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2011 Immigration detention at Villawood

2011

Immigration detention at

Villawood

Summary of observations from

visit to immigration detention facilities at Villawood

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Contents


PART

A: Introductory

sections

1 Introduction

The Australian Human Rights Commission visited the immigration detention

facilities at Villawood from 21 to 25 February 2011. This statement contains a

summary 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 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 called for reforms to

Australia’s system of mandatory and indefinite immigration detention

– both in light of the impacts it has on people’s mental health and

wellbeing, and because it leads to breaches of Australia’s international

human rights obligations.During this time, the Commission has

investigated numerous complaints from people in immigration detention and

conducted two national inquiries into the mandatory detention

system.[2]

Because of its ongoing concerns, the Commission undertakes monitoring

activities which include conducting visits to immigration detention

facilities.[3] 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.[4]

3 Immigration

detention: the national context

The Commission’s longstanding concerns about Australia’s

immigration detention system have escalated over the past year, with ongoing

troubling incidents across the detention network. These have included six deaths

in detention (five of which appear to have been the result of suicide), suicide

attempts, serious self-harm incidents including lip-sewing, riots, protests,

fires, break-outs and the use of force against people in detention on Christmas

Island by the Australian Federal Police. These incidents have occurred in the

context of a detention network that is under serious strain due to a number of

factors, but most importantly because thousands of people are being held in

detention facilities for long periods of time.

As of 11 March 2011 there were 6819 people, including 1030 children, in

immigration detention in Australia – 4304 on the mainland and 2515 on

Christmas Island. More than half of those people had been detained for longer

than six months, and more than 750 people had been detained for longer than a

year.[5]

The Commission has repeatedly raised concerns about the detrimental impacts

that prolonged and indefinite detention has on people’s mental health, and

has repeatedly recommended reforms to bring the immigration detention system

into line with Australia’s international

obligations.[6]

In the Commission’s view, there is an urgent need for the Australian

Government to end the current system of mandatory and indefinite detention, and

to make greater use of community-based alternatives that are cheaper, more

effective and more humane than holding people in immigration detention

facilities for prolonged periods.

The Commission continues to urge the Australian Government to implement

reforms it announced in 2008 under which immigration detention is to be used as

a last resort and for the shortest practicable period, people are to be detained

in the least restrictive environment appropriate to their individual

circumstances, and there is a presumption that people will be permitted to

reside in the community unless they pose an unacceptable

risk.[7]

4 Overview: immigration

detention at Villawood

Villawood is located approximately 25 kilometres west of Sydney in New South

Wales. People are held in two immigration detention facilities there –

Villawood Immigration Detention Centre (IDC) and Sydney Immigration Residential

Housing (IRH). During the Commission’s visit, there were 413 people

detained in these facilities.[8] The

facilities are operated by Serco Australia, the detention service provider

contracted by the Australian Government.

The Commission has raised concerns about immigration detention at Villawood

for more than a decade.[9] In its 2008

Immigration detention report, the Commission raised serious concerns and

made recommendations about issues including the ageing and inappropriate

infrastructure at Villawood IDC; the prison-like nature of Stage 1 (the highest

security section, now called Blaxland compound); the lack of adequate access to

open grassy space, exercise facilities and reading materials; the limited

availability of external excursions; the use of restraints; the use of

separation areas; the lack of onsite interpreters; and the lack of onsite health

and mental health staff at Sydney

IRH.[10] While some of those issues

have been, or are in the process of being, addressed, others are yet to be acted

upon.

The Commission’s concerns about the detention facilities at Villawood

have increased over the past year as the number of people detained in the

facilities has increased and Villawood IDC has been the site of three apparent

suicides and a number of protests, hunger strikes and serious self-harm

incidents. These concerns prompted the Commission to conduct a comprehensive

visit and inspection in February 2011. Key concerns arising from the

Commission’s visit are set out in Part B of this report.

Approximately two months after the Commission’s visit, tensions erupted

at Villawood IDC when a small rooftop protest escalated into a much larger

protest during which fires caused significant damage to parts of the centre.

Those events will be considered as part of an independent review established by

the Minister for Immigration and

Citizenship.[11]

The Commission does not condone acts of violence or property destruction in

immigration detention facilities. It is important to recognise, however, the

context which preceded those events at Villawood IDC. Many people had been held

in detention for a year or more, with no end in sight and without the ability to

challenge their ongoing detention in a court. Many were acutely frustrated about

lengthy processing of refugee claims, serious delays with security assessments,

and a lack of regular updates on progress with cases.

This is not a new occurrence in Australia – this country has witnessed

in the past the serious impacts of detaining people for long and indefinite

periods of time. Those impacts include deterioration in people’s mental

health and protests in detention facilities.

A brief overview of the immigration detention facilities at Villawood is

provided below. Additional photos are available on the Commission’s website.[12]

4.1 Villawood

IDC

Welcome to Villawood

Villawood IDC is a high security immigration detention centre used to detain

adults. The operational capacity is approximately 450

people.[13] At the time of the

Commission’s visit, there were 386 people detained at Villawood IDC

– 358 men and 28 women.[14] The centre accommodates some of Australia’s longest term immigration

detainees, with some people in detention for a number of

years.[15]

Villawood IDC is used to detain a broad mix of people including asylum

seekers who arrived in Australia by plane or by boat, as well as

‘compliance cases’ – predominantly people who have overstayed

their visa or had their visa cancelled. At the time of the Commission’s

visit, of the 386 people detained at Villawood IDC, approximately half were

asylum seekers and half were compliance

cases.[16] There were people with

citizenship from more than 40 different countries, the largest groups being from

the People’s Republic of China, Sri Lanka, Iraq, Afghanistan, Iran, Fiji

and Vietnam.[17] There were also 36

people who claimed to be stateless or whose citizenship was

undetermined.[18]

Villawood IDC contains three main compounds: Blaxland (formerly Stage 1) is

the highest security compound and is used for a mix of detainees; Hughes

(formerly Stage 2) is generally used for compliance cases and asylum seekers who

have arrived by plane; and Fowler (formerly Stage 3) is generally used for

asylum seekers who have arrived by boat. In addition, Banksia compound

(contained within Hughes) is a small compound for women only. Photos of each

compound are available on the Commission’s website.[19]

4.2 Sydney

IRH

Immigration detention facility

Sydney IRH is a low security immigration detention facility, predominantly

used to detain families with children, unaccompanied minors and individuals with

particular vulnerabilities. The operational capacity is 24

people.[20]

At the time of the Commission’s visit, there were 27 people detained at

Sydney IRH – eleven men, eight women, three girls and five boys.[21] This included an unaccompanied

teenage boy, a baby born in Australia while his parents were immigration

detainees, and three pregnant women whose pregnancies were considered to be high

risk. Almost half were people with Sri Lankan citizenship, and the remainder

were people with citizenship from Iraq, Iran, Afghanistan, Vietnam, Pakistan and

Somalia.[22] Most were asylum

seekers, some who had arrived in Australia by boat and others by

plane.[23]

Unlike many of Australia’s immigration detention facilities, Sydney IRH

was purpose-built. The facility contains four duplex houses, each of which has

three bedrooms, two bathrooms, shared kitchen, living and dining areas and a

garage area that can be used for visits. The houses face a common area which

contains grassy space and a small garden, children’s playground equipment,

a basketball half-court and a small undercover recreation area. Photos of the

facility are available on the Commission’s website.[24]

The environment and conditions at Sydney IRH are highly preferable to those

at Villawood IDC. However, Sydney IRH is still a closed detention facility.

People remain in immigration detention and are not free to come and go. They are

only permitted to leave the facility on escorted excursions.

PART

B: Key concerns arising from the Commission’s visit to immigration

detention facilities at Villawood

The Commission welcomes efforts by DIAC and Serco managers and staff at

Villawood IDC and Sydney IRH to strive to provide appropriate conditions and

services for people in detention. During its visit, the Commission observed

that, in general, staff appeared to be working hard to ensure the appropriate

operation of the detention facilities, while being subject to numerous

constraints related to government policy, infrastructure limitations and limited

resources.

However, the Commission has serious concerns about the immigration detention

facilities at Villawood, and the wellbeing of the people detained in them. The

key concerns arising from the Commission’s visit are outlined below.

5 Mandatory

detention

We have not committed a crime. Someone needs to tell us why we

are being kept here.” (Woman in detention at Sydney

IRH)

It is inhuman for the Australian government to detain so

many people without them knowing their future. We are not criminals.”

(Man in detention in Hughes compound, Villawood IDC)

We had an idea that Australia respects human rights, but we

haven’t seen that here.” (Man in detention in Fowler compound,

Villawood IDC)

 

Australia continues to have one of the strictest immigration detention

systems 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 obligations

to refrain from subjecting anyone to arbitrary

detention.[25]

As is the case with virtually every detention visit the Commission conducts,

the overarching concern during the Villawood visit was the human impact of the

mandatory detention system. During its visit, the Commission spoke with people

in detention who expressed extreme frustration and a lack of comprehension about

why it was considered necessary to lock them up for the duration of their

immigration processing.

Under the Australian Government’s New Directions in Detention policy, immigration detention is meant to be used as a last resort and for

the shortest practicable period, people are meant to be detained in the least

restrictive environment appropriate to their individual circumstances, and there

is meant to be a presumption that people will be permitted to reside in the

community unless they pose an unacceptable

risk.[26]

Unfortunately, these principles have not been enshrined in legislation.

Further, the Commission seriously questions the extent to which they are being

implemented in practice, given the high number of people detained at Villawood

IDC and other detention facilities around Australia and the long periods many of

them have been in detention. The Commission is particularly concerned that these

principles are not being implemented in the case of asylum seekers who arrive by

boat and people whose visas are cancelled under section 501 of the Migration

Act 1958 (Cth) (Migration Act).

The Commission acknowledges that use of immigration detention may be

legitimate for a strictly limited period of time. However, the need to detain

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

circumstances. A person should only be held in an immigration detention facility

if they are individually assessed as posing an unacceptable risk to the

Australian community and that risk cannot be met in a less restrictive way.

Otherwise, they should be permitted to reside in community-based alternatives

while their immigration status is resolved – if necessary, with

appropriate conditions imposed to mitigate any identified risks.

6 Prolonged

and indefinite detention

Some people have been locked up for three or four years. They

don’t know what their future is. Australia is a country that is human and

cherishes human rights. How in this country can we be detaining people for such

a long time?”

(Man in detention in Hughes compound, Villawood

IDC)

We need to be able to answer our children about when they

can leave detention.” (Woman in detention at Sydney IRH with her

husband and children)

Fifteen months is too long to stay here.

We are human beings, we are not animals.” (Man in detention in Fowler

compound, Villawood IDC)

People here don’t have time. We are desperate here and our

families are in desperate situations.” (Man in detention in Hughes

compound, Villawood IDC)

 

The Commission is seriously troubled by the high number of people being held

in immigration detention for prolonged periods of time. As noted above, as of 11

March 2011 more than half of the 6819 people in detention had been detained for

longer than six months, and more than 750 people had been detained for longer

than a year.[27]

At the time of the Commission’s visit to Villawood IDC, sixty per cent

of the 386 people detained there had been in detention for longer than six

months, and more than forty five percent had been in detention for longer than

twelve months. Twenty six people had been in detention for more than two years

– this included eight people for more than three years, one person for

more than four years and one person for more than five

years.[28] These long periods of

detention are extremely concerning, and risk breaching Australia’s human

rights obligations.

The Commission is particularly concerned about the prolonged detention of

asylum seekers and refugees, as well as people whose visas have been cancelled

under section 501 of the Migration Act, as discussed in sections 8 and 9 below.

The prolonged detention of unaccompanied minors and families with children is

also of particular concern, as discussed in section 12 below. At the time of the

Commission’s visit to Sydney IRH, more than two thirds of the 27 people in

detention there, including seven children, had been detained for longer than six

months; more than one third, including three children, had been detained for

longer than twelve months.[29]

A range of factors are contributing to people being held in immigration

detention facilities, including those at Villawood, for prolonged periods. These

include the failure to implement key aspects of the Australian

Government’s New Directions, delays with notification of refugee

status assessment decisions, lengthy timeframes for security assessments

conducted by the Australian Security Intelligence Organisation (ASIO), and the

limited use of community-based alternatives to holding people in detention

facilities. Those issues are discussed further below.

The critical overarching factor is that Australia’s mandatory detention

system permits indefinite detention. There is no set time limit on the period a

person may be held in detention, and people are not able to challenge the need

for their detention in a court. During its visit to Villawood, the Commission

spoke with people who expressed disbelief and a sense of injustice that in a

country like Australia, they could be detained indefinitely without the ability

to challenge their detention before a judge.

Under Australia’s international human rights obligations, anyone

deprived of their liberty should be able to challenge their detention in a

court.[30] 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 International

Covenant on Civil and Political Rights (ICCPR), which protects the right to

liberty and prohibits arbitrary detention.[31] 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 detention on the grounds that the

person’s continued detention is arbitrary, in breach of article 9(1) of

the ICCPR.

Under the New Directions, the Australian Government has acknowledged

that ‘detention that is indefinite or otherwise arbitrary is not

acceptable’.[32] In the

absence of judicial review of detention, the New Directions committed to

the length and conditions of detention being subject to ‘regular

review’. Once in detention, a person’s situation should be reviewed

by a senior DIAC officer every three months to ensure that their continued

detention is justified. In addition, each person should have their detention

reviewed by the Commonwealth Ombudsman every six months.

