing pain

    or had a relatively serious complaint – for example, where a filling or a

    tooth had fallen out. As noted, people in the Leonora facility are not able to

    access dental care in Leonora – they have to be referred and escorted to

    Kalgoorlie. DIAC informed the Commission that consideration was being given to

    bringing a dentist to Leonora to offer appointments through the local hospital.

    The Commission encourages prompt action on this issue.

  • The Commission met with a number of pregnant women in the Leonora facility,

    two of whom had not yet been seen by a general practitioner or provided with

    access to an ultrasound. They claimed they had not been informed of what

    antenatal care would be provided to them. The Commission has encouraged DIAC and

    IHMS to clarify the procedures and timeframes for provision of ante-natal care,

    and to ensure that this information is clearly communicated to all pregnant

    women in detention.

8.2 Mental health

Mental health services are provided to people in the Leonora immigration

detention facility primarily by IHMS. The onsite IHMS mental health team

consists of two mental health nurses and a psychologist. In addition, torture

and trauma services are provided by the Association for Services to Torture and

Trauma Survivors (ASeTTS). At the time of the Commission’s visit, there

was one ASeTTS counsellor based at the Leonora facility, but generally there are

two.

The Commission welcomes efforts by mental health staff to ensure that people

detained in Leonora have access to appropriate services and support.

However, as noted in section 5 above, the Commission has serious concerns

about the impacts that prolonged and indefinite periods of detention may have on

the mental health and wellbeing of people detained. The Commission heard about

some of those impacts from people in detention in Leonora. Many people expressed

extreme frustration about the length of time they had been detained and the

indefinite nature of their detention. Some people expressed concerns that the

uncertainty and prolonged period in detention may have adverse psychological

impacts on them if their detention continued much longer. Others expressed

concerns that their mental health or that of family members had already been

adversely affected.

The Commission had some concerns about the provision of mental health

services for people in the Leonora immigration detention facility. These

included the following:

  • The Commission is concerned about the impact on access to mental health

    services of detaining people in small, remote locations such as Leonora. This is

    a particular concern in terms of access to psychiatric services. These services

    are not available for people in the Leonora facility – they require a

    referral and escorted transport to Kalgoorlie, a 230 kilometre drive.

  • At the time of the Commission’s visit, DIAC and detention service

    provider staff in Leonora had not received training on the Psychological Support

    Program (the DIAC policy regarding the identification and support of people in

    immigration detention who are at risk of self-harm and

    suicide).[38] Appropriate staff

    training should be conducted as soon as possible.

During its visit

to Leonora, the Commission was concerned that there appeared to be cases in

which people met the priority criteria for consideration of a Community

Detention placement based on mental health concerns, but they had not been

referred for a Residence Determination.

The Commission has encouraged the Australian Government to make full use of

the Community Detention system.[39] As noted above, the Commission welcomed the October 2010 announcement that some

families and unaccompanied minors would be moved into Community Detention. Under

the Residence Determination Guidelines, people with significant physical or

mental health concerns, people who may have experienced torture or trauma and

people whose cases will take a considerable period to substantively resolve

should also be given priority consideration for Community

Detention.[40]

9 Education,

recreation and excursions

Please give us something to do.

(Man detained in Leonora, requesting that people in detention be able to

spend their time constructively by volunteering.)

Under international human rights standards, people in immigration detention

should have access to materials and facilities for exercise, recreation,

cultural expression and intellectual and educational pursuits to utilise their

time in detention in a constructive manner, and for the benefit of their

physical and mental health.[41]

9.1 Educational

activities

(a) Children

The CRC protects the rights of all children to education, to engage in play

and recreational activities appropriate to their age, and to participate in

cultural and artistic

activities.[42]

The Commission is pleased that school-aged children in immigration detention

in Leonora are able to attend the local school. This not only provides those

children with the opportunity to enjoy their right to education, but importantly

also provides them with opportunities to play and engage with other children

outside the detention environment. The Commission heard positive comments from

parents in detention about the quality of the education their children were

receiving at the local school, and heard positive feedback from the school about

some of the benefits of having a new group of culturally diverse children among

their student body. The Commission visited the school and observed children from

the detention facility engaging in meaningful educational and recreational

activities.

