Recommendation 259

The Australian Government considers immigration detention an essential component of effective border control. The Australian Government's strong Home Affairs policies have increased public confidence, enabling Australia to have one of the world's most generous humanitarian programs, which increased to 18,750 places in 2018-2019. Since 2008, Australian Government policy has required that held detention be a last resort for the management of unlawful non-citizens who have not yet been granted permission to arrive or stay in Australia. Unlawful non-citizens will be detained until the assessment of health, identity and security risks which they present to the Australian community are resolved. These assessments are completed as expeditiously as possible to facilitate the shortest possible timeframe for detaining people in immigration detention facilities. This principle of last resort is not formally codified, other than in respect of minors in section 4AA of the Migration Act 1958(Cth).

Under the Migration Act, immigration detention is not limited by a prescribed timeframe but relevantly ends when the person is granted a visa or is removed from Australia.

The vast majority of asylum seekers have access to independent merits review of decisions to refuse visa applications by the Administrative Appeals Tribunal or, in certain circumstances, by the Immigration Assessment Authority. Asylum seekers also have a constitutional right to seek judicial review of migration decisions. People in immigration detention may seek judicial review of the lawfulness of their detention, and request or refuse consular access or legal representation at any time.

The Australian Government takes the care and wellbeing of vulnerable people in immigration detention seriously. Some detainees may be more vulnerable than others such as people who are frail, elderly, people who have complex health needs including mental health or where they have a history of torture, trauma or have been subject to people trafficking or domestic or family violence.

People in immigration detention are accommodated in facilities most appropriate to their risk, circumstances and needs. Any detainee who discloses a history of torture and/or trauma is offered referral to specialist torture and trauma counselling.

It remains the Australian Government's position that children should not be held in immigration detention centres where possible, but should be accommodated in alternative places of detention or in the community under a residence determination. Unaccompanied minors should be routinely placed in the community under Residence Determination arrangements. Based on individual circumstances, families with children and other vulnerable people may be placed in the community under Residence Determination arrangements or may reside lawfully in the community, depending on the level of support required.