As Amnesty International says Australia's detention system is in breach of UNHCR's 'Convention and Protocol Relating to the Status of Refugees, the government says recent changes to the detention system have greatly improved the situation.
ARTICLE 31
Amnesty International Refugee Campaign Coordinator Alexandra Pagliaro told SBS Australia's detention policy breaches Article 31 of the Refugee Convention, which is about not punishing asylum seekers for their mode of arrival.
"Currently, if you arrive by plane as an asylum seeker you are able to live in the community, to work, to send your kids to school while your claim is being processed. So there's really no reason why this can't happen for boat arrivals as well".
A document called 'UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers', says "the detention of asylum-seekers is, in the view of UNHCR, inherently undesirable".
"Article 31 of the 1951 Convention exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence," the document says.
"Consistent with this article, detention should only be resorted to in cases of necessity. The detention of asylum-seekers who come "directly" in an irregular manner should, therefore, not be automatic or unduly prolonged".
UN SAYS DETENTION OK UNDER CERTAIN CIRCUMSTANCES
But the document says the detention of asylum-seekers may exceptionally be resorted to for these reasons:
-To verify identity -- in cases where identity may be undetermined or in dispute.
- To determine the elements on which the claim for refugee status or asylum is based.
- In cases where asylum-seekers have destroyed their travel and /or identity documents or have used fraudulent documents in order to mislead the authorities of the State, in which they intend to claim asylum.
-To protect national security and public order.
WHO IS DETAINED IN AUSTRALIA
The Department of Immigration says three groups of people are detained in Australia:
-all unauthorised arrivals, for management of health, identity and security risks to the community.
-unlawful non-citizens who present unacceptable risks to the community and
-unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
The Department of Immigration says "detention in immigration centres is only used as a last resort and for the shortest practicable time".
"Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention would be subject to regular review," it says.
ASYLUM SEEKERS LIVING CONDITIONS
Ms Pagliaro also says living conditions for asylum seekers detained in Australia's detention centres should be improved.
"When we have gone to visit Christmas Island and Curtin detention centre, we've seen some pretty horrible situations there where you have people that have already fled war and torture and pretty severe persecution, so are quite traumatised, locked up indefinitely with no support," she told SBS.
But the government says conditions in detention ensure the inherent dignity of the human person.
"All services are provided in appropriate facilities, and people in detention are provided access to a full range of activities and other amenities," Immigration minister Chris Bowen told SBS.
Ms Pagliaro said overcrowding was an issue.
"We have seen people placed in tents on Christmas Island, or in situations where it's extremely hot, like at Curtin detention centre, or extremely cold.
"The last time we visited Christmas Island we saw people being given psychic assessments in corridors with many other people around them," she told SBS.
But Minister Bowen says the government has been working to relieve the pressure on Australia's detention network and will provide new accommodation in coming months.
"We have already dramatically reduced the population at Christmas Island, from a high of 3052 in December 2010 to the current population of 1312 people across five separate facilities".
"All people in immigration detention are treated humanely and are given access to appropriate health and mental health services," he added.
PROCESSING TIMES
Ms Pagliaro says while the government says it takes maximum 90 days to process asylum claims, often that doesn't happen for people who arrive by boat.
"For plane arrivals up to three months is generally how long it takes, but because they are in remote detention where is very hard to send officers, and because the all detention system at the moment is very unsustainable, it's taking a lot longer than that: it's taking six months, it's taking a year, it's taking two years".
But Minister Bowen told SBS the majority of irregular maritime arrivals have their refugee assessment completed within three to four months of lodging their statement of claims.
"We have implemented a range of measures to speed up the various stages of the assessment of asylum claims, including increasing operational capacity, recruiting and training additional staff to manage the volume of cases, and hiring an additional 70 Independent Merits Reviewers since November last year to improve the efficiency of the Independent Merits Review process".
CHILDREN IN DETENTION
Amnesty's Alexandra Pagliaro also called on the government to better protect the rights of child asylum seekers in Australia.
"There are hundreds of children in detention at the moment -- that is in breach of primarily the convention of the right of the child where government are supposed to act what's in the best interest of the child," Ms Pagliaro told SBS.
"And I don't think that anyone could agree that being locked up in a remote detention centre, such as Leonora, is in the best interest of any children."
But Minister Bowen says he has "already approved 1309 people for community detention, 956 (including 483 children) of whom are currently residing in the community, either in their community placements or having been granted Protection visas".
"A further 352 people (including 195 children) will move into their community detention placements in coming days.
"All children who are in immigration detention are held in alternative places of detention (not in immigration detention centres) or in community detention arrangements, where they have access to education, activities and external visits.
The 'UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers', say "unaccompanied minors should not, as a general rule, be detained".
"Where possible they should be released into the care of family members who already have residency within the asylum country.
"Where this is not possible, alternative care arrangements should be made by the competent child care authorities for unaccompanied minors to receive adequate accommodation and appropriate supervision," the document says.