While the Commission welcomes this situation in relation to school-aged

children, the Commission is concerned that pre-school aged children in detention

in Leonora are provided with limited opportunities to leave the detention

environment and to take part in active learning and play activities. At the time

of the Commission’s visit, there were 23 children aged four years or

younger in the Leonora detention

facility.[43] As discussed in

section 7 above, many parents raised concerns about the limited availability of

meaningful activities for their pre-school aged children and the lack of safe

spaces for them to play.

At the time of the visit, there was a small crèche room inside the

facility that had been operating for a few hours each day. Parents welcomed

this, but some reported that a larger space and longer hours of operation were

needed. A larger crèche room was opened during the Commission’s

visit. The Commission welcomed this positive development. However, the new

crèche room was located outside the facility’s fence line. The

Commission encourages DIAC to ensure that the fence line is moved as soon as

possible so that people in detention will have freer access to this area, and to

work with Serco to increase the hours during which the crèche room is

accessible.

The Commission also encourages DIAC to explore the possibility of providing

pre-school aged children with appropriate opportunities to take part in active

learning and play activities outside the detention environment. In particular,

this might include making arrangements in order to allow four year old children

to attend the local pre-school.

(b) Adults

The Commission welcomes efforts to provide onsite English classes for adults

detained at the Leonora facility. Such classes are important both in providing

people with a constructive way to spend their time in detention, as well as

assisting them to improve their English communication skills in order to better

prepare them for living in the Australian community.

However, during its visit the Commission heard numerous complaints from

people in detention about the limited number of English classes for adults. Many

people claimed that they were only able to attend one English class each week,

and that often the level of instruction was not appropriate for them.

The Commission acknowledges the constraints that Serco staff have faced in

securing an adequate number of English teachers in Leonora, which is a very

small community. Such constraints reinforce the Commission’s concerns

about locating detention facilities in small, remote locations.

At the time of the Commission’s visit, plans were underway to hire an

additional teacher and to increase the number of English classes on offer. The

Commission welcomes these plans and encourages DIAC and Serco to ensure that all

people who wish to do so are able to participate in an adequate number of

English classes, taught at an appropriate level.

9.2 Recreation

The provision of regular, engaging and constructive activities is vital to

people’s capacity to cope in immigration detention, particularly when they

are detained for long periods of time.

During the Commission’s visit to the Leonora immigration detention

facility, many people expressed frustration about the length and indefinite

nature of their detention, and told the Commission that they would like to be

provided with further opportunities to spend their time in detention in an

engaged and constructive way.

The Commission welcomes efforts over past months to increase the availability

of recreational activities for people detained at the Leonora facility. Staff

facilitate a range of recreational activities inside the facility including

sewing, knitting, arts and crafts and occasional cultural cooking sessions. In

addition, volunteers have visited the facility on several occasions to run

recreational activities for people in detention.

Records provided by Serco suggested that significant efforts were being made

to run a broad range of recreational activities in the facility, but that these

efforts were impacted by resource constraints. In particular, staff shortages

forced the cancellation of a number of scheduled activities, usually because

Serco staff were required to escort people in detention to Kalgoorlie for

medical appointments.[44]

The Commission heard some positive comments from people in detention about

particular recreational activities offered in the Leonora facility. However, the

Commission also heard numerous complaints that there were not enough activities

conducted on a regular basis. Many people expressed frustration about not having

a constructive way to pass their time, and some said they felt this was having

impacts on their physical and mental health. This is a particular concern given

the lengthy periods many people are spending in detention.

A number of people expressed the desire to engage in some form of

constructive voluntary activity, either inside or outside the detention

environment. The Commission has encouraged DIAC to explore appropriate

volunteering opportunities.

As discussed in sections 6 and 9.1 above, the external and internal

recreation spaces in the Leonora facility were inadequate at the time of the

Commission’s visit. In particular there was no onsite gym area, there was

only one large recreation room to be shared by 200 people, the newly installed

soccer pitch and children’s play equipment were not freely accessible, and

parents raised concerns about the lack of safe spaces for their young children

to play.

In addition, the Commission was concerned about the lack of reading materials

for adults in the Leonora facility. There were a few books in English, but there

were virtually no multilingual reading materials onsite. While a small number of

people had been taken on an excursion to the local library, others were unaware

this possibility existed. There were no newspapers available either in English

or foreign languages, and some people expressed frustration about not being able

to read news about their home country. While internet access could alleviate

this to some extent, there was limited access to computers and not all people

were able to access news online – for example, there was no Tamil script

available on the computers.

