Australia
01.02.02
Urgent Interventions
Press Release: Australia - OMCT approaches the UN concerning detained asylum seekers
Geneva, February 1st, 2002
WORLD ORGANISATION AGAINST TORTURE
PRESS RELEASE
In a letter sent yesterday to the UN Working Group on Arbitrary Detention, the World Organisation Against Torture (OMCT), alarmed by the treatment of asylum seekers and migrants in Australia, urges it to consider carrying out a visit to the country in order to investigate their conditions of detention.
OMCT expresses its grave concern about the conditions of detention of asylum seekers, including unaccompanied children and torture victims, in particular, in the controversial Australian detention centres at Port Headland, Curtin and Woomera and considers the consequences of detention to be particularly serious, causing severe emotional and psychological stress which may amount to inhuman and degrading treatment.
Most of the detained persons in question are asylum seekers from Iraq, Iran and Afghanistan who arrived by boat from Indonesia. Australian legislation stipulates that such detention is for administrative purposes while assessing if individuals qualify as refugees under the 1951 Convention relating to the Status of Refugees. Since 16 January 2002, hundreds of asylum seekers in Woomera have initiated hunger strikes and protests against the Australian government's policy of detention and its freeze on asylum applications of Afghans. Other asylum seekers at various detention centres have also begun hunger strikes and protests in support of the legitimate demands of the Woomera detainees.
Australia continues to use detention as a means of discouraging unauthorised migration. Australia is, indeed, the only hosting country, which has a non-revisable, mandatory detention policy for unauthorised arrivals of asylum seekers. In accordance with 1994 legislation, all non-citizens who unlawfully enter Australia, including those seeking asylum, are placed in detention. OMCT notably condemns the lack of time limit on detention provided for in the Australian Migration Act.
In 1997, the United Nations Commission on Human Rights requested the Working Group on Arbitrary Detention to «devote all necessary attention to reports concerning the situation of immigrants and asylum seekers who are allegedly being held in prolonged administrative custody without the possibility of administrative or judicial remedy».
In addition, many United Nations mechanisms, including the UN Committee on the Elimination of Racial Discrimination, in the recent years, expressed their concerned about the situations of asylum seekers in Australia. The UN Human Rights Committee further stated that the mandatory detention under the migration act of “unlawful non-citizens”, including asylum seekers, raises questions of compliance with international human rights standards, which provide that no person shall be subjected to arbitrary detention.
OMCT recalls that, as a matter of priority, detention is never a solution to the movement of refugees and asylum seekers and should be avoided.
In view of the continuing and blatant violation of international refugee law by Australian government, OMCT urges the UN Working Group to urgently examine the arbitrary character of the detention of asylum seekers, and to consider carrying out a visit into the country in order to investigate the conditions of detention of immigrants and asylum seekers who are allegedly being held in prolonged administrative detention without the possibility of administrative or judicial remedy.
Background information
Following the deliberation N°5 of the Working Group on Arbitrary Detention related to the «Situation regarding immigrants and asylum seekers, the experts have already expressed their concerns about the situation of asylum seekers and recommended in particular that an absolute maximum duration for the detention of asylum seekers should be specified in national law. For the time being, there is no time limit on detention provided for in the Australian Migration Act. The Working Group further recommended that a decision to detain should be reviewed as to its necessity and its compliance with international legal standards by means of a prompt, oral hearing by a court or similar competent independent and impartial review, accompanied by the appropriate provision of legal aid. In the event that continued detention is authorized, detainees should be able to initiate further challenges against the reasons for detention.
In addition, the UN Committee on the Elimination of Racial Discrimination expressed its concerns, in March 2000, about the situation of asylum seekers in the country and recommended “that Australia implement faithfully the provisions of the 1951 Convention relating to the Status of Refugees, as well as the 1967 Protocol thereto, with a view to continuing its cooperation with the United Nations High Commissioner for Refugees and in accordance with the guidelines in UNHCR's "Handbook on Refugee Determination Procedures" .
