Australia’s Indefinite Immigration Detention Challenge
By Frankie Salamida
As of January 27, 2022, there were almost 1,500 people in Australian immigration detention facilities.[1] The Migration Act was originally introduced in Parliament in 1958 and was envisioned as a temporary and “exceptional” measure to deal with a particular grouping of people.[2] These designated persons were Indochinese unauthorized boat arrivals.[3] In 1992, the Migration Reform Act was introduced and extended mandatory detention to all “unlawful” non-citizens.[4] Most “unlawful” non-citizens are usually granted temporary legal status.[5] If an “unlawful” non-citizen is considered to be a flight or security risk, or refuses to leave the country voluntarily, they may be refused a bridging visa and detained to prepare for their removal.[6] A bridging visa allows a non-citizen to stay in Australia after a current substantive visa ceases and while the new substantive visa application is processed.[7] As of September 2021, the average time period for a person held in Australian detention was almost 700 days.[8]
The main focus of Australia’s mandatory detention policy is to ensure that people who arrive without lawful authority do not enter the Australian community until they have satisfactorily completed certain screenings: Health, character, and security checks, and if they have been granted a visa. Those who do not have the authority to be in the country are subject to removal from the country.[9] The detention policy requires the detention of all unlawful non-citizens who are in Australia without a valid visa.[10] Immigration officials have no choice but to detain persons who arrive without a visa, also called unauthorized arrivals.[11] Officials also must detain persons who arrive with a visa but then subsequently become unlawful due to their visa expiring or being canceled.[12] These persons are called authorized arrivals.[13] Additionally, the migration act makes no distinction between the detention of adults and children, which has raised many concerns.[14]
Outside of an Australian detention facility. Courtesy Refugee Council of Australia.
The Ending Indefinite and Arbitrary Immigration Detention Bill (“Bill”) was first introduced in 2021 and a second reading commenced in August of 2022.[15] This Bill established a legal framework governing immigration detention in Australia, provides alternatives to immigration detention, and prioritizes non-citizens' immediate needs with refugee and international human rights law.[16] The Bill focuses on seven main issues: (1) ending offshore detention, (2) adding time limits for children and adults in immigration detention; (3)providing detainees with their legal rights; (4) independent monitoring of detention facilities; (6) ending mandatory immigration detention; (6) adding alternatives to detention; and (7) providing access to services.[17]
Community based alternatives to detention have proven to be successful in some European countries including Bulgaria, Cyprus, and Poland.[18] These alternatives focus on providing refugees and non-citizens immediate needs and ensure access to assistance, including housing and financial support.[19] Additionally, the Bill provides access to health services, free legal services, and education.[20]
In addition to the Bill, the case of Tony Sami may help end Australia’s indefinite detention policy.[21] In 2004, Australia’s highest court held that the Migration Act authorized indefinite detentions in the case of Al-Kateb v. Godwin.[22] The high court determined that a court was “only required in the instance of detaining a person if that detention was punitive.[23] A person could be sent to ‘administrative detention,’ such as that required to process and carry out a deportation, by the executive, and for as long as was required to resolve it.”[24] The Tony Sami case prepares ground for a high court appeal to challenge Al-Kateb.[25] Tony Sami was indefinitely detained after his visa was canceled.[26] In 2000, Sami arrived in Australia as a tourist and later obtained a partner visa after his 2003 marriage.[27] This visa was canceled in 2012 after Sami was convicted for several offenses involving fraud or dishonesty.[28] Sami served his prison sentence and immediately after was sent straight into immigration detention pending his removal from the country.[29] Sami has exhausted all avenues of appeal against his visa cancelation and remains in detention due to issues with his home country of Egypt not issuing a travel document.[30] Without the binding precedent of the Al Kateb, a writ of habeas corpus could have been filed for Sami’s release from the detention proceedings.[31] Sami’s lawyers filed an appeal in December 2022 indicating an intention to ask for Al Kateb to be reconsidered.[32]
Passage of the Bill would ensure detainees are given certain rights and would end individuals’ suffering detained at immigration facilities.[33] Additionally, if the Tony Sami case prevails in challenging the ruling in Al-Kateb, it would be a step in the right direction to ending Australia’s current indefinite immigration detention policies.[34]
[1] Submission by Human Rights Watch on the Inquiry into the Ending Indefinite and Arbitrary Immigration Detention Bill 2021, Hum. Rts. Watch (Jan. 27, 2022), https://www.hrw.org/news/2022/02/15/submission-human-rights-watch-inquiry-ending-indefinite-and-arbitrary-immigration.
[2] Janet Phillips & Harriet Spinks, Immigration Detention in Australia, Parliament of Australia (Mar. 20, 2013), https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/1311498/upload_binary/1311498.pdf;fileType=application%2Fpdf#search=%22Immigration%20Detention%20in%20Australia%20%202010s%22.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Bridging Visa A (BVA), Australia Dep’t of Home Affs. (Aug. 10, 2022), https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-visa-a-010.
[8] Hum. Rts. Watch, supra note 1.
[9] Phillips & Spinks, supra note 2.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Ending Indefinite and Arbitrary Immigration Detention Bill 2022 (Cth).
[16] Id.
[17] Hum. Rts. Watch, supra note 1. Notably, the Bill sets a three month limit for how long a person can be held in detention.
[18] Id.
[19] Id.
[20] Id.
[21] Paul Karp, Legal Challenge to Australia’s Indefinite Immigration Detention Could Determine Freedom of Hundreds, The Guardian (Dec. 29, 2022), https://www.theguardian.com/australia-news/2022/dec/30/legal-challenge-to-australias-indefinite-immigration-detention-could-determine-freedom-of-hundreds.
[22] Helen Davidson, 'You Feel Tortured': Stateless Man Seeks to Challenge Australian Indefinite Detention Ruling, The Guardian (Jan. 17, 2019), https://www.theguardian.com/law/2019/jan/18/you-feel-tortured-stateless-man-seeks-to-challenge-australian-indefinite-detention-ruling.
[23] Id.
[24] Id.
[25] Karp, supra note 21.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Karp, supra note 21.
[31] Id.
[32] Id.
[33] Hum. Rts. Watch, supra note 1.
[34] Karp, supra note 21.