- Published:
- Wednesday, 22 June 2022 at 11:08 am
'I never understood why it was necessary to keep me in detention for this long.' – Hamid.
This year, the theme for Refugee Week is ‘Healing’.
We are using this week to reflect on the experiences of our clients and highlight key opportunities to reform to build a fair and more just migration system.
At Victoria Legal Aid (VLA), our migration law program sees daily the impacts of the migration system on our clients, including severe trauma, pain and suffering, and ongoing mental health issues.
The prospect of indefinite detention, uncertainty about long term migration status, being prevented from reuniting with family and a lack of any supports while seeking asylum are all examples of ways in which people seeking asylum and refugees are prevented from healing.
In many cases, our clients are caused further harm due to unfair processes, barriers in seeking legal review and lack of community supports. Our migration system can be improved in tangible ways and we have an opportunity to provide fairer, more compassionate and humane treatment to people seeking asylum.
Our migration work
We assist people who have had an adverse decision made under the Migration Act, including where their application for protection or citizenship has been refused, or they have had their visa cancelled, and where people are being held in immigration detention. Over the past year, our migration program provided over 1,200 advices to asylum seekers and other marginalised non-citizens. We currently represent approximately 70 people who are detained in immigration detention centres, many who are facing the prospect of being detained indefinitely.
Over the past two decades, and particularly since 2014, the Migration Act and Australia’s migration system has undergone significant changes.
These changes have purposefully created a system that discourages people from attempting to seek asylum in Australia, discriminates against asylum seekers and refugees of the basis of their mode of arrival and makes it extremely difficult for refugees and asylum seekers to live freely and with dignity in Australia.
Our clients’ experiences of indefinite detention, of arbitrary decision-making, significant delays and limited community supports, are damaging and cause long term harm, and highlight the changes the Australian migration system needs, to be fairer and more accountable.
Hamid’s story – released after being detained for more than eight years
After being detained for more than eight years, our client, Hamid, was recently released into the community.
Hamid fled his home country, torn by civil war for a long time, to seek safety in another country. He arrived in Australia by boat in November 2012. After being detained for a couple of months, Hamid was granted a bridging visa to live in the community which expired in July 2013. He was prevented from applying for another bridging visa without the Minister for Immigration’s permission. While living in community, Hamid could not work and did not have access to any financial support or Medicare. As a result of contact with the police and the hospital system for his mental health, the Department decided to re-detain him in February 2014. Hamid remained in immigration detention for more than eight years.
It was clear that remaining in immigration detention was detrimental to Hamid’s mental health and was not a result of Hamid being a risk to the community.
‘My treating psychiatrist and medical staff in the detention centre recommended that I be released a long time ago. They said that detention was bad for my mental health and that I would likely get worse if kept in there. The Commonwealth Ombudsman repeatedly said that I should be released. I was given awards from Border Force for my good behaviour in detention. Even when the Minister personally refused my protection visa, he said that I was a low risk of harm to anybody. I got a report from the Human Rights Commission and separately from the United Nations Working Group which both found that my detention was arbitrary and recommended that I be released, but I remained in detention with no idea of if or when I would ever be released.’
Despite being found to be a refugee, acknowledgement that he did not present a risk to the community and having no criminal record, the Minister refused to grant Hamid a protection visa. Hamid’s court applications to review this decision failed. VLA started working with Hamid in 2019 to assist him to seek special leave to the High Court of Australia, which was unsuccessful. We ultimately were successful in obtaining an order to compel the Department of Immigration to remove Hamid to another country. On the last day the Department was required to respond, the new Minister for Immigration intervened to grant Hamid a visa and he was released from detention.
‘I have been found to be a refugee. I have never been charged with a criminal offence in any country. I never understood why it was necessary to keep me in detention for this long. Basically, my problem was about mental health, nothing else. How can you judge someone who wasn’t well? But that is what happened. I remained in detention for over eight years. Nothing had changed about my circumstances but one day, the Minister decided I could leave detention and live in the community.’
Hamid’s story is an example of the failings of Australia’s detention system which keeps people in detention without adequate processes for review. Hamid’s despair about being arbitrarily and indefinitely detained is an experience shared by many clients VLA works with to challenge unfair decisions, and while he is hopeful about his future, he remains worried for others.
‘I am trying to be positive about my future life. I have friends in the Australian community who are helping me to settle in the community. This will take a long time, but I understand myself better than ever before. I am hoping that I get a permanent visa and am looking forward to learning more English and finding a job. But I’m worried about the people left behind in the detention centre.’
A fairer, more humane system
Informed by our work and the experiences of our clients, these changes would help move toward a fairer, more humane system:
- reviewing immigration detention processes, including risk assessment tools, oversight mechanisms and the processes for the granting of bridging visas, as well as consideration of maximum terms of detention and the circumstances of long-term detainees
- removing discriminatory practices relating to an asylum seeker’s mode of arrival, including abolishing the Immigration Assessment Authority, and ensuring Australia’s laws effectively enshrine our international obligations
- expanding access to migration legal assistance both to ensure fairness for applicants and to ensure that the judicial process runs smoothly and efficiently
- working together with experts from the judiciary, the legal profession and government, to develop innovative timely solutions to the huge backlogs and delays in the system
- reviewing statutory bars and limiting the Minister’s personal discretion in decision-making
- granting permanent protection to all refugees, in accordance with international human rights law
- reuniting families by allowing family members of refugees to come Australia
- providing necessary supports to people seeking asylum to enable their full participation in the community, including a right to work, study and access social security and Medicare.
We are hopeful that the government and our partners can work together to improve our migration system and provide real pathways to safety and healing for our clients, and those who seek safety in Australia.
More information about Refugee Week 2022
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