OMCT remains particularly concerned at the detention of unaccompanied children and recalls that unaccompanied children seeking asylum should never be detained. Mandatory immigration detention results in physical, emotional and social neglect and therefore deprives detained children of developmental opportunities. The treatment of children also breaches the Convention of the Rights of the Child, and the Rules of the Protection of Juveniles Deprived of their Liberty. In this respect, OMCT recalls the provisions of article 37 b) of the UNCRC which stipulates that «States Parties shall ensure that… no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time». Children should not be kept in mandatory immigration detention but should be released into the community, together with both parents. Detention further denies children access to social justice policies inherent in the welfare state that are usually available to Australian children. Such discrimination contravenes the principle of non-discrimination enshrined in article 2 of Convention on the Rights of the Child. Non-discrimination means that children in detention should not be treated differently from children anywhere else in Australia.
Although many asylum seekers are in serious need of medical or psychological assistance, this is not taken into account. Asylum seekers who may have undergone traumatic experiences in their country of origin, such as torture or ill treatment in the course of arbitrary detention, present a wide range of health problems and there are additional difficulties of language and reluctance to discuss traumatic episodes. Detention in the country of reception is a particularly disproportionate response to, for example, arrival at a border. The arbitrary detention of asylum seekers is contrary to the 1951 Convention Relating to the Status of Refugees and its 1967 protocol and the conclusions of the Executive Committee of the United Nations High Commissioner for Refugees.
Recently, the UN Human Rights Committee stated that “the mandatory detention under the Migration Act of «unlawful non-citizens», including asylum seekers, raises questions of compliance with article 9, paragraph 1 of the International Covenant on Civil and Political Rights, which provides that no person shall be subjected to arbitrary detention. One of the major concerns regarding detention of asylum seekers in Australia is the States Party’s policy, in the context of mandatory detention, of not informing the detainees of their right to seek advice and of not allowing access by non-governmental human rights organisations to the detainees in order to inform them of this right.
In this context, it is of the utmost importance to urge the Australian government to comply with its obligation under international refugee law, and in particular, with regard to the rights of refugees and asylum seekers to have access to adequate and effective representation and prompt judicial proceedings.
WORLD ORGANISATION AGAINST TORTURE
PRESS RELEASE
In a letter sent yesterday to the UN Working Group on Arbitrary Detention, the World Organisation Against Torture (OMCT), alarmed by the treatment of asylum seekers and migrants in Australia, urges it to consider carrying out a visit to the country in order to investigate their conditions of detention.
OMCT expresses its grave concern about the conditions of detention of asylum seekers, including unaccompanied children and torture victims, in particular, in the controversial Australian detention centres at Port Headland, Curtin and Woomera and considers the consequences of detention to be particularly serious, causing severe emotional and psychological stress which may amount to inhuman and degrading treatment.
Most of the detained persons in question are asylum seekers from Iraq, Iran and Afghanistan who arrived by boat from Indonesia. Australian legislation stipulates that such detention is for administrative purposes while assessing if individuals qualify as refugees under the 1951 Convention relating to the Status of Refugees. Since 16 January 2002, hundreds of asylum seekers in Woomera have initiated hunger strikes and protests against the Australian government's policy of detention and its freeze on asylum applications of Afghans. Other asylum seekers at various detention centres have also begun hunger strikes and protests in support of the legitimate demands of the Woomera detainees.
Australia continues to use detention as a means of discouraging unauthorised migration. Australia is, indeed, the only hosting country, which has a non-revisable, mandatory detention policy for unauthorised arrivals of asylum seekers. In accordance with 1994 legislation, all non-citizens who unlawfully enter Australia, including those seeking asylum, are placed in detention. OMCT notably condemns the lack of time limit on detention provided for in the Australian Migration Act.
In 1997, the United Nations Commission on Human Rights requested the Working Group on Arbitrary Detention to «devote all necessary attention to reports concerning the situation of immigrants and asylum seekers who are allegedly being held in prolonged administrative custody without the possibility of administrative or judicial remedy».