9.3 Excursions

Providing people in immigration detention with regular opportunities to leave

the detention environment can be vital in assisting them to cope with the

deprivation of their liberty, particularly when they are detained for long

periods of time. People detained at the Leonora facility are subjected to

significant restrictions on their liberty. They are not permitted to leave the

facility unless they are under escort.

The Commission welcomes efforts to provide people detained at the Leonora

facility with opportunities to take part in escorted excursions to places

including a local children’s playground, a local oval, the community

recreation centre and a local museum. However, the Commission heard a

significant number of complaints from people in detention about the limited

number of excursions.

Serco provided the Commission with records which indicated that in the three

months leading up to the Commission’s visit, there had been between seven

and thirteen excursions conducted each week, with approximately 475 excursion

places per month on average.[45] That would have allowed each person the chance to leave the detention facility

on an escorted excursion on average two or three times each month.

While the Commission welcomes these efforts, it appears that not all people

in detention in Leonora were able to take part in excursions as often as that.

Some people reported being able to go on an excursion approximately once each

week, while others said they were able to go approximately once each month. A

small number of people claimed they had not been on any external excursions

during the time they had been detained in Leonora.

Some people claimed that there was ‘discrimination’ in decisions

about who was selected to participate in excursions, and some women reported

that men were taken on a much higher number of exercise related excursions. This

may indicate a need for clearer communication with people in detention about the

availability of excursions and the process for determining who participates.

The Commission encourages DIAC and Serco to ensure that all people detained

in the Leonora facility are provided with regular opportunities to participate

in external excursions.

10 Other

concerns

During its visit, the Commission heard a range of other concerns from people

in immigration detention in Leonora. These included the following:

  • The Commission heard numerous complaints from people in detention in Leonora

    about the high turnover in DIAC Case Managers. Some people claimed to have been

    assigned a new Case Manager on a monthly basis. In combination with their

    prolonged period in detention and delays with processing and security

    clearances, this turnover appeared to be causing significant frustration and a

    lack of faith in the refugee status assessment process. This is not a criticism

    of individual Case Managers in Leonora, some of whom the Commission heard

    positive comments about. Rather, it is a concern about the system of posting

    Case Managers to detention locations for short periods of time. The Commission

    encourages DIAC to ensure greater continuity in the Case Management service.

  • There were no regular religious services in the detention facility for

    people who practiced a religion other than Christianity, and people were not

    being provided with any opportunity to attend a place of worship outside the

    detention environment. The Commission welcomes efforts to provide a fortnightly

    Christian service inside the detention facility, and welcomes that support was

    provided to allow for one visit by an Imam. The Commission acknowledges the

    difficulties in providing access to religious services, given the limited number

    of religious representatives and groups in the Leonora community. However, these

    difficulties reinforce the Commission’s concerns about detaining people in

    such a small and remote location.

PART

C: Recommendations

Recommendation 1: Australia’s mandatory detention law should

be repealed. The Migration Act should be amended so that immigration detention

occurs only when necessary. This should be the exception, not the norm. It must

be for a minimal period, be reasonable and be a proportionate means of achieving

at least one of the aims outlined in international law. The limited grounds for

detention should be clearly prescribed in the Migration

Act.[46]

Recommendation 2: The Migration Act should be amended to accord with

international law by requiring that a decision to detain a person, or a decision

to continue a person’s detention, is subject to prompt review by a court.

To comply with article 9(4) of the ICCPR, the court must have the power to order

the person’s release if their detention is not lawful. The lawfulness of

their detention is not limited to domestic legality – it includes whether

the detention is compatible with the requirements of article 9(1) of the ICCPR,

which affirms the right to liberty and prohibits arbitrary

detention.[47]

Recommendation

3: Until the above legislative changes are implemented, the Australian

Government should avoid the prolonged detention of asylum seekers by:

  • Ensuring full implementation of its New Directions policy under which asylum

    seekers should only be held in immigration detention while their health,

    identity and security checks are conducted. After this, the presumption should

    be that they will be permitted to reside in the community unless a specific risk

    justifies their ongoing detention.

  • Ensuring that security checks are conducted as quickly as possible.

