The human rights of people in immigration detention are of special concern to the Commission because the right to liberty is a fundamental human right recognised in major human rights instruments to which Australia is a party, including the International Covenant on Civil and Political Rights. The human rights of vulnerable groups – including children, asylum seekers and refugees – are given special protection under international law. The conditions for and treatment of people in immigration detention should comply with Australia’s international human rights obligations.
These are contained in a range of international treaties the Australian Government has voluntarily become a party of. Under the Migration Act 1958, it is mandatory for any non-citizen in Australia without a valid visa to be detained, whether they arrive on the mainland or on an ‘excised offshore place’. These people – called ‘unlawful non-citizens’ under the Migration Act – may only be released from immigration detention if they are granted a visa or removed from Australia. Any asylum seeker who has arrived in an ‘excised offshore place’ by boat from 13 August 2012 onwards is potentially liable to transfer to a third country for processing of their claim for protection.
Some of these asylum seekers have been transferred to Nauru and Manus Island in Papua New Guinea where they are in immigration detention. A large number of people who arrived in Australia from 13 August 2012 onwards remain in immigration detention in Australia. Some have been released on bridging visas. There is a well-established link between prolonged indefinite detention and serious mental health issues.
Uncertainty about their future, lack of independence and loss of control over their lives, the monotony of life in detention, concern about family members still living in dangerous situations overseas, the impacts of past torture and trauma and witnessing the negative impacts of detention on other detainees all contribute to the deterioration of mental health and wellbeing.
Detainees may experience a range of mental health issues, including depression, anxiety, cognitive problems, difficulties regulating their emotions, consistently behaving in a way that is not characteristic or normal, sleep-wake cycle reversal (suffering insomnia and an inability to sleep at night) and engaging in negative coping strategies such as self-harm. In serious cases, prolonged indefinite detention can lead to suicide. Alternatives to detention for asylum seekers are not only more humane than immigration detention, they have been found to be effective in managing risks to the community and far less costly than detention in closed facilities.
Releasing asylum seekers from detention after they have passed initial health, identity and security checks, and allowing them to live in the community while their applications are processed, greatly reduces the human and financial costs of immigration detention while also ensuring that potential risks to the community to be managed effectively.