The Commission has welcomed these review mechanisms in the past, but has

expressed concern that they are not sufficient to prevent indefinite or

arbitrary detention, in particular because the DIAC reviews are not conducted by

an independent body and the Ombudsman is not able to enforce his

recommendations.[33] In recent

reports the Commission has expressed concerns about the limited transparency

surrounding the review processes and

outcomes.[34]

The Commission encourages the Australian Government to allocate adequate

resources to allow for the three and six month reviews to be conducted on time

for each person in immigration detention. It also encourages the Australian

Government to increase transparency surrounding the detention review processes

and outcomes.[35]

7 Limited

use of community-based alternatives

They could monitor us in the community if they needed to, this

happens in other countries.”

(Man in detention at Sydney IRH with his wife and children)

 

As noted above, under the New Directions immigration detention is to

be used as a last resort, people are to be detained in the least restrictive

environment appropriate to their circumstances, and there is a presumption that

people will be permitted to reside in the community unless they pose an

unacceptable risk.[36]

There is an urgent need for the Australian Government to implement these

principles and to make greater use of community-based alternatives to holding

people in immigration detention facilities for prolonged and indefinite periods.

This should include alternatives to detention such as bridging visas, and

alternative forms of detention such as Community Detention.

In the Commission’s view, if a person must be taken into immigration

detention, in most cases the appropriate form of detention will be Community

Detention. This allows an immigration detainee to reside at a specified address

in the community, if necessary with conditions such as reporting requirements

and travel restrictions.

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

Community Detention nationally.[37] During its Villawood visit, the Commission was seriously concerned about the

limited use of Community Detention as an alternative to detaining people in the

facilities there. The Commission was informed that only three people from

Villawood IDC or Sydney IRH were moved into Community Detention during the 2010

calendar year, and that as of early March 2011, only one family had been moved

from Sydney IRH into Community Detention during

2011.[38]

The Commission met a significant number of people who remained in detention

at Villawood, despite appearing to meet one or more of the priority criteria for

Community Detention under the Residence Determination

Guidelines.[39] This included people

with significant physical health issues, people who appeared to have significant

mental health concerns (including having made serious self-harm attempts),

families with children, and long-term detainees who said they had received

Commonwealth Ombudsman reviews noting their eligibility for Community

Detention.

As discussed in section 12 below, the Commission has welcomed the commitment

by the Minister for Immigration to move a significant number of vulnerable

families and unaccompanied minors into Community Detention. DIAC has informed

the Commission that as of 27 April 2011, the Minister had approved 721 people

(including 368 children) for Community

Detention.[40] The Commission continues to urge the Minister and DIAC to make full use of

Community Detention for others in immigration detention, particularly those who

meet the priority criteria under the Residence Determination

Guidelines.[41] The Commission is

especially troubled by the limited use of Community Detention as an alternative

to facility-based detention for people with mental health concerns or

backgrounds of torture or trauma.

8 Asylum seekers and

refugees

Since we were born we haven’t known peace. We came here so

our children will have peace.”

(Woman in detention at Sydney IRH

with her husband and children)

Who is responsible for us being

here like prisoners? Why are we here? We are asylum seekers.”

(Man

in detention in Fowler compound at Villawood IDC)

The main

issue is being in detention for so long, especially after being accepted as

refugees.”

(Man in detention in Fowler compound at Villawood

IDC)

8.1 Failure to

implement the New Directions approach

As discussed in section 6 above, the Commission is concerned about the

prolonged detention of asylum seekers and refugees at Villawood.

Under the New Directions, detention of unauthorised arrivals is for

the purpose of conducting ‘health, identity and security checks’.

Once those checks have been successfully completed, ‘continued detention

while immigration status is resolved is unwarranted’. Thereafter, the

presumption is that an individual will be permitted to reside in the community

unless he or she poses an unacceptable

risk.[42]

The Commission has long been concerned that this is not being implemented in

practice for asylum seekers, particularly those who arrive by boat. Rather, most

of them are held in detention facilities for the duration of processing of their

refugee claims. The Commission has more recently become concerned that the

Australian Government appears to have abandoned this key aspect of the New

Directions. The current position appears to be that asylum seekers who have

arrived by boat will remain in immigration detention throughout processing of

their refugee claims, including during judicial review should they pursue that

avenue.[43] The Commission is

concerned that this contradicts the intention of the New Directions. It

wrongly conflates the period of a person’s detention with resolution of

their immigration status, instead of detaining a person based on the risk they

pose to the Australian community.

In the Commission’s view, a critical factor undermining implementation

of this key aspect of the New Directions has been the policy requirement

that asylum seekers who arrive by boat receive ASIO security assessments before

they are released from immigration detention facilities.

In the Commission’s view, the ‘security check’ under the New Directions should not be interpreted as requiring a full ASIO

security assessment for each person before they are released from an immigration

detention facility. In the Commission’s understanding, that is not a

requirement under the Migration Act, the Migration Regulations 1994 (Cth)

or the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).

Rather, the ‘security check’ should consist of a summary

assessment of whether there is reason to believe that an individual would pose

an unacceptable risk to the Australian community if they were given authority to

live in the community. That assessment should be made when the individual is

taken into immigration detention, or as soon as possible thereafter. A person

should only be held in an immigration detention facility if they are

individually assessed as posing an unacceptable risk to the Australian community

and that risk cannot be met in a less restrictive way. Otherwise, they should be

permitted to reside in community-based alternatives while their immigration

status is resolved. An ASIO security assessment, if deemed necessary, could be

conducted while the person was residing in the community.

In the Commission’s view, this would reflect the intention of the New Directions – that asylum seekers would be detained for a brief

period while initial checks were undertaken, then permitted to reside in the

community while their refugee claims were assessed.

8.2 Delays with ASIO

security assessments

Why am I still waiting? They did checks and took my fingerprints

when I first arrived.” (Man in Hughes compound at Villawood IDC who

had been in detention for 11 months. He had been recognised as a refugee and was

awaiting a security clearance.)

We don’t believe that

they are actually doing the checks.”

(Man in Fowler compound at Villawood IDC who had been waiting for a

security clearance for nine months since being recognised as a

refugee.)

They are playing with my mind. I can’t think any

more.”

(Man in Fowler compound at Villawood IDC who had been in detention for 13

months. He had been waiting for a security clearance for eight months since

being recognised as a refugee and was anxious due to the lack of information

provided about the process.)

 

The issue discussed above has become a matter of serious concern in part

because lengthy timeframes for ASIO security assessments are contributing to the

prolonged and indefinite detention of hundreds of people across the immigration

detention network. It is particularly disturbing that those affected include

people who have been assessed as refugees.

As of February 2011, there were approximately 900 people in immigration

detention in Australia who had been recognised as refugees but who remained in

detention awaiting ASIO security

assessments.[44] On 17 March 2011,

the Australian Government informed people in detention that, for most cases,

security assessments of people who at that time had been recognised as refugees

would be completed by the end of April

2011.[45] The Commission has

welcomed this commitment and hopes to see it fully implemented.

At the time of the Commission’s visit to Villawood, there were 37

people there who continued to be held in detention after being recognised as

refugees, awaiting their ASIO security assessments, for a period of up to 12

months.[46] Some people expressed

extreme frustration with the delay in their security assessment, and with the

lack of information provided to them by DIAC Case Managers or by other

Australian Government officials about the security assessment process, expected

timeframes, progress with their assessment and reasons for the delay. The

Commission has heard similar frustrations from people detained in other

locations.[47]

Because of the lack of provision of information, some people at Villawood who

had already experienced significant delays said they were not confident that

ASIO had even commenced their security assessment, and they feared the prospect

of protracted further detention. The omission of a decision date in the

DIAC-issued letters of notification of refugee status assessment decisions meant

that people did not know when that decision was made or when they had been

referred to ASIO for security assessment. In the Commission’s view, both

the date of decision and the date of referral to ASIO should be clearly stated

in such letters.

The Commission is concerned about the lack of transparency surrounding the

ASIO security assessment process for asylum seekers in immigration detention.

People undergoing a security assessment are provided with very little

information about how and when the security assessment will be conducted. In the

Commission’s view, people subject to ASIO security assessments should be

provided with information about when referrals are made to ASIO, the processes

involved in conducting security assessments, and the expected

timeframes.[48]

8.3 Refugee status

assessment process

There have been so many policy changes while we have been here.

It is very confusing.”

(Man in detention in Fowler compound at

Villawood IDC)

We bear all this – we just want someone to

look at our case.”

(Man in detention in Fowler compound at

Villawood IDC)

We need justice to process our

applications.”

(Man in detention in Fowler compound at Villawood IDC)

 

During the Commission’s visit to Villawood, many asylum seekers

expressed acute frustration about lengthy timeframes involved with assessing

their refugee claims, their associated prolonged detention, and the lack of

regular updates on progress with their cases. In particular, people complained

of frequent cancellation and rescheduling of independent merits review

interviews, with some people claiming to have waited up to ten months for their

interview.

The Commission heard concerns about perceived inconsistencies in the quality

of decision-making, with some asylum seekers claiming that some decision-makers

were ‘better’ than others and that their prospects for being

accepted as a refugee were dependent on which decision-maker was assigned to

assess their case.

The Commission also encountered confusion amongst asylum seekers about the

refugee status assessment process, as well as frustration about perceived

continual changes to the process. This has most likely been exacerbated by the

fact that many of those who demonstrated confusion have been in detention and

going through the assessment process for a year or more. During that time they

have witnessed the processing suspension imposed in April 2010 on asylum seekers

from Sri Lanka and Afghanistan, the High Court of Australia decision in M61/2010E and M69 v Commonwealth of Australia, and the subsequent

announcement of the new Protection Obligations Determination

process.[49]

During its visit the Commission encountered particular confusion amongst

asylum seekers about the impact of the High Court decision and their ability to

seek judicial review of negative decisions about their refugee status. The

Commission has been informed that DIAC has provided information to asylum

seekers in detention about these issues.

The Commission is concerned that asylum seekers who have arrived by boat are

informed that if they seek judicial review, they will remain in immigration

detention for the duration of that process. This may deter some people from

pursuing judicial review – an important and legitimate pathway –

because they feel unable to cope with the prospect of indefinite ongoing

detention while they await the outcome. As discussed in section 8.1 above, the

Commission is also concerned that this contradicts the intention of the New

Directions.

During its visit, the Commission was troubled by the ongoing impact of delays

in notifying asylum seekers in detention about decisions regarding their refugee

status. The Commission has raised concerns about this over the past six months,

after receiving reports that a significant number of asylum seekers in detention

were not notified of such decisions until weeks or months after the decisions

were made.[50] Such 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.[51]

The Commission was advised by DIAC that asylum seekers in detention at

Villawood had been affected by delays of between 22 and 27 days in notification

of negative decisions. The Commission was also informed that there were people

in detention at Villawood who had been affected by notification delays while

accommodated in other detention facilities. The Commission is aware of several

troubling cases, including a delay of four and a half months in notification of

a negative refugee status assessment decision that was subsequently overturned

at independent merits review.

DIAC has informed the Commission that new controls were introduced in

December 2010, including interim policy guidelines which set maximum timeframes

for notification of decisions. DIAC has also informed the Commission that the

new notification timeframes (five days, or seven days in exceptional

circumstances) are now being met at Villawood.

8.4 Indefinite

detention of persons with adverse security assessments

Our lives are at a zero point. We have not been told why we have

been rejected. We have not been told what will happen to us. We cannot fight

against ASIO.”

(Man in detention at Villawood who received an

adverse security assessment)

The only thing that we can do is

to go on hunger strike or kill ourselves. We are powerless.”

(Man in detention at Villawood who received an adverse security

assessment)

 

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

immigration detention at Villawood who had received adverse security assessments

from ASIO, including a man who had been separated from his wife and child and a

couple with three young children. The Commission met with some of the

individuals who had received adverse assessments, who were clearly distressed

about their prolonged detention and the prospect that it may continue

indefinitely. Some were also frustrated about the lack of information provided

on how their situation would be resolved.

The Commission is seriously troubled by the prospect that these individuals

(and a number of individuals in other immigration detention facilities who have

also received adverse assessments) will be held in detention for an indefinite

period of time. Some of them have already been in detention for more than a

year. The Commission has previously raised concerns about this issue, and urged

the Australian Government to ensure that durable solutions are provided for

these individuals, and they are removed from immigration detention facilities as

soon as possible.[52]

The Commission is concerned that there does not appear to be a clear

framework for considering placement options for such people while their

immigration status is resolved. Villawood IDC in particular is an extremely

restrictive environment in which to hold people who could be facing a very long

period in detention. In the Commission’s view, alternative placement

options should be considered for individuals who have received adverse

assessments, including less restrictive places of detention and Community

Detention with imposition of conditions necessary to mitigate any identified

risks.

The Commission is also concerned about the lack of transparency surrounding

adverse security assessments issued by ASIO. Under the ASIO Act, a person who

receives an adverse assessment is normally provided with a statement that sets

out information ASIO has relied on in making the decision. However, this

requirement does not apply to the vast majority of asylum seekers in immigration

detention.[53] Generally, they are

not entitled to be provided with information about the basis on which an adverse

assessment is made, meaning they are not provided with the information necessary

to contest the adverse assessment. This is particularly troubling given the

potential consequences for asylum seekers in detention who receive adverse

assessments, which could include indefinite detention, separation from family

members who may be released from detention into the community, and removal from

Australia.