Recommendation 4: The Australian Government should

implement the outstanding recommendations of the report of the National Inquiry

into Children in Immigration Detention, A last

resort?.[48] These include that Australia’s immigration detention laws should be

amended, as a matter of urgency, to comply with the Convention on the Rights

of the Child. In particular, the new laws should incorporate the following

minimum features:

  • There should be a presumption against the detention of children for

    immigration purposes.

  • A court or independent tribunal should assess whether there is a need to

    detain children for immigration purposes within 72 hours of any initial

    detention (for example, for the purposes of health, identity or security

    checks).

  • There should be prompt and periodic review by a court of the legality of

    continuing detention of children for immigration purposes.

  • All courts and independent tribunals should be guided by the following

    principles:

    • detention of children must be a measure of last resort and for the

      shortest appropriate period of time

    • the best interests of children must be a primary consideration
    • the preservation of family unity
    • special protection and assistance for unaccompanied children.

Recommendation 5: People should not be held in

immigration detention in remote locations such as Leonora. If people must be

held in immigration detention facilities, they should be located in metropolitan

areas.

Recommendation 6: DIAC should pursue the adoption of a Memorandum of

Understanding with the Western Australia Department for Child Protection in

order to ensure clear guidelines are in place regarding responsibilities and

procedures relating to the welfare and protection of children in immigration

detention in Leonora.

Recommendation 7: DIAC should ensure that all relevant DIAC officers

and staff members of detention service providers are given a localised policy

setting out the requirements and procedures for making child welfare and

protection notifications in relation to concerns that arise in respect of

children in immigration detention in Leonora. Staff should also be provided with

training on this policy.

Recommendation 8: DIAC should explore possibilities for providing

pre-school aged children in immigration detention in Leonora with appropriate

opportunities to take part in active learning and play activities outside the

detention environment. In particular, this might include making arrangements in

order to allow four year old children to attend the local pre-school.

Recommendation 9: DIAC should ensure that people in immigration

detention in Leonora are provided with timely access to appropriate health and

mental health services. In particular, this should include timely access to

appropriate specialist, dental, ante-natal and psychiatric care.

Recommendation 10: DIAC should ensure that all people in immigration

detention in Leonora have access to:

  • adequate outdoor recreation spaces including sufficient grassy and shaded

    areas

  • adequate indoor recreation spaces including a gym or exercise room, and safe

    and appropriate play areas for young children

  • a range of recreational activities conducted on a regular basis
  • a sufficient number of English classes
  • an adequate supply of reading materials in the principal languages spoken by

    people in detention

  • regular opportunities to leave the detention environment on external

    excursions.

Recommendation 11: DIAC should ensure that all

people in immigration detention in Leonora who seek to do so have access to

regular religious services conducted by qualified religious

representatives.

Recommendation 12: DIAC should take appropriate measures to ensure

greater continuity in the Case Management service, both in Leonora and other

immigration detention locations.

 


[1] See http://www.humanrights.gov.au/human_rights/immigration/idc2011_leonora_response.html.
[2] The Commission’s reports of complaints about alleged human rights breaches

in immigration detention are available at http://humanrights.gov.au/legal/humanrightsreports/index.html.

The Commission’s national inquiry reports are A last resort? National

Inquiry into Children in Immigration Detention (2004) (A last resort), at http://humanrights.gov.au/human_rights/children_detention_report/index.html,

and Those who’ve come across the seas: Detention of unauthorised

arrivals (1998) (Those who’ve come across the seas), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 4 January 2011).
[3] See,

for example A last resort, note 2; Those who’ve come across the seas, note

2.
[4] Further information about

the Commission’s activities relating to immigration detention is available

at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9.
[5] See http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3.
[6] See Shire of Leonora website

at http://www.leonora.wa.gov.au/about_us/leonora_township.html (viewed 4 January 2011).
[7] See http://www.humanrights.gov.au/human_rights/immigration/idc2011_leonora_photos.html.
[8] Figures provided by DIAC, current as of 24 November

2010.
[9] DIAC provided the

Commission with statistics current as of 24 November 2010, which list the

citizenship of the 202 people in immigration detention in Leonora as follows: 52

from Iran, 50 from Afghanistan, 47 from Sri Lanka, 12 from Iraq, 39 stateless

and 2 not yet known.
[10] See International Covenant on Civil and Political Rights (1966) (ICCPR), art

9(1), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 4 January 2011); Convention on the Rights of the Child (1989)

