By Anthony Brown
A Brisbane solicitor specialising in immigration law has called on the federal government to replace its policy of detaining undocumented boat arrivals with a supervised release program.
South Brisbane Immigration and Community Legal Service solicitor, Anthony Reilly, says the federal Department of Immigration, Local government and Ethnic Affairs should consider adopting a program similar to one currently operating in the United States.
In May 1990 the US Immigration and Naturalisation Service (INS) introduced a 18-month Pilot Patrol Program where 200 detained asylum
seekers in four cities were released.
The program consisted of interviews of detainees by immigration officers to ascertain each individual's case and to ensure that, if released, they would not abscond or pose a threat to public safety. Once released each asylum seeker had to report to an INS officer on a monthly basis.
An independent study by the US Lawyers Committee for Human Rights found a high rate of compliance by asylum applicants in meeting their monthly reporting requirements, appearing in the immigration courts and accepting deportation orders when their case for refugee status was unsuccessful.
"In 1992, the INS found the program so successful that it decided to extend it to all asylum seekers in detention centres in the US" Anthony Reilly told Green Left. "It is a model the Australian government should consider using."
Since November 1989, 652 asylum seekers, mostly from Cambodia and the People's Republic of China, have arrived in Australia by small boat. Under the Migration Act they were detained on the grounds that they had no valid documentation for entering the country. Since arrival in Australia most have been detained at the Port Hedland Reception and Processing Centre in Western Australia and Villawood Immigration Detention Centre in Sydney. Some have been in detention for more than three years.
Twenty-five children have subsequently been born in detention, making a total of 677 people. Of these, 208 have left Australia either to return home or to travel to other countries, 151 have been approved to remain in Australia and the remaining 318 are detained, either awaiting decisions on their refugee status or challenging decisions in Australian courts.
Anthony Reilly believes there are strong policy arguments for the introduction of a supervised release program. Such a program would, for example, be less costly than the current detention system. In 1992 the department was questioned about detention costs by the Senate Estimates Committee. The total cost of custody and care of detainees in the Port Hedland Detention Centre for the financial year 1991-1992 $27,184 per person. In August 1992 the department announced that an additional $1.578 million was being provided for security-related improvements and additional guarding for Port Hedland and $4 million for refurbishing Villawood.
Reilly says that there are also compelling humanitarian considerations which favour a change to the current detention scheme
"It is really cruel to lock people up who come from situations of persecution", he says. "It effectively punishes them for exercising their right to seek asylum from that persecution."
Under Article 31 of the UN Convention of Refugees, to which Australia is a signatory, asylum seekers are not supposed to be penalised for entering a country without authorisation.
Reilly says the Department of Immigration's reaction to a supervised release program had been hostile, mainly because they believe detention acts as a deterrent to other people coming to Australia without authorisation. The validity of that contention has not been tested. Reilly says that, to his knowledge there has been no research into the grounds upon which asylum seekers choose their country of destination. In his personal experience, as a solicitor representing refugees, most say that the possibility of detention had not prevented them from travelling to Australia.
Two aspects of the US release program, according to Reilly, should be reviewed in any planned Australian program. First, under the US program asylum applicants have to provide definite proof of their identity. The problem with this is that asylum seekers often have no personal identification with them when they arrive.
Second, an applicant for release in the US must satisfy a migration officer that their claim for refugee status is credible. This, once again, is a tall order for a short interview with migration officers who are often not trained in refugee law.
Reilly believes that only a low standard of proof should be required at the initial interview. Once applicants are on the release program then the department could carry out more extensive interviews to determine refugee status.
A Parliamentary Joint Standing Committee on Migration will report to the federal government by December this year on detention practices. The committee is looking at several alternatives to the current practise of detaining unauthorised asylum seekers, one of which is the release program.