Finally, the Commission is concerned about the limited access asylum seekers

in detention have to merits review and judicial review of adverse assessments.

While the Administrative Appeals Tribunal (AAT) has the power to review

adverse assessments, access to AAT review is denied to people who are not

Australian citizens or holders of either a valid permanent visa or a special

purpose visa.[54] In the

Commission’s view, this is contrary to basic principles of due process and

natural justice. The Commission supports the recommendations made by the

Inspector-General of Intelligence and Security that access to AAT review should

be extended to refugee

applicants.[55]

There is very little practical opportunity for substantive judicial review of

adverse assessments. While the High Court of Australia has held that ASIO

decisions are subject to judicial

review,[56] the ability of ASIO to

withhold from an applicant and the court the information upon which it has

relied means that challenging that information is virtually impossible. The

practical difficulties in obtaining the necessary evidence and the restricted

scope of procedural fairness in the context of ASIO security assessments as

interpreted by Australian courts make judicial review an ineffective appeal

avenue.

The Commission has recommended that the Australian Government explore options

for strengthening substantive judicial review of adverse assessments, including

options to ensure the provision of greater information to applicants or another

appropriate person. This might include, for example, the appointment of a

Special Advocate. In essence, this would be a security-cleared person who is

able to view both an original and a redacted summary of a security assessment to

ensure that, as far as is possible, unclassified material and reasons are

disclosed, and classified material is reviewed for

probity.[57]

8.5 Potential for

‘voluntary removal’

I have been in detention now for sixteen months and I am so

worried about my family. People go back home. Some people just give up. It is

not safe there. But it is not safe here either.”

(Man in detention

in Fowler compound at Villawood IDC)

They told us you have two

options – you can go back to your country, or you can wait for your

security clearance. It is not fair to tell us this.”

(Man in

detention in Fowler compound at Villawood IDC)

We have left our

families behind in very difficult situations and we are thinking about them all

the time.”

(Man in detention in Fowler compound at Villawood IDC)

 

The Commission is troubled about a number of key factors that, in

combination, are placing extreme pressures on asylum seekers and refugees in

detention facilities, including at Villawood. These include the psychological

impacts of being detained for long periods with no certainty about when they

will be released or what will happen to them when they are; confusion about the

refugee status assessment process and frustration about delays with processing;

frustration and uncertainty about ASIO security assessment processes and delays;

and the fact that they are informed that if they seek judicial review of their

negative refugee assessment, they will remain in immigration detention for the

duration of that process.

The Commission is concerned that these pressures are leading to mental

deterioration potentially resulting in self-harm among asylum seekers in

detention. Further, the Commission is troubled by the prospect that, in

combination with the availability of reintegration assistance, these pressures

could potentially lead to asylum seekers or recognised refugees seeking

‘voluntary removal’ to their country of origin even though they may

continue to face persecution or risks to their safety upon return.

The Commission is particularly concerned that a ‘voluntary

removal’ pathway may be suggested as a viable option for recognised

refugees who are feeling unable to cope with the prospect of indefinite ongoing

detention while they await their ASIO security assessment. During its Villawood

visit, the Commission was informed that refugees awaiting finalisation of their

ASIO security assessments have been told by DIAC Case Managers that they have

two options: to return to their country of origin or to remain in detention

while they await their security assessment.

The Commission notes that Case Managers are tasked with seeking to ensure the

timely, fair and lawful resolution of people’s immigration status through

interventions to achieve an appropriate immigration outcome. As such, efforts

should be targeted towards ensuring the expeditious completion of security

assessments, and exploration of options for people to reside in community-based

alternatives or to be placed in the least restrictive detention environment in

the interim.

9 People whose visas

have been cancelled under section 501

This is worse than prison. There we had more open space, I had a

job, we had more education classes.”

(Man in detention in Blaxland compound at Villawood IDC, whose visa had

been cancelled under section 501)

 

As noted in section 6 above, the Commission is particularly concerned about

the prolonged detention at Villawood IDC of people whose visas have been

cancelled under section 501 of the Migration Act (section 501 detainees). Many

of these people have lived in Australia for years or even decades, and have

strong ties to the Australian community including family members, friends and

jobs. Some have Australian partners or spouses, and some have children who are

Australian citizens or were born in Australia.

Usually a person’s visa is cancelled under section 501 because they

have been convicted of a criminal offence. If a prison sentence was imposed,

their visa is normally cancelled when they are at the end of serving their

sentence. They are then transferred from prison to immigration detention. Some

of them spend years in immigration detention while they challenge the decision

to cancel their visa, while travel documents are arranged, while diplomatic

assurances are sought from the country they will be returned to about their

safety on return, or while a claim for a protection visa is assessed.

The majority of section 501 detainees are held at Villawood IDC. At the time

of the Commission’s visit, there were 48 people in detention at Villawood

because their visas had been cancelled. Eight of those people had been detained

for longer than two years; three of those eight people had been detained for

longer than three years.[58] These

lengthy periods of detention are extremely concerning.

Under the New Directions, mandatory detention applies to

‘unlawful non-citizens who present unacceptable risks to the

community’; detention in an IDC is ‘only to be used as a last resort

and for the shortest practicable time’; and detention should be in the

‘least restrictive form appropriate to an individual’s

circumstances’.[59] The

Commission is concerned that these principles are not being applied on an

individual basis for people whose visas have been cancelled under section 501.

Rather, they are subject to mandatory detention, are virtually always held in

high-security IDCs, and are often detained for prolonged periods of time.

While many section 501 detainees have been convicted of a criminal offence,

once they are transferred to immigration detention they have completed their

prison sentence, if one was imposed. The expectation is that they have been

punished and rehabilitated by the correctional system. Thereafter, these

individuals should not be automatically categorised as posing an unacceptable

risk to the Australian community. Rather, the extent to which they might pose

any continuing risk should be determined on a case-by-case basis through an

assessment of their individual history and circumstances.

This concern has also been raised by the Joint Standing Committee on

Migration, which has stated that ‘risk assessments for section 501

detainees should focus on evidence, such as a person’s recent pattern of

behaviour, rather than suspicion or discrimination based on a prior criminal

record’.[60]

People whose visas have been cancelled under section 501 should only be held

in an immigration detention facility if they have been individually assessed as

posing an unacceptable risk to the Australian community and that risk cannot be

met in a less restrictive way. Alternative placement options should be

considered for such people, including less restrictive places of detention than

IDCs such as Villawood, and Community Detention with imposition of conditions

necessary to mitigate any identified risks. Consideration of appropriate

alternatives should begin as soon as DIAC becomes aware that an individual is

likely to have their visa cancelled and be taken into immigration detention.

For a number of years, the Commission has also raised broader concerns about

a range of human rights issues engaged by the section 501 visa cancellation

power. These concerns are outlined in a background paper, Immigration

detention and visa cancellation under section 501 of the Migration

Act.[61] While some improvements

were made with the introduction of a new Ministerial Direction in 2009, the

Commission remains concerned about the potential for the exercise of the section

501 power to lead to breaches of Australia’s human rights

obligations.[62] This is a

particular concern in relation to long-term residents with family members and

other strong ties in the Australian community. The Commission has recommended

that section 501 be reviewed with the aim of excluding long-term permanent

residents from the operation of the

provision.[63]

10 Physical conditions

of detention

Under international human rights standards, authorities should seek to

minimise differences between life in detention and life at liberty in the design

and delivery of detention services and

facilities.[64] People are held in

immigration detention under the Migration Act because they do not have a valid

visa.[65] They are not detained because they are under police arrest or because they have been charged

with or convicted of a criminal offence. The treatment of people in immigration

detention should therefore be as favourable as possible, and in no way less

favourable than that of untried or convicted

prisoners.[66]

The Commission’s key observations and concerns about physical

conditions of detention at Villawood IDC and Sydney IRH are outlined below.

10.1 Villawood

IDC

Please just tell them to solve our cases as soon as possible.

This detention is just like a jail.”

(Man in detention in Fowler

compound, Villawood IDC)

I like walking around. In this area

there is no room to do that.”

(Man detained in Blaxland compound,

Villawood IDC)

Every moment of this place is very painful. I

won’t be able to forget this place.”

(Man in detention in Fowler compound, Villawood IDC)

 

Blaxland compound, Villawood

Blaxland compound, Villawood IDC

Additional photos of

Villawood IDC are available on the Commission’s website

(a) Major

redevelopment

The Commission has raised concerns about the physical conditions at Villawood

IDC for many years.[67] In its 2008

Immigration detention report, the Commission raised serious concerns about

issues including the ageing and inappropriate infrastructure, the prison-like

nature of Stage 1 (now Blaxland compound), the lack of access to open grassy

space, and the use of separation areas. The Commission recommended that a

comprehensive redevelopment be undertaken, and that this include the demolition

of Stage 1 as a matter of

urgency.[68]

The Commission therefore welcomed the announcement by the Australian

Government in May 2009 that funding would be allocated for a major

redevelopment, and welcomes efforts made since that time in the planning and

design phase.

Pending the major redevelopment, some smaller interim works have been

undertaken at Villawood IDC, including the installation of a new visitors’

building and additional interview rooms for Hughes and Fowler compounds,

refurbishment of the Murray Unit, and refurbishment of the visitors’ area

and outdoor courtyards in Blaxland compound. The Commission welcomes these

interim works. However, the Commission has a number of ongoing concerns about

the infrastructure at Villawood IDC (as discussed below), and remains of the

view that the redevelopment should be undertaken as soon as possible.

The Commission made a number of recommendations about the redevelopment in

its submission to the inquiry by the Parliamentary Standing Committee on Public

Works in 2009. The Commission reiterates those recommendations, including that

the redevelopment should: include the demolition of Stage 1 (now Blaxland

compound); ensure that people are detained in the least restrictive form of

detention possible; and address the infrastructure concerns raised by the

Commission in its 2008

Immigration detention

report.[69]

The Commission is troubled by the plan that people detained in Blaxland

compound will be the last to be relocated during the redevelopment. In the

Commission’s view the priority should be ceasing use of Blaxland compound

as soon as possible. It is one of the most restrictive areas in all of

Australia’s immigration detention facilities. It is not appropriate to

continue use of this compound for another four years while the entire

redevelopment is undertaken.

(b) Ongoing

infrastructure concerns

As noted above, the Commission has a number of ongoing concerns about the

infrastructure at Villawood IDC. The centre was not purpose-built, the

infrastructure is ageing and dilapidated, and in the Commission’s view

much of it is inappropriate for the purpose for which it is being used. This

places considerable strain on detainees, staff and managers.

The Commission’s overarching concerns relate to the intrusive physical

security measures at Villawood IDC, which create an environment that feels harsh

and punitive. The centre is surrounded by high wire fences, some of which are

alarmed or electrified; the internal compounds are separated by further high

wire or thick metal fences; many areas are under camera surveillance; and there

are static security guards stationed around perimeter fences.

The Commission’s most serious concerns relate to the physical

conditions in Blaxland compound, the highest security section. As noted above,

the Commission has recommended that this compound be demolished. The Commission

welcomes the interim works completed over the past few years, in particular the

refurbishment of the visitors’ area and the outdoor courtyards. However,

Blaxland compound remains one of the most restrictive and prison-like areas in

the detention network. There are intrusive security measures including

prison-like perimeter fences, razor wire and camera surveillance; there is very

limited access to open outdoor areas; most detainees share crowded dormitory

bedrooms with virtually no privacy; and a complex mix of detainees is held

together in a very confined space.

The conditions for people in Blaxland compound appear to have been made even

more restrictive in response to a number of escapes. During its visit, the

Commission was particularly concerned that detainees were not permitted to

access some of the larger outdoor courtyards, which were kept locked. According

to DIAC and Serco, this was because of unsecure fencing and concerns about the

possibility of escapes, and access to the courtyards would be permitted once

work had been completed on the fences. This was expected to take three to four

months. It is of significant concern that people are being detained in such a

restrictive environment, with very limited access to open outdoor areas, because

of inadequate infrastructure. The Commission has urged DIAC to rectify this

matter as quickly as possible.

The Commission also has concerns about the adequacy of the accommodation and

facilities in Fowler and Hughes compounds, particularly given the number of

people they are being used to accommodate. For example, during the

Commission’s visit people detained in Fowler compound were sharing small

bedrooms with two or three other people. They had very little space or privacy,

and no lockable space to store their personal belongings. While this situation

might be acceptable for very brief periods, many of these people had already

been in detention for more than a year. The Commission encourages DIAC to

refrain from increasing the number of people detained at Villawood IDC in order

to ensure that further pressure is not placed on people in detention and already

strained facilities.

Further, in the Commission’s view, the recreational and educational

facilities at Villawood IDC are inadequate, and the outdoor recreation areas are

in need of additional shade and grass. These issues should be addressed as part

of the redevelopment. Each compound should have adequate indoor areas for

recreational and educational activities, a freely accessible library area

stocked with reading materials in languages spoken by people in detention,

adequate outdoor recreation spaces including grassy and shaded areas, and a gym

area that provides adequate safety and privacy for detainees. The facilities in

Blaxland compound in particular currently fail in most of these areas. There is

virtually no library, no dedicated space for educational activities, and limited

access to outdoor recreational areas.

(c) Use

of separation areas

In its 2008

Immigration detention report, the Commission raised serious concerns about

the use of separation areas at Villawood IDC including the Management Support

Unit (now the Murray Unit) and the observation rooms in Stage 1 (now Blaxland

compound).[70]

The Commission welcomes the fact that the old observation rooms in Blaxland

compound are no longer in use, and have been replaced with a new annexe.

