‘The decade I passed inside detention has haunted me mentally’ – the harms of indefinitely detaining refugees

In Refugee Week our Migration Program Managers Sarah Fisher and Chelsea Clark outline the risks of newly passed laws that cement indefinite detention for refugees.

This is the fate that awaits many people like Seth, after a new law was passed by the Australian parliament last month.

The Migration Amendment (Clarifying International Obligations for Removal) Bill was justified by the Minister for Immigration as a restatement of the government’s commitment to upholding human rights and its International Treaty obligations not to send people back to countries where they may be harmed. But the practical effect of this law is deeply concerning. As legal experts have pointed out, under the changes, people who are found to be refugees, but who are refused a visa on other grounds, are likely to be subject to prolonged or indefinite detention without recourse to legal review that detainees previously had.

The new law will leave people caught in this system with an impossible choice – return to a country where they are at risk of serious harm or live in a legally sanctioned limbo of detention without end.

Australia’s legal obligations – domestic and international

Australia has obligations under the International Covenant on Civil and Political Rights (ICCPR) not to subject a person to arbitrary detention. Detention should only be a measure of last resort and must be justified at regular intervals as reasonable, necessary and proportionate in all the circumstances.

Even before the new law was passed, our immigration detention scheme was inconsistent with these international obligations. The Migration Act provides that a person without a visa must be detained until they are removed, deported or granted a visa. With no legislative safeguards or a structured monitoring system in place, periods of detention are effectively unlimited. Courts have however found that to be lawful, detention must be for the reason of either admitting or removing a non-citizen. The new law arguably introduces a new reason for detention, namely detention for the purpose of meeting Australia’s non-refoulement obligations.

Lack of review options for those indefinitely detained

For people found to be refugees, but who are refused a visa on other grounds, there are only two ways to bring mandatory detention to an end. Either a third country can be found willing to offer resettlement or the Minister can exercise their personal power to grant a visa.

In practice, it is near impossible to secure third countries to resettle a person who has been refused a visa by the Australian government. Additionally, no responsible government department has a policy or processes in place to investigate third country resettlement, which can unnecessarily extend detention.

The chance of the Minister using their non-compellable powers in these circumstances is also very low. The powers are discretionary and can only be exercised if the Minister considers it to be in the ‘public interest’. The decisions (both whether to use the power and the outcome of using the power) are not reviewable. In VLA’s experience, the Minister routinely refuses to consider using a discretionary power, even where, as with our client Seth, the detainee is found not to pose a danger to the community, and despite independent assessments that detention is harmful to their physical and mental health. Multiple requests for Ministerial intervention were made on Seth’s behalf over many years but were unsuccessful.

Previously, refugees who were indefinitely detained with no possibility of being sent back because of the risk of serious harm, could apply to a court to end their detention. The new legislation has removed this protection. It makes indefinite detention lawful in these circumstances and removes the court’s ability to scrutinise this detention.

Life after detention

It was recourse to the courts that eventually led to Seth’s application for a protection visa being reassessed, and a visa granted. After ten years in detention, he is now living in a regional area where he has forged strong connections in the community. ‘Breathing my freedom, I feel safe and I'm happy’, said Seth. ‘I enjoy going to work every day and my hopes for the future are to fulfil my career goal of becoming an electrician and participating in community activities.’

‘I'm so grateful for the Australian community and the regional council that where I’m settled in now,’ he said.

Seth’s story is about determination to build a new life and contribute to the country which has given him protection. His example ultimately shows that a person who has endured long-term detention, holds the potential to establish himself and make a real contribution to the community.

Unacceptable growth in the time people are detained

Statistics rom the Department of Home Affairs show that time spent in immigration detention is now at a record high.

At 31 March this year, the average length people were held in detention in Australia was 641 days, with 7.2 per cent of detainees being held for longer than 1825 days. In comparable countries such as Canada, between 2019 and 2020, the average period(opens in a new window) for people held in detention facilities was 13.9 days.

Decades of research has consistently shown that extended immigration detention causes a deterioration in the detained person’s mental health and for some has caused serious psychiatric disorders. During his years in detention Seth self-harmed several times.

There is also a steep financial cost to this policy. On government estimates, it costs around $362,000 per year to keep one person in detention.

With 1500 people being held in onshore detention right now, it is difficult to rationalise ongoing indefinite detention as the default policy choice.

There is also something fundamentally wrong about purporting to meet our international obligations not to return a person to potential harm through a trade off with our international obligations not to arbitrarily detain.

Rather than enhance our commitment to our international obligations, indefinite detention will further erode our reputation as a good international citizen. We see through our work the damage done to people through indefinite detention. As Seth said, even as he rebuilds his life in the community, he’s haunted by his decade in detention. This is damage we should be seeking to avoid, not further entrench.

More information

Read a joint statement from refugee law organisations about the new law.