(CRC), art 37(b), at http://www2.ohchr.org/english/law/crc.htm (viewed 4 January 2011).
[11] See, for example United Nations Human Rights Committee, A v Australia,

Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.2, at http://www.unhchr.ch/tbs/doc.nsf/

0/30c417539ddd944380256713005e80d3?Opendocument (viewed 4 January 2011);

United Nations Human Rights Committee, Van Alphen v The Netherlands,

Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990), para 5.8, at http://www.unhchr.ch/tbs/doc.nsf/0/a4269194de1b9228c1256ac700449405?Opendocument (viewed 4 January 2011); United Nations Human Rights Committee, Shafiq v

Australia, Communication No. 1324/2004, UN Doc CCPR/C/88/D/1324/2004 (2006),

para 7.2, at http://www.unhcr.org/refworld/country,,HRC,,BGD,,47975af921,0.html (viewed 4 January 2011); United Nations Human Rights Committee, Tillman v

Australia, Communication No. 1635/2007, UN Doc CCPR/C/98/D/1635/2007 (2010),

para 3.4, at http://www.unhcr.org/refworld/country,,UNHRC,,AUS,,4c19ea9d2,0.html (viewed 4 January 2011).
[12] See, for example United Nations Human Rights Committee, Tillman v

Australia, note 11, para 3.4; United Nations Human Rights Committee, Baban v Australia, Communication No. 1014/2001, UN Doc

CCPR/C/78/D/1014/2001 (2003), para 7.2, at http://www.unhcr.org/refworld/docid/404887ee3.html (viewed 4 January 2011); United Nations Human Rights Committee, D and E v

Australia, Communication No. 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006),

para 7.2, at
http://www.unhchr.ch/TBS/doc.nsf/0ac7e03e4fe8f2bdc125698a0053bf66/9dbcb136a858ebc5c12571cc00532f41?OpenDocument (viewed 4 January 2011); United Nations Human Rights Committee, Kwok Yin Fong

v Australia, Communication No. 1442/2005, UN Doc CCPR/C/97/D/1442/2005

(2009), para 9.3, at http://www.unhcr.org/refworld/country,,HRC,,CHN,,4b1d223d2,0.html (viewed 4 January 2011).
[13] See

further UNHCR, Revised Guidelines on Applicable Criteria and Standards

Relating to the Detention of Asylum Seekers (1999), guidelines 2, 3. At http://www.unhcr.org/3bd036a74.html (viewed 4 January 2011).
[14] See ICCPR, note 10, art 9(4); CRC, note 10, art

37(d).
[15] See, for example

United Nations Human Rights Committee, A v Australia, note 11, para 9.5.
[16] Department of Immigration

and Citizenship, Immigration Detention Statistics Summary (3 December

2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 13 January 2011).
[17] See C Evans, New Directions in Detention – Restoring Integrity to

Australia’s Immigration System (Speech delivered at the Centre for

International and Public Law Seminar, Australian National University, Canberra,

29 July 2008) (New Directions in Detention). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 10 January 2011).
[18] See New Directions in Detention, note 17.
[19] These figures are based on

statistics provided by DIAC, current as of 24 November 2010. They refer to the

overall time in immigration detention – including on Christmas Island, in

Leonora and in any other immigration detention facilities in

Australia.
[20] For further

discussion of the suspension, see Australian Human Rights Commission, 2010

Immigration detention on Christmas Island (2010) (2010 Christmas Island

report), section 8. At http://humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 4 January 2011).
[21] These figures are based on statistics provided by DIAC, current as of 24

November 2010. The total of 76 people included 34 from Afghanistan (17 adults

and 17 children) and 42 from Sri Lanka (27 adults and 15

children).
[22] Information

provided by DIAC, current as of 26 November

2010.
[23] See ICCPR, note 10,

art 9(1); CRC, note 10, art

37(b).
[24] Written communication

from DIAC to the Commission, 24 December

2010.
[25] Department of

Immigration and Citizenship, Immigration Detention Statistics Summary (3

December 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 13 January 2011).
[26] Children may be held in immigration detention in a range of immigration

detention facilities including Immigration Residential Housing, Immigration

Transit Accommodation and ‘alternative places of detention’. Further

information about the various places of detention is available on the

Commission’s website at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#5.
[27] See CRC, note 10, art