However, Blaxland annexe is an extremely restrictive environment. There is

little indoor space, very limited outdoor space (and all of it caged), little

natural sunlight, no space for walking or exercising, and no exercise equipment.

There is almost no privacy for detainees, with constant CCTV surveillance.

It is troubling that there is no clear written policy governing the placement

of people in Blaxland annexe, given the additional restrictions placed on a

person’s liberty. In the Commission’s view there should be a written

policy setting out the decision-making process and criteria for placing a person

in the annexe, along with requirements for each person’s placement to be

reviewed on a regular basis and for information to be provided to the person

about the outcome of that review and the reasons for the decision.

The Commission is concerned about the use of Blaxland annexe for the mixed

purposes of managing people who have been involved in violent or aggressive

behaviour at the same time as monitoring people who have been placed on

observation because they are at risk of suicide or self-harm. This potentially

poses risks to the psychological wellbeing and physical safety of the latter

group. These groups should be managed differently and in physically separate

locations.

The Commission is also concerned that people in other compounds may be placed

in Blaxland annexe for observation if they are considered to be at risk of

suicide or self-harm. Because of the restrictive nature of the annexe, this may

deter people from revealing the extent of their psychological distress for fear

of being moved. The consultant psychiatrist on the Commission’s team was

of the view that this was occurring in the case of a number of individuals. The

Commission has raised concerns about this issue in past

reports.[71] In response to the

Commission’s 2008 report, DIAC stated that once the Management Support

Unit (now the Murray Unit) was refurbished, people from other compounds would no

longer need to be transferred to Stage 1 (now Blaxland compound) for

observation.[72] This has not yet

been implemented, despite the completion of the refurbishment in mid-2010.

The Murray Unit is a small fenced-in compound used to separate individuals

from the general detainee population. The Commission welcomes the refurbishment

of the Murray Unit, but has some ongoing concerns about the infrastructure,

environment and facilities. These include that there is a very limited amount of

open outdoor space; that there is no space or equipment for people to be able to

exercise; and that there are no landline phones or internet facilities.

The Commission’s most significant concerns relate to the downstairs

section of the Murray Unit, which is extremely punitive. The bedrooms are

essentially prison cells. People in these rooms are monitored on CCTV, so they

have no privacy. People should not be accommodated in these rooms for any longer

than is absolutely necessary. Further, people should not be locked in these

rooms except for the containment of physical aggression and for the safety of

those around them, and any such detention should be restricted to emergency

management for the shortest possible time. For people placed in these rooms for

management of psychological or psychiatric disorders, it should only be until

they can be psychiatrically assessed and a psychiatric management plan can be

implemented, including admission to hospital where appropriate.

As noted above, the Commission is concerned about people on suicide or

self-harm observation being placed in Blaxland annexe. If adequate support

cannot be provided to an individual in their own compound, and it is considered

necessary by mental health staff to separate that individual for a short period

of time for their own safety or wellbeing, in the Commission’s view it

would be more appropriate to consider placing that person in the upstairs

section of the Murray Unit for a short period. This area is less restrictive and

has more open space than Blaxland annexe.

10.2 Sydney IRH

We can tolerate this, but we need a deadline.” (Man in

detention at Sydney IRH, talking about the uncertainty of indefinite

detention)

We just want stable conditions for our children to

have healthy mental wellbeing.”

(Woman in detention at Sydney

IRH)

My head feels like it’s going to explode.” (Woman

in detention at Sydney IRH)

 

As noted in section 4.2 above, the environment and conditions at Sydney IRH

are highly preferable to those at Villawood IDC. The Commission has noted this

in past reports, and recommended that DIAC fully utilise the IRH as an

alternative to detaining people at the

IDC.[73]

Sydney IRH provides a less punitive physical environment than Villawood IDC,

with security measures that are not as intrusive. There are no high wire fences,

razor wire, or small walled-in courtyards. Rather, the facility is surrounded by

residential style fencing and external areas are monitored by cameras and an

alarm system. The IRH is a much newer facility and, unlike Villawood IDC, it was

purpose-built. Accommodation is in duplex houses which provide people with a

greater level of privacy and autonomy. Often they have their own bedroom, and

they are able to cook their own meals. These factors combine to create an

environment that is more comfortable and less tense than in Villawood IDC.

However, Sydney IRH is still a closed detention facility. People remain in

immigration detention and are not free to come and go. They are only permitted

to leave the facility on escorted excursions. Despite the preferable physical

conditions, people at the IRH may still suffer significant psychological impacts

as a result of the deprivation of their liberty. The Commission met with a

number of individuals and families during its visit who spoke about these

impacts. One of the Commission’s most significant concerns about

conditions for people detained at Sydney IRH relates to the lack of onsite

mental health services, as discussed in section 11.2(c) below.

As noted in section 6 above, the Commission continues to be particularly

concerned about the prolonged detention of unaccompanied minors and families

with children. At the time of the Commission’s visit to Sydney IRH, more

than two thirds of the 27 people in detention there, including seven children,

had been detained for longer than six months; more than one third, including

three children, had been detained for longer than twelve

months.[74] The Commission spoke

with parents who talked about the difficulties of trying to maintain a

‘normal family life’ in a detention environment for such long

periods. Further concerns about the detention of children at Sydney IRH are

outlined in section 12 below.

While the Commission generally welcomes the standard of the facilities at

Sydney IRH, there is a need for dedicated interview rooms and greater space for

recreational and educational activities. Currently, interviews are conducted in

a non-soundproof room that is also used as the recreation room and as an office

for the activities coordinator. The Commission has been informed that an

extension to the Sydney IRH has been approved which will include two interview

rooms and enhanced recreational

facilities.[75]

11 Physical and mental

health

Under international human rights standards, all

people have a right to the highest attainable standard of physical and mental

health.[76] 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.[77]

At the time of its visit, the Commission had significant concerns about the

provision of physical and mental health services for people in immigration

detention at Villawood, particularly in the case of mental health. These

concerns were informed by a consultant psychiatrist who was part of the team

conducting the Commission’s visit.

Concerns about provision of physical and mental health services have been one

of the most troubling aspects of many of the Commission’s detention visits

over the past two years. The Commission has repeatedly recommended that an

independent body should be charged with monitoring the provision of physical and

mental health services in immigration detention, and adequate resources should

be allocated to that body to fulfil this

function.[78] While the Detention

Health Advisory Group currently plays an important advisory role, it is not

sufficiently resourced to monitor physical and mental health service provision

in detention facilities on a regular and ongoing basis.

11.1 Physical health

(a) Villawood

IDC

During its visit to Villawood IDC, the Commission met with staff members of

the detention health services provider, International Health and Medical

Services (IHMS). IHMS provides onsite physical and mental health services to

people in detention at Villawood IDC under a contract with DIAC. The IHMS

physical health staff at Villawood IDC includes a Regional Manager and nurses

who hold clinics six days a week. General Practitioners run clinics onsite five

days a week. In addition, a dentist is onsite once a week, physiotherapy

services are provided once a week and optometry services are provided once a

month.

At the time of the Commission’s visit, the IHMS team worked out of a

clinic situated in a large demountable building at Villawood IDC, outside the

fences of the accommodation compounds. The clinic was badly damaged by fires

during the riots that took place at Villawood IDC in late April 2011, two months

after the Commission’s visit. Following the riots, a temporary clinic was

established in interview rooms adjacent to the visitors’ area.

The IHMS health staff with whom the Commission met appeared hardworking and

committed to providing a high level of service to people in detention at

Villawood IDC. However, the Commission has a number of concerns about physical

health service provision at Villawood IDC.

The Commission’s most significant concern relates to the staffing level

of the IHMS health service, which appears to be inadequate given the number of

people in detention. This has a variety of impacts on the quality and timeliness

of physical health services. For example, health inductions for newly arrived

detainees are not always conducted within the required timeframes. The

Commission is also concerned that there is no IHMS presence at Villawood IDC

overnight, meaning that Serco officers must rely on telephoning an IHMS triage

helpline or calling an ambulance.

The Commission has recommended that DIAC consider increasing the staffing

level of the IHMS physical health service at Villawood IDC. In addition, DIAC

should require at least a minimal IHMS presence at Villawood IDC twenty four

hours per day, seven days per week. There must also be capacity for IHMS staff

to access and visit detainees within the compounds including the separation

areas to provide assertive outreach health care.

A further concern at Villawood IDC relates to the high level of prescription

and use of psychotropic medications, including antipsychotics and

antidepressants, for their sedative effect. This is discussed further in section

11.2(b) below. Medication is dispensed by IHMS nurses at five o’clock in

the afternoon, and it must be taken at that time. This is problematic for people

taking medication that has a sedative effect, as they may fall asleep and miss

the opportunity to eat dinner, which is only served during particular hours.

Increased IHMS staffing and a 24 hour presence at Villawood IDC would enable

such medication to be dispensed at a more appropriate time of day.

(b) Sydney IRH

Sydney IRH differs significantly to Villawood IDC when it comes to the

delivery of physical and mental health services. IHMS is not contracted to

provide physical or mental health services at Sydney IRH, and there are no IHMS

staff based onsite. Rather, the IRH operates on a community-based model. People

detained at the IRH can make a request to a Serco officer, who will make an

appointment at a specified health clinic in the community and arrange for the

person to be escorted to the appointment.

The Commission supports this model to the extent that it means that people

can access health services in the community rather than in the detention

environment. However, in practice it raises a number of significant concerns,

which are exacerbated by the fact that Sydney IRH is being used to accommodate

vulnerable people, including pregnant women and families with children, who are

spending long periods in detention.

The Commission is concerned that there are no onsite physical or mental

health staff or services at Sydney IRH. This is a particular concern in terms of

mental health, as discussed in section 11.2(c) below.

11.2 Mental health

It is unbearable. We feel like we are going mad.”

(Woman in detention at Sydney IRH)

Mentally we are

suffering. Prolonged detention is very harmful to human health – we are

nearly all collapsed psychologically.”

(Man in detention in Hughes

compound, Villawood IDC)

My hope has all gone now. I’m

young but I’m feeling that my life is destroyed. And my thinking is

destroyed. There were things that I used to be able to do that I can no longer

do.”

(Man in detention in Fowler compound, Villawood

IDC)

The mental torture kills you from the inside.”

(Man in detention in Hughes compound, Villawood IDC)

And

the people who get out after a long time, they are so depressed. They cannot

learn or help themselves. It is hard for them. If they give us English classes

when we are here, we will forget everything when we get out. The people who have

left here are mad now, they are not healthy people.”

(Man in detention in Fowler compound, Villawood IDC)

 

(a) Impacts of prolonged

and indefinite detention on mental health

The Commission has long held serious concerns about the detrimental impacts

on people’s mental health and wellbeing when they are held in immigration

detention facilities for prolonged and indefinite periods of time. The

Commission has repeatedly raised these concerns with DIAC and successive

Ministers for Immigration, and in public reports regarding conditions in

immigration detention

facilities.[79]

The Commission’s concerns have escalated over the past year as

thousands of people are being detained for prolonged periods, and clear evidence

has become available of the poor mental health of many people in detention. This

includes high rates of self-harm and five apparent suicides in immigration

detention facilities – three of which occurred at Villawood IDC.

During its visit, the Commission was seriously concerned about the noticeable

impacts of holding people in detention for prolonged and indefinite periods.

Many people spoke of feelings of frustration, distress and demoralisation after

being detained for a long period of time, and many spoke of the uncertainty and

anxiety caused by being detained for an indefinite period of time. People also

spoke about the psychological impacts of their prolonged detention, including

high levels of sleeplessness, feelings of hopelessness and powerlessness,

thoughts of self-harm or suicide, and feeling too depressed, anxious or

distracted to take part in recreational or educational activities. The

Commission was troubled by the palpable sense of frustration and incomprehension

expressed by many people. This appeared to have contributed to marked levels of

anxiety, despair and depression, leading to high use of sedative, hypnotic,

antidepressant and antipsychotic medications and serious self-harm incidents.

As discussed in section 7 above, during its visit to Villawood the Commission

was troubled by the limited use of Community Detention as an alternative to

facility-based detention for people with mental health concerns or backgrounds

of torture or trauma. The Commission met with people who remained in detention

at Villawood despite appearing to meet one or more of the priority criteria for

Community Detention.[80] This

included individuals who appeared to have significant mental health concerns

(including having made serious self-harm attempts), and individuals who claimed

to have been exposed to traumatic events in their home countries.

The Commission continues to urge the Minister and DIAC to make full use of

Community Detention, particularly for people who meet the priority criteria

under the Residence Determination Guidelines. This includes people with

significant mental health concerns and people who may have experienced torture

or trauma.[81]

(b) Mental health

services at Villawood IDC

During its visit to Villawood IDC, the Commission met with IHMS mental health

staff, who provide onsite mental health services under a contract with DIAC. The

IHMS mental health staff at Villawood IDC included a team leader, a mental

health nurse, two psychologists and two counsellors. In addition, there were

visits by a psychiatrist around four times each month.

The IHMS mental health staff with whom the Commission met appeared

hardworking and committed to providing a high level of service to people

detained at Villawood IDC. However, the Commission has a number of significant

concerns about mental health service provision at Villawood IDC.