In addition, many United Nations mechanisms, including the UN Committee on the Elimination of Racial Discrimination, in the recent years, expressed their concerned about the situations of asylum seekers in Australia. The UN Human Rights Committee further stated that the mandatory detention under the migration act of “unlawful non-citizens”, including asylum seekers, raises questions of compliance with international human rights standards, which provide that no person shall be subjected to arbitrary detention.
OMCT recalls that, as a matter of priority, detention is never a solution to the movement of refugees and asylum seekers and should be avoided.
In view of the continuing and blatant violation of international refugee law by Australian government, OMCT urges the UN Working Group to urgently examine the arbitrary character of the detention of asylum seekers, and to consider carrying out a visit into the country in order to investigate the conditions of detention of immigrants and asylum seekers who are allegedly being held in prolonged administrative detention without the possibility of administrative or judicial remedy.
Background information
Following the deliberation N°5 of the Working Group on Arbitrary Detention related to the «Situation regarding immigrants and asylum seekers, the experts have already expressed their concerns about the situation of asylum seekers and recommended in particular that an absolute maximum duration for the detention of asylum seekers should be specified in national law. For the time being, there is no time limit on detention provided for in the Australian Migration Act. The Working Group further recommended that a decision to detain should be reviewed as to its necessity and its compliance with international legal standards by means of a prompt, oral hearing by a court or similar competent independent and impartial review, accompanied by the appropriate provision of legal aid. In the event that continued detention is authorized, detainees should be able to initiate further challenges against the reasons for detention.
In addition, the UN Committee on the Elimination of Racial Discrimination expressed its concerns, in March 2000, about the situation of asylum seekers in the country and recommended “that Australia implement faithfully the provisions of the 1951 Convention relating to the Status of Refugees, as well as the 1967 Protocol thereto, with a view to continuing its cooperation with the United Nations High Commissioner for Refugees and in accordance with the guidelines in UNHCR's "Handbook on Refugee Determination Procedures" .
OMCT remains particularly concerned at the detention of unaccompanied children and recalls that unaccompanied children seeking asylum should never be detained. Mandatory immigration detention results in physical, emotional and social neglect and therefore deprives detained children of developmental opportunities. The treatment of children also breaches the Convention of the Rights of the Child, and the Rules of the Protection of Juveniles Deprived of their Liberty. In this respect, OMCT recalls the provisions of article 37 b) of the UNCRC which stipulates that «States Parties shall ensure that… no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time». Children should not be kept in mandatory immigration detention but should be released into the community, together with both parents. Detention further denies children access to social justice policies inherent in the welfare state that are usually available to Australian children. Such discrimination contravenes the principle of non-discrimination enshrined in article 2 of Convention on the Rights of the Child. Non-discrimination means that children in detention should not be treated differently from children anywhere else in Australia.
Although many asylum seekers are in serious need of medical or psychological assistance, this is not taken into account. Asylum seekers who may have undergone traumatic experiences in their country of origin, such as torture or ill treatment in the course of arbitrary detention, present a wide range of health problems and there are additional difficulties of language and reluctance to discuss traumatic episodes. Detention in the country of reception is a particularly disproportionate response to, for example, arrival at a border. The arbitrary detention of asylum seekers is contrary to the 1951 Convention Relating to the Status of Refugees and its 1967 protocol and the conclusions of the Executive Committee of the United Nations High Commissioner for Refugees.
Recently, the UN Human Rights Committee stated that “the mandatory detention under the Migration Act of «unlawful non-citizens», including asylum seekers, raises questions of compliance with article 9, paragraph 1 of the International Covenant on Civil and Political Rights, which provides that no person shall be subjected to arbitrary detention. One of the major concerns regarding detention of asylum seekers in Australia is the States Party’s policy, in the context of mandatory detention, of not informing the detainees of their right to seek advice and of not allowing access by non-governmental human rights organisations to the detainees in order to inform them of this right.
In this context, it is of the utmost importance to urge the Australian government to comply with its obligation under international refugee law, and in particular, with regard to the rights of refugees and asylum seekers to have access to adequate and effective representation and prompt judicial proceedings.