Access to Asylum: The country’s laws provide for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees.
Unauthorized arrivals seeking asylum are processed at the Christmas Island Detention Center, located off the country’s northwest coast. Following health, identity, and security checks, unauthorized arrivals are to remain in immigration detention while their applications are being processed only if it is determined that they pose a threat to the community. However, the number of asylum seekers arriving by sea has increased dramatically in recent years, putting pressure on the detention center capacity at Christmas Island as well as on processing times. There were 4,940 such arrivals recorded in the 2010-11 fiscal year, compared with 25 in 2007-08. In June the government rejected a UN recommendation to change the mandatory detention framework for asylum seekers. In July the Australian Human Rights Commission (HRC) asserted that this policy breached Australia’s human rights obligations and in practice resulted in indefinite detentions.
The HRC called for an end to the “two-tiered” system for unauthorized arrivals, whereby those who are intercepted on the mainland have more legal rights than those who arrive in a so-called “excised” offshore location (for example, Christmas Island). In November 2010 the High Court ruled, in a case brought by two asylum seekers held offshore, that the two were denied “procedural fairness” in the processing of their applications, and that all refugee-status assessments, regardless of the place or manner of the asylum seekers’ arrival, are subject to the provisions of the Migration Act and the decisions of the country’s courts, in the context of procedural fairness. In November 2011 the government announced that beginning in 2012, unauthorized maritime arrivals would be granted the same access to the Refugee Review Tribunal as other asylum seekers.
DIAC provided immigration advice and assistance to persons making an initial asylum claim or application for lawful residence. There is also a statutory obligation to facilitate access to legal representation for persons in immigration detention.
The Christmas Island Detention Center remained at or near capacity throughout the year; some asylum seekers were transferred to detention centers on the mainland due to the lack of adequate capacity at the Christmas Island center. On June 29, the government reported that 767 children in immigration detention had been moved into community-based accommodation since October 2010.
In March an Afghan asylum seeker committed suicide at the Curtin Detention Center in Western Australia and another Afghan asylum seeker committed suicide at the Scherger Detention Center in Queensland. In May the Australian Medical Association’s Northern Territory president claimed that detainees under 10 years of age had attempted self-harm. In late July the Commonwealth ombudsman launched an inquiry into the rising rate of self-harm by asylum seekers in immigration detention. According to the ombudsman, in the first week of July there were 50 such incidents.
In March, June, and July, there were riots at the Christmas Island Detention Center. In March there was a protest at the Villawood Detention Center in Sydney during which asylum seekers set fires that destroyed or damaged nine buildings. Subsequently, in July Parliament amended the Migration Act so that asylum seekers would fail the character test for receiving a permanent visa if convicted of any offense committed while in immigration detention. In July up to 80 asylum seekers participated in a hunger strike at the Scherger Detention Center.
An HRC investigation into the Villawood center, released in May, found its design “places considerable strain on detainees, staff and managers.” In response DIAC stated that the company managing the center had already prepared a proposal to upgrade facilities prior to the fires. During the year the Department of Finance and Deregulation and DIAC jointly oversaw an A$186.7 million ($190.43 million) government-funded project to upgrade the facilities, and restoration work began in preparation for the redevelopment.
On July 25, the government signed an agreement with Malaysia involving transfer to Malaysia of up to 800 maritime asylum seekers in return for Australia accepting 1,000 confirmed refugees each year for the next four years. Transferees would be provided exemptions under Malaysian immigration law and have access to work, education, and health care. The HRC was concerned, however, because Malaysia was not a signatory to the UN Refugee Convention; it urged the government not to send unaccompanied minors, families with children, and torture and trauma survivors to Malaysia. On August 31, Australia’s High Court declared the agreement illegal, finding that “Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration.” This decision also called into question the legality of the off-shore processing of asylum seekers generally. In the wake of the High Court decision, in November the government announced a change in its immigration detention policy and released 27 detainees on temporary “bridging” visas that allowed them to live with friends or relatives in the country and to work, pending decisions on their asylum claims. The government stated the intention to release additional detainees under bridging visas over the next few months. It noted that decisions on which detainees to release would take into account time spent in detention and suitability for community placement based on an assessment process including identity, security, and behavior checks.
Delays in processing asylum applications continued to be a problem during the year, especially among a small number of asylum seekers who remained in long-term detention despite having exhausted the appeal process. They could not be returned to their home country because they lacked travel documents or could not obtain necessary transit visas. The Commonwealth ombudsman reviews all cases of persons in detention for two years or more. As of June 14, there were seven persons in immigration detention longer than two years.
Detention facilities were monitored by Parliament, the ombudsman, the UNHCR, and an advisory group composed of experts in immigration and humanitarian issues.
Nonrefoulement: In law and practice the government provided protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. In November the Federal Magistrate’s Court issued a temporary injunction against the deportation to Afghanistan of an unsuccessful Afghan Hazara asylum seeker, pending a further hearing on the case.
Durable Solutions: The government accepted refugees for resettlement from third countries and funded refugee resettlement services, such as language and employment programs.