The Commission’s primary concern relates to clinical governance of the

mental health service. At the time of the Commission’s visit, clinical

responsibility fell on the mental health team leader, a psychologist. This is

not appropriate, particularly given the high number of people being detained at

Villawood IDC for prolonged periods, the mental health impacts of prolonged

detention, and the complex nature of the caseload. Mental health services should

be overseen by a consultant psychiatrist who can provide clinical supervision of

staff and accept clinical responsibility for the provision of clinical care.

This is a concern that has arisen in connection with visits to other detention

facilities, in particular those in Darwin and on Christmas Island. DIAC should

address this matter in a consistent way across the detention network.

The Commission’s additional concerns about mental health service

provision at Villawood IDC include the following:

  • The staffing level of the IHMS mental health service appears to be

    inadequate to address the needs of the high number of people in detention at

    Villawood IDC and the complex nature of the caseload. This is a particular

    concern in light of the introduction of the Psychological Support Program for

    the Prevention of Self Harm in Immigration Detention (PSP), which has increased

    the number of referrals to the mental health

    team.[82] The Commission has

    recommended that DIAC consider increasing the staffing level of the IHMS mental

    health service at Villawood IDC. This should also be addressed across the

    detention network to ensure that IHMS staffing in each detention facility is

    adequate to meet the mental health needs of the detainee population and to fully

    implement the PSP. Improvement in staffing levels could also usefully

    incorporate an extended hours mental health service.

  • The scope of mental health services provided at Villawood IDC is limited. In

    particular, the current IHMS contract (unlike the previous one) does not extend

    to active outreach in the accommodation compounds. This should be rectified. The

    lack of outreach means that IHMS staff are unable to gain an accurate

    appreciation of the psychological environment within the centre; may be unable

    to identify individuals at risk of psychiatric disorder and/or self-harm at an

    early stage; and cannot regularly monitor the mental state of individuals who

    have been referred to them and who are receiving treatment. This is a particular

    concern in terms of people detained in the separation areas where active

    involvement of mental health staff in the monitoring and treatment of people at

    risk of self-harm and suicide is essential. The Commission has been informed

    that IHMS plans to provide mental health staff to walk the areas of the centre.

    The Commission welcomes this initiative and encourages its inclusion in the IHMS

    contract.

  • As noted in section 11.1(a) above, the Commission is concerned about the

    high level of prescription and use of psychotropic medications, including

    antipsychotics and antidepressants, for their sedative effect in order to manage

    the high levels of sleeplessness among people in detention. During its visit,

    the Commission was informed that there were 50 to 60 people at Villawood IDC on

    antidepressant medication and an additional number on antipsychotic medication.

    This would appear to be a poor pharmacological solution to an environmental

    problem contributed to by the lack of opportunity for physical activity and the

    other factors described above that contribute to anxiety, distress,

    demoralisation and depressive symptoms.

(c) Mental health at

Sydney IRH

As discussed in section 11.1(b) above, the Commission is concerned that there

are no onsite physical or mental health staff or services at Sydney IRH. This is

a particular concern in terms of mental health.

People detained at the IRH are expected to self-manage their mental health

status and to seek an appointment in the community if they feel the need. They

can do this by making a request to a Serco officer, who will make an appointment

and arrange for the person to be escorted to it. The Commission welcomes the

fact that people can attend appointments in the community, rather than in the

detention environment. However, there are likely to be situations in which

people in need of mental health care do not seek it for a range of reasons

including stigma, a lack of mental health awareness and a diminished capacity to

self-manage. This is a particular concern at Sydney IRH because it is used for

the detention of vulnerable individuals and families, many of whom have been

detained for long periods and some of whom have backgrounds of torture or

trauma.

The Commission raised concerns about this issue in its 2008

Immigration detention report, and recommended that people detained at Sydney

IRH be given the option of accessing health and mental health staff and services

onsite.[83] In response, DIAC stated

that from November 2008, onsite psychology and counselling services became

available at the IRH.[84] At the

time of the Commission’s 2011 visit, this was not the case. Following that

visit, the Commission has recommended that DIAC require that IHMS provide at

least a minimal onsite presence at Sydney IRH.

The Commission is also concerned that currently day to day monitoring of the

mental health and wellbeing of people detained at Sydney IRH essentially rests

with Serco officers, who are not appropriately qualified or adequately trained

to fulfil this role. Additional mental health training, including PSP training,

should be provided for these officers.

11.3 Self-harm and

suicide

No one came to kill themselves. They came here to live. Because

of the situation they are pushed to suicide.”

We are suffering emotionally terribly in detention. In six months

three people have killed themselves in here. It is becoming a normal

thing.”

I have seen a lot of bad things in this place.”

Everyone is in a similar mental state – thinking about

dying.”

(Men in detention in Fowler compound, Villawood IDC)

 

(a) Self-harm

The Commission has raised concerns about self-harm among people in

immigration detention in a number of recent reports, and has also directly

raised concerns with DIAC and the Minister for

Immigration.[85] The Commission has

become increasingly alarmed over the past few months about the high rates of

self-harm across the detention network, including at Villawood. During its

visit, the Commission heard about a number of self-harm incidents, including

voluntary starvation and ingestion of detergent and chemicals. At Villawood IDC

the Commission met with people who had visible scars from self-harming, and with

one person who had recently been hospitalised following serious self-harm.

DIAC provided the Commission with records indicating that over a six month

period there were 18 reported incidents of actual or attempted self-harm at

Villawood IDC.[86] This included

people who cut themselves, people who struck their head, and a man who attempted

to hang himself the day after another man apparently committed suicide at

Villawood IDC.[87]

The prevention of self-harm in detention and psychological support for people

at risk of self-harm are addressed by the PSP

policy.[88] The Commission is

concerned that the PSP policy has not been adequately implemented across the

detention network. In particular, the Commission has been concerned during a

number of detention visits, including to Villawood, to learn that many staff

have not received PSP training. In the Commission’s view, there is a need

for a national framework for the delivery of PSP training on a rolling basis to

ensure that all relevant Serco, DIAC and IHMS staff are provided with initial

and refresher training.

Further, as discussed in section 11.2(b) above, the Commission is concerned

that IHMS staffing levels at Villawood IDC appear to be inadequate to allow for

full implementation of the PSP policy, and is of the view that there is a need

for IHMS mental health staff to conduct active outreach in the accommodation

compounds at Villawood IDC. This would enhance their ability to identify

individuals at risk of psychiatric disorder and/or self-harm, regularly monitor

the mental state and promote adherence to treatment of individuals who are being

managed by them.

The Commission has been informed that, given recent events in immigration

detention, DIAC intends to undertake a review of the PSP policy and its

implementation. This report makes a number of observations about the

implementation of the PSP policy and DIAC’s other two mental health

policies, which address mental health screening and identification and support

of people who are survivors of torture or

trauma.[89] While these policies are

in force, they should be fully and effectively implemented across the detention

network. However, given the poor mental state of many people in detention, the

Commission supports the planned PSP review. The Commission has recommended that

it be broadened to include review of the other two mental health policies and

their implementation. The Commission has urged DIAC to commence this review as

soon as possible.

(b) Suicides and

critical incident response

The Commission is deeply troubled by the deaths of six men in

Australia’s immigration detention facilities over the past nine months,

five of which appear to have been the result of suicide. This includes the

apparent suicides of three men at Villawood IDC in the space of three

months.[90] There have also been a

number of reported suicide attempts at different detention facilities, including

an attempted hanging at Villawood IDC the day after one of the apparent suicides

there.[91]

The deaths at Villawood IDC will be examined by the NSW coroner. The

Commission will monitor those proceedings. Given the pending coronial inquiries,

the Commission did not investigate the precise circumstances surrounding those

deaths during its visit to Villawood. However, the Commission did hold

discussions with staff and people in detention about the response to the deaths,

ongoing factors that continue to pose risks of suicide attempts, and the

adequacy of measures taken to mitigate those risks. The Commission’s key

concerns are as follows:

  • It appears that there were deficiencies in the response to the first death

    at Villawood IDC, which occurred in September 2010. In particular, there was a

    delay in providing adequate counselling and psychological support to people in

    detention at Villawood in the aftermath. The Commission has been informed that

    since that time steps have been taken to improve responsiveness, and that such

    delays did not occur after the subsequent deaths at Villawood IDC.

  • The Commission holds grave concerns about the ongoing risk of suicide and

    self-harm at Villawood IDC. During the Commission’s visit, the view of the

    consultant psychiatrist on the Commission’s team was that the conditions

    for suicidality in Fowler compound were very high. There appeared to be very

    high levels of distress and frustration, feelings of powerlessness and a

    pervasive sense of helplessness among people in that compound. In Blaxland and

    Hughes compounds, there appeared to be intense levels of frustration and anger,

    conditions which carried an associated risk of impulsive suicide attempts.

  • The Commission is also concerned about the risk of further suicides in other

    detention facilities. There have been two apparent suicides and a number of

    reported suicide attempts since the deaths at Villawood IDC. The Commission has

    urged DIAC to consult with organisations that specialise in suicide prevention,

    as well as with mental health professionals including members of the Detention

    Health Advisory Group, about measures that should be taken to mitigate the risk

    of further suicides across the detention network.

  • As discussed in section 11.2(b) above, the Commission is concerned about the

    failure of the IHMS contract to provide for active outreach in the accommodation

    compounds at Villawood IDC. This means that IHMS staff are unable to gain an

    accurate appreciation of the psychological environment within the centre; may be

    unable to identify individuals at risk of psychiatric disorder and/or self-harm

    at an early stage; and cannot regularly monitor the mental state nor promote

    adherence to treatment of individuals who are under their care. This issue

    should be addressed in a consistent way across the detention network.

  • Given that two of the three deaths at Villawood IDC appear to have resulted

    from men hanging themselves, the Commission is concerned about the safety of the

    infrastructure at the centre. While the Commission welcomes the conduct of a

    safety audit of Hughes compound in the week prior to the Commission’s

    visit, it is concerning that this was not done until five months after the first

    death. Furthermore, it is troubling that there has not been a more comprehensive

    approach to safety across the rest of the centre. The Commission was informed

    that IHMS has identified hanging point concerns in Blaxland annexe and the

    Murray Unit that have not been addressed. The Commission acknowledges that it is

    difficult to ‘suicide proof’ an environment. However, DIAC should

    ensure that a safety audit is conducted across Villawood IDC and all other

    detention facilities, and that all appropriate measures are taken to improve the

    physical environment to minimise the risk of suicide and self-harm.

  • The Commission is troubled that, despite the apparent suicides of three men

    at Villawood IDC over recent months, there is no formal plan or policy in place

    to respond to threats of self-harm or suicide at nearby Sydney IRH. The

    Commission was advised by DIAC that such an incident at the IRH would be

    responded to on a case-by-case basis. In the Commission’s view this is not

    adequate. There should be a clear written policy in place at each detention

    facility, including Sydney IRH, setting out procedures for responding to threats

    of self-harm or suicide. All relevant staff should be provided with training on

    the policy and procedures.

  • The Commission is concerned that there does not appear to be a nationally

    consistent written policy or procedure for conducting a critical incident review

    after an event such as a death or near miss attempt in detention. The Commission

    urges DIAC to formalise, in conjunction with Serco, a critical incident review

    policy and procedure to apply across the detention network.

12 Children in detention

We want our kids to be happy. We want them to have a peaceful

life.”

(Man in detention at Sydney IRH with his wife and

children)

This has scarred her.”

(Woman in

detention at Sydney IRH, speaking about the impacts on her daughter of being

held in immigration detention for more than a year)

No parent

would want their children to have that environment.”

(Woman in detention at Sydney IRH, speaking about the impacts on her

children of living in a detention environment)

As of 11 March 2011,

there were 1030 children in immigration detention in

Australia.[92]

The Commission has repeatedly raised concerns about the mandatory detention

of children, the high number of children in immigration detention facilities,

and the long periods of time many children are spending in

detention.[93] These concerns were

reinforced by the Commission’s visit to Sydney IRH.

At the time of the Commission’s visit, there were 27 people detained at

Sydney IRH including eight children – three girls and five boys. The

children ranged in age from four months to 16 years, and included an

unaccompanied teenage boy and a baby born in Australia while his parents were

immigration detainees.[94]

During its visit the Commission had particular concerns about the following

issues relating to the detention of children:

  • Child asylum seekers continue to be subjected to mandatory 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.[95] It is also inconsistent

    with section 4AA of the Migration Act, under which a minor should only be

    detained as a measure of last

    resort.[96]

  • While children are not held in Australia’s high-security IDCs, many

    children are held in other immigration detention facilities, including Sydney

    IRH.[97] As discussed in section

    10.2 above, the physical environment at Sydney IRH is highly preferable to

    Villawood IDC. However, the IRH is still a closed detention facility 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 take part in

    supervised excursions, but during the remainder of their time they are

    restricted to the detention facility. In line with its obligations to only

    detain children as a last resort, the Australian Government should consider less

    restrictive alternatives before deciding to detain a child in an immigration

    detention facility, including Sydney IRH. The detention of children in such

    facilities should only take place in exceptional

    cases.[98]

  • Many children are spending long periods of time in immigration detention

    facilities. At the time of the Commission’s visit to Sydney IRH, all of

    the eight children there had been in detention for longer than three months.