37(b). See further A last resort, note

2.
[28] See further A last

resort, note 2, sections 4.3.2, 6.6; UNHCR, Guidelines on Policies and

Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997),

guidelines 7.6, 7.7, at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b3360 (viewed 5 January 2011); UNHCR, Revised Guidelines on Applicable Criteria and

Standards Relating to the Detention of Asylum Seekers, note 13, guideline

6.
[29] These figures are based

on statistics provided by DIAC, current as of 24 November 2010.
[30] These figures are based on

statistics provided by DIAC, current as of 24 November 2010. They refer to the

children’s overall time in immigration detention – including on

Christmas Island, in Leonora and in any other immigration detention facilities

in Australia.
[31] A last resort,

note 2, executive summary, major finding

2.
[32] See 2010 Christmas Island

report, note 20, sections 11, 13.2; Australian Human Rights Commission, 2010

Immigration detention in Darwin (2010 Darwin report), section 7, at http://humanrights.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 5 January 2011).
[33] Minister for Immigration and Citizenship, Minister’s Residence

Determination Power Under S. 197AB and S. 197AD of the Migration Act 1958:

Guidelines (2009) (Residence Determination Guidelines), para

4.14.
[34] Under section 197AB of

the Migration Act 1958 (Cth), the Minister for Immigration has the power

to issue a Residence Determination permitting a person in immigration detention

to reside at a specified place instead of in an immigration detention facility.

This is known as Community

Detention.
[35] See International Covenant on Economic, Social and Cultural Rights (1966)

(ICESCR), art 12, at http://www2.ohchr.org/english/law/cescr.htm (viewed 6 January 2011); CRC, note 10, art

24.
[36] See Human Rights and

Equal Opportunity Commission, Immigration Detention Guidelines (2000),

section 13. At http://humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 6 January 2011).
[37] See

2010 Christmas Island report, note 20, section 19; 2010 Darwin report, note 32,

section 8.
[38] Department of

Immigration and Citizenship, Psychological Support Program for the Prevention

of Self-Harm in Immigration Detention (2009).
[39] See 2010 Christmas

Island report, note 20, sections 11, 13.2; 2010 Darwin report, note 32, sections

7, 8.
[40] Residence

Determination Guidelines, note 33, para

4.1.4.
[41] See Immigration

Detention Guidelines, note 36, section

7.2.
[42] CRC, note 10, arts 28,

31. See further A last resort, note 2, chapters 12, 13,

15.
[43] These figures are based

on statistics provided by DIAC, current as of 24 November 2010.
[44] For example, Serco records

provided to the Commission indicate that medical escorts to Kalgoorlie resulted

in the cancellation of scheduled crèche sessions in the Leonora

immigration detention facility at least once per week in each week of September

2010, and at least once per week in most weeks of October

2010.
[45] Serco provided the

Commission with copies of activities and excursion reports for the Leonora

immigration detention facility for the months of September, October and November

2010. Based on the Commission’s analysis of these reports, during November

2010 there were 52 excursions with 538 participants; during October 2010 there

were 26 excursions with 378 participants; and during September 2010 there were

28 excursions with 509 participants. It should be noted that these participants

are not unique individuals – some people would have participated in more

than one excursion each

month.
[46] Under UNHCR

guidelines, there should be a presumption against the detention of asylum

seekers–it should be the exception rather than the norm. Detention should

only be resorted to if there is evidence to suggest that other alternatives (for

example, reporting requirements) will not be effective in the individual case.

The permissible exceptions to the general rule that detention should normally be

avoided must be prescribed by law. The detention of asylum seekers may only be

resorted to if necessary to verify identity; to determine the elements on which

the claim to refugee status or asylum is based; to deal with cases where

refugees or asylum seekers have destroyed their travel and/or identity documents

or have used fraudulent documents in order to mislead the authorities of the

State in which they intend to claim asylum; or to protect national security or

public order. In assessing whether detention is necessary, considerations should

include whether it is reasonable and whether it is proportional to the

objectives to be achieved. See UNHCR, Revised Guidelines on Applicable

Criteria and Standards Relating to the Detention of Asylum Seekers, note 13,

guidelines 2, 3; UNHCR Executive Committee, Conclusion No. 44 (XXXVII) -

Detention of Refugees and Asylum Seekers (1986), at http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 4 January 2011).
[47] See, for example United Nations Human Rights Committee, A v Australia,

note 11, para 9.5.
[48] See A

last resort, note 2, section 17.3.