    Seven had been in detention for longer than six months, and three had been in

    detention for more than a year.[99] The Commission has for many years raised serious concerns about the impacts of

    prolonged detention on children. In the report of its National Inquiry into

    Children in Immigration Detention, the Commission found that children in

    detention for long periods were at high risk of serious mental

    harm.[100]

  • The immigration detention of children is still not subject to judicial

    oversight, despite Australia being obliged under the CRC to provide for child

    detainees to challenge their detention before a court or another independent

    authority.[101] The Commission has

    raised concerns about this for many years, and continues to recommend

    legislative changes to ensure that if a child is detained, it is for the

    shortest appropriate period of time and subject to independent and judicial

    review mechanisms.[102]

  • As discussed in section 8.4 above, the Commission is concerned about the

    indefinite detention of people who have received adverse security assessments

    from ASIO. At the time of the Commission’s visit there were six people in

    immigration detention at Villawood in this situation, including a man who had

    been separated from his wife and child and a couple with three young children.

    The Commission has urged the Australian Government to ensure that durable

    solutions are provided for such individuals, and for them to be removed from

    immigration detention facilities as soon as possible.

  • There continues to be an inherent conflict of interest in having the

    Minister or his DIAC delegate act as legal guardian of unaccompanied minors in

    immigration detention. The Commission has repeatedly recommended that an

    independent guardian should be appointed for all unaccompanied minors in

    immigration detention.[103] DIAC

    has acknowledged the ‘perceived conflict of interest’, and has

    informed the Commission that policy work is being progressed to improve the

    guardianship regime.[104]

  • In the absence of an independent guardian, there is no localised written

    policy at Sydney IRH setting out who the delegated legal guardian is for

    unaccompanied minors detained there, and when that guardian should be consulted.

    This concern has also arisen during other detention visits. The Commission urges

    DIAC to address this issue in a consistent way across the detention network.

    DIAC officers and staff members of detention service providers in each detention

    location should be provided with a clear written policy setting out which DIAC

    officer has been delegated the Minister’s powers of legal guardianship of

    unaccompanied minors in that location, and how and when that guardian should be

    consulted.

  • There is no written policy regarding the care and supervision of

    unaccompanied minors detained at Sydney IRH. There appears to be an ad hoc

    approach in terms of who will be responsible for their supervision – in

    some cases a Life Without Barriers carer is apparently provided, but in others a

    Serco officer monitors them. At the time of the Commission’s visit, there

    was one unaccompanied minor detained at the IRH. He was required to be under

    constant line of sight monitoring by a Serco officer. It was not clear where

    this requirement stemmed from, and it seemed to be an intrusive approach. In the

    Commission’s view, it would be highly preferable to engage qualified

    carers to supervise and provide basic care and assistance to unaccompanied

    minors.

  • There were no independent observers to attend interviews involving

    unaccompanied minors detained at Sydney IRH, and staff appeared to be unaware

    that this is a requirement in other detention locations. This is concerning

    given that, in the absence of having an independent legal guardian, independent

    observers are tasked with monitoring the welfare of unaccompanied minors during

    interviews. DIAC should ensure that the policy of requiring an independent

    observer to be present in interviews involving unaccompanied minors is complied

    with in all locations where unaccompanied minors are held in immigration

    detention.

  • There is no Memorandum of Understanding between DIAC and the NSW Department

    of Community Services regarding the welfare and protection of children in

    immigration detention at Sydney IRH or elsewhere in NSW. DIAC should pursue the

    adoption of an MOU in order to ensure that clear guidelines are in place

    regarding responsibilities and procedures.

  • At the time of the Commission’s visit, staff working at Sydney IRH had

    not been provided with a localised written policy setting out the procedure to

    follow in the case of concerns arising about the welfare or protection of a

    child detained in the IRH. All relevant DIAC officers and staff members of

    detention service providers should be provided with a localised policy setting

    out the requirements, procedures and contact details for making child welfare

    and protection notifications. This concern has been raised by the Commission in

    connection with a number of other detention

    visits.[105] DIAC should address

    this matter across the detention network as a matter of priority.

  • The Commission welcomes the fact that school aged children detained at

    Sydney IRH are permitted to attend external schools. However, the Commission

    encourages DIAC to explore opportunities for children who are not yet old enough

    to attend school to be able to attend a playgroup, crèche or kindergarten

    external to the detention environment. The Commission has been advised that such

    arrangements can be made for four year old children. Appropriate opportunities

    should be extended to younger children wherever possible, as their opportunities

    for creative play and learning inside the IRH are limited.

The

Commission is concerned that families with children and unaccompanied minors are

detained at Sydney IRH rather than being placed in community-based alternatives.

As discussed in section 7 above, at the time of its visit to Villawood, the

Commission was seriously concerned about the limited use of Community Detention

as an alternative to detaining people in the facilities there.

The Commission has welcomed the commitment by the Minister for Immigration to

move a significant number of vulnerable families and unaccompanied minors into

Community Detention. The Commission fully supports the use of community-based

alternatives to holding people in detention facilities for prolonged and

indefinite periods – particularly in the case of families with children,

unaccompanied minors and other vulnerable individuals.

This process of moving vulnerable families and unaccompanied minors into

Community Detention commenced in October 2010, and as of 27 April 2011, the

Minister had approved 721 people (including 368 children) for Community

Detention.[106] The Commission

continues to urge the Minister and DIAC to expand these efforts and to implement

them as quickly as possible.

While this initiative will see a significant number of children moved into

Community Detention, some children will remain in immigration detention

facilities. The Commission therefore continues to recommend legislative changes

to ensure that children will only be detained in the first place if it truly is

a measure of last resort, and that if they are detained, it is for the shortest

appropriate period of time and subject to independent and judicial review

mechanisms.

13 External

excursions

We are going crazy without excursions.”

(Man in

detention in Fowler compound, Villawood IDC)

If you let us go

out once a week we will be very relaxed.”

(Man in detention in Hughes compound, Villawood IDC)

 

At the time of its visit, the Commission had serious concerns about the lack

of opportunities for people in immigration detention at Villawood IDC to leave

the detention environment on external excursions. There were no recreational

excursions being conducted for any of the people detained at Villawood IDC,

which had been the case for around a year.

The Commission has long expressed the view that people in immigration

detention should be provided with regular opportunities to leave the detention

environment through participation in external excursions. This can be vital in

assisting them to cope with the deprivation of their liberty, particularly when

they are detained for long and indefinite periods of time, and is likely to

attenuate the development of self-harming and suicidal behaviours.

During its visit to Villawood IDC, the Commission heard from many people in

detention that access to excursions would be beneficial to their mental health

and wellbeing. Some people were able to access excursions at their previous

place of immigration detention, and have felt the stark contrast after being

transferred to Villawood IDC.

During its visit, the Commission was informed that DIAC and Serco intend to

start offering some recreational excursions for some people detained at

Villawood IDC. The Commission welcomes this, but is concerned about the proposed

guidelines, which restrict eligibility to people who have been in detention for

six months or more. While there may be a need to prioritise people who have been

in detention for longer periods of time, in the Commission’s view this

requirement is too restrictive. Adequate resources should be dedicated to allow

participation in external excursions by all people in detention.

The Commission is also concerned that the current contractual arrangements

for service provision at IDCs including Villawood set up a system that provides

no financial incentives for Serco to conduct external excursions, while

providing financial disincentives by applying penalties if individuals escape.

In the Commission’s view, there should be consistent standards for access

to external excursions across the detention network. Standards for the conduct

of a minimum number of external excursions should be specified in the Serco

contracts applicable to all detention facilities, and financial penalties should

be applied if those standards are not met.

The Commission has been informed that DIAC is undertaking a review of

programs and activities for people in immigration detention across all sites,

and that this review will include consideration of external

excursions.[107] The Commission

urges DIAC to consider the above issues as part of that review.

In contrast to Villawood IDC, the Commission welcomes the conduct of regular

external excursions from Sydney IRH. Most people detained at the IRH are able to

take part in three supervised external excursions per week, to places such as

the library, shopping centres, and sporting and recreational facilities.

14 Use

of force and restraints

The Commission is aware that allegations were made by a number of people

formerly detained at Villawood about use of force and restraints during the

process of transferring them back to Christmas Island after they attended

funerals in Sydney in February. The Commission is troubled by these allegations,

which include that people were threatened with a ‘cattle prod-like

baton’, that some people were handcuffed and that one man was carried out

by guards. During its visit, the Commission was advised by Serco that restraints

were not used on any individuals at Villawood during this incident, and that

Serco officers do not have ‘cattle prod-like batons’. The Commission

is aware that the Commonwealth Ombudsman has viewed some video footage of the

incident and has indicated that that footage did not show evidence of the use of

any type of weapon.[108] However,

the Commission is also aware that the Ombudsman’s enquiries are ongoing,

and that there have since been claims that the entire incident was not captured

on video.

During its visit to Villawood IDC, the Commission heard some complaints about

the use of restraints during external escorts. For example, one man spoke of

being distressed about being handcuffed on the way to a medical appointment in

the community. Another man claimed he had missed an appearance at a tribunal

because he chose not to attend when told he would have to be handcuffed.

While the Commission acknowledges that there may be situations when it is

necessary to use restraints, this should be a limited practice used in

exceptional cases only. Planned use of restraints should only occur after a

thorough risk assessment has been conducted for the individual in question and

for the particular escort in question. If it is deemed necessary to use

restraints, they should be used for no longer than is necessary and only to the

extent reasonably necessary for the purpose, they should be covered while the

individual is in public view, and they should be removed for appearances in

courts and tribunals.[109]

The Commission is also concerned that the Serco policy on use of force and

restraints fails to specify clear procedures for officers to follow when

restraints need to be removed in time-sensitive situations that may arise

– for example, an emergency health issue or a request to use toilet

facilities.[110] This was a

concern raised by the Commission during its 2008 Villawood inspection, following

a complaint about an incident in which an officer allegedly refused to remove a

person’s restraints when he requested to use the toilet.

The Commission reiterates its past recommendation that policies regarding use

of restraints should include clear procedures for restraints to be removed in

time-sensitive situations, and that officers should be trained on these

procedures.[111] Training for

officers should emphasise the use of techniques which ensure that, when it is

absolutely necessary to restrain a person, that person is restrained in a

dignified way and with minimum use of

force.[112]

15 Other concerns

A number of other concerns arose from the Commission’s visit to the

immigration detention facilities at Villawood. These include the following:

  • Asylum seekers who have arrived by boat are not permitted to have mobile

    phones in detention facilities including at Villawood, despite other people in

    detention being permitted to have mobile phones. This policy can restrict access

    to communication with family members and support networks, limit the extent to

    which asylum seekers can hold private telephone conversations with legal

    representatives or migration agents, and cause tensions between different groups

    in detention. It also unnecessarily adds to the difficulties associated with

    people in the community attempting to contact asylum seekers in detention. In

    the Commission’s view, there has not been a reasonable justification

    provided for this policy and it should be reconsidered.

  • The Commission heard complaints about inadequate access to internet

    facilities and landline telephones at Villawood IDC. For example, at the time

    there were only nine phones and eight internet terminals to be shared by 161

    people in Fowler compound; and six phones and ten internet terminals to be

    shared by 154 people in Hughes compound. Again, this is concerning because it

    limits people’s ability to maintain contact with family members, support

    networks, legal representatives and migration agents. Since the

    Commission’s visit, access to internet facilities and landline telephones

    has significantly decreased in both Fowler and Hughes compounds, as these

    facilities were damaged during riots that occurred in late April. The Commission

    urges DIAC to ensure that adequate access to communication facilities for all

    people detained at Villawood IDC is provided as quickly as possible.

  • The Commission was concerned to hear that Serco was previously not meeting

    its contractual requirements in relation to the provision of recreational and

    educational activities at Villawood IDC. The Commission has been assured that

    Serco is now complying with its contract in this area. While acknowledging

    efforts by Serco staff to provide a schedule of activities at Villawood IDC, the

    Commission heard a number of complaints about the limited availability of

    activities and the inadequacy of what is provided in terms of meeting the needs

    of the number of people in detention. Other people who had been detained for

    long periods spoke of feeling too depressed or distracted to take part in

    activities. In the words of one man: “How can we participate when we

    are psychologically

    tired?[113]

  • People detained at

    Villawood IDC are not provided with any opportunities to attend religious

    services in the community. This is in sharp contrast to Sydney IRH, where most

    people are able to take part in supervised excursions to attend religious

    services in the community should they wish to do so. DIAC should ensure that

    similar opportunities are provided for people detained at Villawood IDC.

PART

C: Recommendations

Recommendation 1: The Australian Government should end the current

system of mandatory and indefinite immigration detention.

The Australian Government should implement reforms it announced in 2008

under which immigration detention is to be used as a last resort and for the

shortest practicable period, people are to be detained in the least restrictive

environment appropriate to their individual circumstances, and there is a

presumption that people will be permitted to reside in the community unless they

pose an unacceptable risk.

The need to detain should be assessed on a case-by-case basis taking into

consideration individual circumstances. A person should only be held in an

immigration detention facility if they are individually assessed as posing an

unacceptable risk to the Australian community and that risk cannot be met in a

less restrictive way. Otherwise, they should be permitted to reside in

community-based alternatives while their immigration status is resolved.

Recommendation 2: The Australian Government should comply with its

international human rights obligations by providing for a decision to detain a

person, or a decision to continue a person’s detention, to be 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.

Recommendation 3: DIAC and the Minister for Immigration should make

greater use of community-based alternatives to holding people in immigration

detention facilities for prolonged and indefinite periods. This should include

alternatives to detention such as bridging visas, and alternative forms of

detention such as Community Detention.

DIAC and the Minister for Immigration should make full use of Community

Detention, particularly for people who meet the priority criteria under the

Residence Determination Guidelines. This includes children and accompanying

family members, people who may have experienced torture or trauma, people with

significant physical or mental health concerns and people whose cases will take

a considerable period to substantively resolve.

Recommendation 4: Until recommendations 1 and 2 are implemented, the

Australian Government should avoid the prolonged detention of asylum seekers by

complying with its New Directions in Detention policy under which

detention of asylum seekers is for the purpose of conducting health, identity

and security checks. The security check should not be interpreted as requiring a

full ASIO security assessment for each individual before they are released from

an immigration detention facility. Rather, the security check should consist of

a summary assessment of whether an individual would pose an unacceptable risk to

the Australian community. That assessment should be made when the individual is

taken into immigration detention, or as soon as possible thereafter.

Recommendation 5: The Australian Government should ensure

that durable solutions are provided for individuals who have received adverse

security assessments from ASIO, and that they are removed from immigration

detention facilities as soon as possible.

Recommendation 6: People whose visas have been cancelled under

section 501 of the Migration Act should not automatically be categorised as

posing an unacceptable risk to the Australian community. They should only be

held in an immigration detention facility if they have been individually

assessed as posing an unacceptable risk and that risk cannot be met in a less

restrictive way. Consideration of appropriate alternatives should begin as soon

as DIAC becomes aware that an individual is likely to have their visa cancelled

and be taken into immigration detention.

Recommendation 7: The redevelopment of Villawood IDC should be

undertaken as soon as possible. It should include the demolition of Blaxland

compound, ensure that people are detained in the least restrictive form of

detention possible, and address the infrastructure concerns raised by the

Commission in its 2008 Immigration detention report.

Recommendation 8: DIAC should develop a written policy setting out

the decision-making process, criteria and rationale for placing a person in the

annexe in Blaxland compound at Villawood IDC. The policy should include

requirements for each person’s placement to be reviewed on a regular basis

and for information to be provided to the person about the outcome of that

review and the reasons for the decision. The policy should mandate an individual

management plan that specifies the purpose of the placement and the strategies

staff will use to contain the risk. The annexe should not be used for managing

people who have been involved in violent or aggressive behaviour at the same

time as it is being used to monitor people who have been placed on observation

because they are at risk of suicide or self-harm.

Recommendation 9: An independent body should be charged with

monitoring the provision of physical and mental health services in immigration

detention, and adequate resources should be allocated to that body to fulfil

this function.

Recommendation 10: In relation to the provision of physical and

mental health services, DIAC should:

  • Consider increasing the staffing level of the IHMS physical health service

    and the IHMS mental health service at Villawood IDC.

  • Require at least a minimal IHMS presence at Villawood IDC twenty four hours

    per day, seven days per week.

  • Overhaul the clinical governance framework for the delivery of mental health

    services to detainees within Villawood IDC and across the detention network.

    This would involve a consultant psychiatrist overseeing mental health service

    delivery, providing clinical supervision of staff and accepting clinical

    responsibility for the provision of clinical care.

  • Amend the IHMS contract to incorporate active outreach work in the

    accommodation compounds at Villawood IDC, and address this issue in a consistent

    way across the detention network.

  • Require that IHMS provide at least a minimal onsite presence at Sydney

    IRH.

Recommendation 11: In relation to self-harm and

suicide, DIAC should:

  • Consult with organisations that specialise in suicide prevention, as well as

    mental health professionals including members of the Detention Health Advisory

    Group, for advice about measures that should be taken to mitigate the risk of

    further suicides across the detention network.

  • Ensure that a safety audit is conducted across Villawood IDC and all other

    detention facilities, and that all appropriate measures are taken to minimise

    the risk of suicide and self-harm.

  • Ensure that there is a clear written policy in place at each detention

    facility, including Sydney IRH, setting out procedures for responding to threats

    of self-harm or suicide, and ensure that all relevant staff are provided with

    training on the policy and procedures.

Recommendation 12:

The Australian Government should implement the outstanding recommendations of

the report of the National Inquiry into Children in Immigration Detention, A

last resort?. 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 13: The Australian

Government should, as a matter of priority, implement the recommendations made

by the Commission in A last resort? that:

  • Australia’s laws should be amended so that the Minister for

    Immigration is no longer the legal guardian of unaccompanied minors in

    immigration detention.

  • An independent guardian should be appointed for unaccompanied minors in

    immigration detention.

Recommendation 14: In the absence of

an independent guardian, DIAC officers and staff members of detention

service providers in each immigration detention location should be provided with

a clear written policy setting out which DIAC officer has been delegated the

Minister’s powers of legal guardianship of unaccompanied minors in that

location, and how and when that guardian should be consulted.

Recommendation 15: DIAC should pursue the adoption of a Memorandum

of Understanding with the NSW Department of Community Services in order to

ensure clear guidelines are in place regarding responsibilities and procedures

relating to the welfare and protection of children in immigration detention at

Sydney IRH or other locations in NSW.

Recommendation 16: DIAC should ensure that all relevant DIAC

officers and staff members of detention service providers are provided with a

localised policy setting out the requirements, procedures and contact details

for making child welfare and protection notifications in relation to concerns

that arise in respect of children in immigration detention in the location in

which they work.

Recommendation 17: DIAC should ensure that all

people in immigration detention at Villawood have access to:

  • adequate outdoor recreation spaces including grassy and shaded areas
  • adequate indoor areas for educational and recreational activities
  • a range of recreational and educational activities conducted on a regular

    and frequent basis

  • a freely accessible library area stocked with reading materials in languages

    spoken by people in detention

  • adequate access to communication facilities including internet facilities

    and telephones

  • opportunities to attend religious services in the community, should they

    wish to do so.

Recommendation 18: DIAC should ensure that

people in immigration detention at Villawood IDC are provided with regular

opportunities to leave the detention environment on external excursions.

DIAC should implement consistent standards for external excursions across

the detention network. Standards for the conduct of a minimum number of external

excursions should be specified in the Serco contracts applicable to all

detention facilities, and financial penalties should be applied if those

standards are not met.

^Top


[1] See http://humanrights.gov.au/human_rights/immigration/idc2011_villawood_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 14 April 2011).
[3] 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.
[4] See http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3.
[5] DIAC, Immigration Detention

Statistics Summary (11 March 2011). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 26 April 2011).
[6] See,

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

note 2; Australian Human Rights Commission, 2008 Immigration detention

report: Summary of observations following visits to Australia’s

immigration detention facilities (2008 Immigration detention report), at http://www.hreoc.gov.au/human_rights/immigration/idc2008.html (viewed 16 April 2011); Australian Human Rights Commission, 2009 Immigration

detention and offshore processing on Christmas Island (2009) (2009 Christmas

Island report), at http://www.hreoc.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 16 April 2011); Australian Human Rights Commission, 2010 Immigration

detention on Christmas Island (2010) (2010 Christmas Island report), at http://humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 16 April 2011); Australian Human Rights Commission, 2010 Immigration

detention in Darwin (2010) (2010 Darwin report), at http://www.hreoc.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 16 April 2011); Australian Human Rights Commission, 2011 Immigration

detention in Leonora (2011) (2011 Leonora report), at http://www.hreoc.gov.au/human_rights/immigration/idc2011_leonora.html (viewed 16 April 2011).
[7] 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), at http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 15 April 2011).
[8] Figures

provided by DIAC, current as of 23 February

2011.
[9] See, for example, Human

Rights and Equal Opportunity Commission, Immigration Detention: Human Rights

Commissioner’s 1998-99 Review (1999), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_review.pdf (viewed 16 April 2011); Those who’ve come across the seas, note 2; Human

Rights and Equal Opportunity Commission, Summary of observations following

the inspection of mainland immigration detention facilities 2006 (2007), at http://www.humanrights.gov.au/pdf/human_rights/HREOC_IDC_20070119.pdf (viewed 16 April 2011); Human Rights and Equal Opportunity Commission, Summary of observations following the inspection of mainland immigration

detention facilities 2007 (2007), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/summary_idc_report07.pdf (viewed 16 April 2011).
[10] Australian Human Rights Commission, 2008 Immigration detention report:

Summary of observations following visits to Australia’s immigration

detention facilities (2009), sections 3, 10, 11.1, 12.1, 14.3, at http://www.hreoc.gov.au/human_rights/immigration/idc2008.html (viewed 16 April 2011).
[11] On

18 March 2011, Minister for Immigration and Citizenship, Chris Bowen MP

announced an independent review would be conducted by Ms Helen Williams AO and

Dr Allan Hawke AO into incidents including riots that occurred at the Christmas

Island Immigration Detention Centre in March 2011. On 21 April 2011, the

Minister announced that the terms of reference of that review would be expanded

to include the protests that took place at Villawood IDC on 20-21 April

2011.
[12] See http://humanrights.gov.au/human_rights/immigration/idc2011_villawood_photos.html.
[13] According to DIAC, as of 8 March 2011, the operational capacity of Villawood IDC

was 451 people – 60 people in Blaxland compound, 196 people in Hughes

compound, 24 people in Banksia compound and 171 people in Fowler

compound.
[14] Figures provided

by DIAC, current as of 23 February

2011.
[15] For details regarding

people’s length of detention at Villawood, see section 6 of this

report.
[16] DIAC provided the

Commission with figures current as of 23 February 2011 which list the arrival

type (or reason for immigration detention) of the 386 people in immigration

detention at Villawood IDC as follows: 139 visa overstayers, 48 visa

cancellations,164 irregular maritime arrivals and 35 unauthorised air

arrivals.
[17] DIAC provided the

Commission with figures current as of 23 February 2011, listing the citizenship

of the 386 people in immigration detention at Villawood IDC. The largest groups

were 98 people with citizenship from the People’s Republic of China, 50

from Sri Lanka, 32 from Iraq, 28 from Afghanistan, 24 from Iran, 13 from Fiji

and 11 from Vietnam. In addition, there were smaller numbers of people with

citizenship listed as India, New Zealand, Malaysia, Pakistan, the Philippines,

Bangladesh, Nigeria, Indonesia, Ireland, Republic of (South) Korea, Egypt,

Israel, Tonga, Algeria, Armenia, Burma, Brazil, Cambodia, Cameroon, Eritrea,

France, Ghana, Greece, North Korea, Laos, Mongolia, Nepal, the Netherlands,

Norway, Papua New Guinea, Samoa, Senegal, Thailand, United Kingdom, United

States of America and Fed Republic of

Yugoslavia.
[18] Figures provided

by DIAC, current as of 23 February

2011.
[19] See http://humanrights.gov.au/human_rights/immigration/idc2011_villawood_photos.html.
[20] Information provided by DIAC, current as of 8 March

2011.
[21] Figures provided by

DIAC, current as of 23 February

2011.
[22] DIAC provided the

Commission with figures current as of 23 February 2011, listing the citizenship

of the 27 people in immigration detention at Sydney IRH as follows: 13 from Sri

Lanka, 5 from Iraq, 2 from Iran, 2 from Afghanistan, 3 from Vietnam, 1 from

Pakistan and 1 from Somalia.
[23] DIAC provided the Commission with figures current as of 23 February 2011,

listing the arrival type (or reason for immigration detention) of the 27 people

in immigration detention at Sydney IRH as follows: 18 irregular maritime

arrivals, 4 unauthorised air arrivals, 4 visa overstayers and 1 other (baby born

to mother while she was an immigration

detainee).
[24] See http://humanrights.gov.au/human_rights/immigration/idc2011_villawood_photos.html.
[25] See International Covenant on Civil and Political Rights (1966) (ICCPR),

art 9(1), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 17 April 2011); Convention on the Rights of the Child (1989)

(CRC), art 37(b), at http://www2.ohchr.org/english/law/crc.htm (viewed 17 April 2011).
[26] See

New Directions, note 7.
[27] DIAC, Immigration Detention Statistics Summary (11 March 2011), at http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 26 April 2011).
[28] DIAC

provided the Commission with figures current as of 23 February 2011, listing the

length of immigration detention for the 386 people in detention at Villawood

IDC. These figures show that, of those 386 people, 127 had been in detention for

0-3 months, 28 had been in detention for 3-6 months, 16 had been in detention

for 6-9 months, 39 had been in detention for 9-12 months, 127 had been in

detention for 12-18 months, 23 had been in detention for 18-24 months, and 26

had been in detention for more than 24 months. Of the 26 people in immigration

detention for more than 24 months, 16 had been in detention for 2-3 years, 8 had

been in detention for 3-4 years, 1 had been in detention for 4-5 years, and 1

had been in detention for more than 5 years. It should be noted that while some

people would have spent their entire period of immigration detention at

Villawood IDC, many would have spent periods of time in other locations before

being transferred to Villawood IDC.
[29] DIAC provided the

Commission with figures current as of 23 February 2011, listing the length of

immigration detention for the 27 people in detention at Sydney IRH. These

figures show that, of those 27 people, 6 had been in detention for 3-6 months, 5

had been in detention for 6-9 months, 6 had been in detention for 9-12 months, 5

had been in detention for 12-18 months and 5 had been in detention for 18-24

months. It should be noted that while some people may have spent their entire

period of immigration detention at Sydney IRH, many would have spent periods of

time in other locations before being transferred to Sydney

IRH.
[30] See ICCPR, note 25, art

9(4); CRC, note 25, art

37(d).
[31] 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 9.5, at http://www.unhchr.ch/tbs/doc.nsf/0/30c417539ddd944380256713005e80d3?Opendocument (viewed 18 April 2011).
[32] New

Directions, note 7.
[33] See 2009

Christmas Island report, note 6, section

9.2.
[34] See 2010 Christmas

Island report, note 6, section 10; 2010 Darwin report, note 6, section

5.
[35] See for example, Joint

Standing Committee on Migration, First report of the inquiry into immigration

detention: Immigration detention in Australia, A new beginning (2008),

recommendations 10, 11, at http://www.aph.gov.au/house/committee/mig/detention/report.htm (viewed 18 April 2011).
[36] See

New Directions, note 7.
[37] See,

for example 2010 Christmas Island report, note 6, sections 11, 13.2; 2010 Darwin

report, note 6, sections 7,8; 2011 Leonora report, note 6, sections

7,8.
[38] Information provided by

DIAC, 10 March 2011.
[39] Minister for Immigration and Citizenship, Minister’s Residence

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

Guidelines (2009).
[40] DIAC, Preliminary Response to AHRC visit to Villawood IDC (5 May

2011).
[41] Under the Residence

Determination Guidelines, children and their accompanying family members,

persons who may have experienced torture or trauma, persons with significant

physical or mental health concerns, persons whose cases will take a considerable

period to substantively resolve, and other cases with unique or exceptional

characteristics are to be given priority consideration for Community Detention.

See Residence Determination Guidelines, note 39, para

4.1.4.
[42] See New Directions,

note 7.
[43] During its Villawood

visit, the Commission was advised by DIAC that asylum seekers who have arrived

by boat are informed that if they seek judicial review of their negative refugee

status assessment, they will remain in immigration detention for the duration of

that process. This position is also reflected in various DIAC materials. See,

for example DIAC, Questions and Answers - Impact of the High Court of

Australia’s decision on Refugee Status Assessment (RSA) clients (2011), at http://www.immi.gov.au/visas/humanitarian/onshore/protection-obligations-determination.htm (viewed 20 April 2011); DIAC, Changes to refugee status determination -

Questions and answers (2011), at http://www.immi.gov.au/visas/humanitarian/onshore/protection-obligations-determination.htm (viewed 20 April 2011).
[44] Evidence to the Senate Standing Committee on Legal and Constitutional Affairs,

Parliament of Australia, Canberra, 21 February 2011, 92 (Garry

Fleming).
[45] See DIAC, Christmas Island: a notice to immigration detention clients from the

Australian Government (17 March 2011), at http://www.newsroom.immi.gov.au/media_releases/914 (viewed 20 April 2011); DIAC, Mainland detention centres: a notice to

immigration detention clients from the Australian Government (17 March

2011), at http://www.newsroom.immi.gov.au/media_releases/913 (viewed 20 April 2011); DIAC, Alternative places of detention: a notice to

immigration detention clients from the Australian Government (17 March

2011), at http://www.newsroom.immi.gov.au/media_releases/912 (viewed 20 April 2011).
[46] DIAC

provided the Commission with information current as of 10 March 2011 showing

that, at that time, there were 37 people in immigration detention at Villawood

who had been found to meet the definition of a refugee as set out in article 1A

of the Refugee Convention, yet who remained in detention awaiting ASIO security

assessments. Of those 37 people, 36 were asylum seekers who had arrived by boat.

The delay since being recognised as a refugee was as follows: 13 people had been

waiting for 0-3 months; 5 people had been waiting for 4-6 months; 7 people had

been waiting for 7-9 months; and 12 people had been waiting for 10-12

months.
[47] See, for example

2010 Christmas Island report, note 6, section

9.
[48] See further Australian

Human Rights Commission, Submission to the Independent Review of the

Intelligence Community (2011). At http://www.humanrights.gov.au/legal/submissions/2011/20110431_intelligence.html (viewed 10 May 2011).
[49] For

further information about the processing suspension, see 2010 Christmas Island

report, note 6, section 8. A summary of the High Court of Australia decision in M61/2010E and M69 v Commonwealth of Australia is available at http://portsea.austlii.edu.au/au/other/HCASum/2010/40.html (viewed 20 April 2011). Information about the new Protection Obligations

Determination process is available on the DIAC website at http://www.immi.gov.au/visas/humanitarian/onshore/protection-obligations-determination.htm (viewed 20 April 2011).
[50] See

2011 Leonora report, note 6, section 5; 2010 Darwin report, note 6, section

5.
[51] See ICCPR, note 25, art

9(1); CRC, note 25, art

37(b).
[52] See 2010 Christmas

Island report, note 6, section

10.
[53] Under section 36 of the Australian Security Intelligence Organisation Act 1979 (Cth), this

requirement does not apply to a person who is not an Australian citizen or

permanent resident, or who is not the holder of a valid permanent visa or a

special purpose visa.
[54] While

section 54 of the Australian Security Intelligence Organisation Act 1979 (Cth) allows for an application to be made to the AAT, section 36 of the Act

excludes people who are not Australian citizens, or the holders of a valid

permanent visa or a special purpose visa from making such an

application.
[55] See

Inspector-General of Intelligence and Security, Annual Report 2006-2007 (2007), p 12, at http://www.igis.gov.au/annual_report/06-07/index.cfm (viewed 20 April 2011); Inspector-General of Intelligence and Security, Annual Report 1998-1999 (1999), paras 89-91, at http://www.igis.gov.au/annual_report/98-99/asio.cfm (viewed 20 April 2011).
[56]Church of Scientology Inc v Woodward (1982) 154 CLR

25.
[57] See further Australian

Human Rights Commission, Submission to the Independent Review of the

Intelligence Community, note

48.
[58] Figures based on

statistics provided by DIAC, current as of 23 February 2011.
[59] See New Directions, note

7.
[60] See Joint Standing

Committee on Migration, Immigration detention in Australia: A new beginning -

First report of the inquiry into immigration detention in Australia (December 2008), p 53, at http://www.aph.gov.au/house/committee/mig/detention/report/fullreport.pdf (viewed 22 April 2011).
[61] Australian Human Rights Commission, Background paper: Immigration detention

and visa cancellation under section 501 of the Migration Act (updated March

2010), at http://www.hreoc.gov.au/human_rights/immigration/501_migration_2010.html (viewed 22 April 2011).
[62] Ministerial Direction No. 41 (which revised the previous Ministerial Direction

No. 21) was introduced in June 2009. See Direction [no. 41] - Visa refusal

and cancellation under s501, given under section 499 of the Migration Act

1958 (Cth) and signed on 3 June 2009, at http://www.immi.gov.au/media/fact-sheets/79-ministerial-direction-41.pdf (viewed 22 April 2011).
[63] See,

for example, 2008 Immigration detention report, note 6, section

10.13.
[64] See Human Rights and

Equal Opportunity Commission, Immigration Detention Guidelines (2000),

section 1.4(a), at http://www.hreoc.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 22 April 2011).
[65] See Migration Act 1958 (Cth), ss 13, 14,

189.
[66] See Immigration

Detention Guidelines, note 64, section

1.1.
[67] See note 9.
[68] See 2008 Immigration

detention report, note 6, sections 3, 10, 11.1.
[69] See Australian Human Rights

Commission, Submission to the Parliamentary Standing Committee on Public

Works Inquiry into the Proposed Redevelopment of the Villawood Immigration

Detention Facility (2009), at http://www.hreoc.gov.au/legal/submissions/2009/20090918_villawood_immigration.html (viewed 22 April 2011).
[70] See

2008 Immigration detention report, note 6, sections 10.3,

11.1.
[71] See, for example 2008

Immigration detention report, note 6, section

10.3(c).
[72] See DIAC, Response to the Australian Human Rights Commission’s 2008 Immigration

Detention Report (2009), p 12, at http://www.hreoc.gov.au/human_rights/immigration/idc2008_DIAC.html (viewed 22 April 2011).
[73] See

2008 Immigration detention report, note 6, section

12.1.
[74] See note 29.
[75] DIAC, Preliminary

Response to AHRC visit to Villawood IDC (5 May

2011).
[76] See International

Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), art 12, at http://www2.ohchr.org/english/law/cescr.htm (viewed 22 April 2011); CRC, note 25, art

24.
[77] See Immigration

Detention Guidelines, note 64, section

13.
[78] See 2010 Christmas

Island report, note 6, section 19; 2010 Darwin report, note 6, section 8; 2011

Leonora report, note 6, section

8.
[79] See, for example A last

resort, note 2, chapter 9; 2008 Immigration detention report, note 6, sections

8, 10.3; 2009 Christmas Island report, note 6, section 12.5; 2010 Christmas

Island report, note 6, section 19.2; 2010 Darwin report, note 6, section 8; 2011

Leonora report, note 6, section

8.
[80] See Residence

Determination Guidelines, note 39, para

4.1.4.
[81] See note 41 for

Residence Determination criteria.
[82] See DIAC, Psychological

Support Program for the Prevention of Self Harm in Immigration Detention (April 2009).
[83] See 2008

Immigration detention report, note 6, section

12.1.
[84] See DIAC, Response

to the Australian Human Rights Commission’s 2008 Immigration Detention

Report, note 72, p 37.
[85] See, for example 2010 Darwin report, note 6, section 8.2; 2010 Christmas Island

report, note 6, section

19.2.
[86] DIAC provided the

Commission with information about the number of recorded actual and attempted

self-harm incidents at Villawood IDC between 3 October 2010 and 28 March 2011.

This showed 18 recorded incidents, three of which were attempted self-harm and

15 of which were actual

self-harm.
[87] DIAC provided the

Commission with information showing that on 17 November 2010, there was an

attempted hanging in Fowler compound at Villawood IDC. On 16 November 2010, an

Iraqi man detained at Villawood IDC died after apparently committing

suicide.
[88] DIAC, Psychological Support Program for the Prevention of Self Harm in Immigration

Detention (April 2009).
[89] DIAC, Mental Health Screening for People in Immigration Detention (April

2009); DIAC, Identification and Support of People in Immigration Detention

who are Survivors of Torture and Trauma (April

2009).
[90] The three deaths at

Villawood IDC include the death of a 36 year old Fijian man on 20 September

2010, the death of an Iraqi man on 16 November 2010, and the death of a 29 year

old British man on 8 December 2010. The three deaths in other immigration

detention facilities included the death of a 30 year old man who was being

detained at Curtin IDC on 22 August 2010, the death of a 20 year old Afghan man

who was being detained at Scherger IDC on 16 March 2011, and the death of a 20

year old Afghan man who was being detained at Curtin IDC on 28 March

2011.
[91] DIAC provided the

Commission with information showing that on 17 November 2010, there was an

attempted hanging in Fowler compound at Villawood IDC. On 16 November 2010, an

Iraqi man detained at Villawood IDC died after apparently committing

suicide.
[92] DIAC, Immigration Detention Statistics Summary (11 March 2011), at http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 26 April 2011).
[93] See,

for example 2008 Immigration detention report, note 6, section 14; 2009

Christmas Island report, note 6, section 11; 2010 Christmas Island report, note

6, Part C; 2010 Darwin report, note 6, section 7; 2011 Leonora report, note 6,

section 7.
[94] Figures provided

by DIAC, current as of 23 February 2011. Of the eight children detained at

Sydney IRH at that time, two were aged 0-2 years, one was aged 3-5 years, one

was aged 6-10 years, and four were aged 11-16

years.
[95] See CRC, note 25, art

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

2.
[96]Migration Act 1958 (Cth), s 4AA.
[97] 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.
[98] 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 26 April 2011).
[99] See

note 29 for figures on length of detention at Sydney IRH.
[100] See A last resort, note

2, executive summary, major finding

2.
[101] CRC, note 25, art

37(d). See also ICCPR, note 25, art

9(4).
[102] See A last resort,

note 2, chapters 6, 17; 2009 Christmas Island report, note 6, section 11.5; 2010

Christmas Island report, note 6, section

12.
[103] See, for example A

last resort, note 2; 2008 Immigration detention report, note 6; 2009 Christmas

Island report, note 6; 2010 Christmas Island report, note 6; 2010 Darwin report,

note 6.
[104] DIAC, Preliminary Response to AHRC visit to Villawood IDC (5 May 2011). See

also DIAC, Response to the 2010 Australian Human Rights Commission Report on

Immigration Detention in Darwin (2010), p 7, at http://www.hreoc.gov.au/human_rights/immigration/idc2010_darwin_response.html (viewed 26 April 2010).
[105] See, for example 2010 Darwin report, note 6, section 7; 2011 Leonora report,

note 6, section 7.
[106] DIAC, Preliminary Response to AHRC visit to Villawood IDC (5 May

2011).
[107] See DIAC, Response to the Australian Human Rights Commission Statement on Immigration

Detention in Leonora (2011), p 12, at http://www.hreoc.gov.au/human_rights/immigration/idc2011_leonora_response.html (viewed 26 April 2011).
[108] See No weapons evident (Media release issued by the Commonwealth

Ombudsman, 17 March 2011). At http://www.ombudsman.gov.au/media-releases/show/169 (viewed 26 April 2011).
[109] See Immigration Detention Guidelines, note 64, sections 10.1, 18.10.
[110] Serco, Security

Instruction UOF 001, Use of Force – General Policy (October

2010).
[111] See 2008

Immigration detention report, note 6, section

10.7.
[112] See Immigration

Detention Guidelines, note 64, section

18.5.
[113] Interview with man

detained in Fowler compound at Villawood IDC, 22 February 2011.