An alternative to indefinite mandatory detention of asylum seekers

The model proposed by Justice for Asylum Seekers takes a different approach. It provides for release or continued detention to be determined by an assessment panel with both departmental and outside members.

Third, those who have not been properly denied release on one of the grounds set out above should be released on an appropriate bridging visa subject where necessary to restrictions on movement. The bridging visa may provide certain restrictions on the freedom of movement of the asylum seeker.

The Human Rights and Equal Opportunity Commission proposed two types of bridging visa, an open detention bridging visa, and a community release bridging visa, but this level of complexity is unnecessary.

All that is required is the introduction of a new category of visa to which can be attached an appropriate level of supervision as the individual circumstances of each visa holder necessitate.

The Australian criminal justice system already provides a range of release options with varying degrees of supervision for those on bail or parol or probation. The options include reporting to police or other officials, living and remaining in a specified place or district, home detention and electronic monitoring.

These same, well-tried options could be made available for asylum seekers released from detention. The conditions on the visas proposed by the Human Rights and Equal Opportunity Commission seem unnecessarily restrictive, making the options attached to the visas very narrow.

A better approach involves complete flexibility in determining the appropriate conditions to be attached to a visa. No person should be subjected to more restriction of freedom than is necessary. Each person should be individually assessed and, where some restriction is considered necessary, for example, for one of the reasons relevant to a decision to continue detention, then it should be the least appropriate restriction necessary for the individual asylum seeker.

Fourth, any asylum seeker who breaches the conditions set for his or her release without good reason may be returned to detention and should not be eligible to re-apply for release for a period of 30 days from the time of return to detention.

Further if circumstances change so that an asylum seeker who was released comes within one of the five categories of person who may be detained, the person may be returned to detention. Where an asylum seeker is returned to detention, his or her detention must be reviewed before the completion of a 30 day period. In considering release the departmental officer may consider each of the criteria applicable in relation to an initial decision to detain.

Finally, any asylum seeker detained beyond the initial period of 30 days may seek review of the decision to continue detention. A departmental officer may review at any time and must do so at least every 30 days.

An asylum seeker may also seek independent external review of the necessity of continued detention beyond the 30 day initial period and of the necessity and appropriateness of any restrictions imposed as conditions for release. Where the review is undertaken by a tribunal, the Federal Court should be able to review the decision of the tribunal on a point of law.

This basic model is a workable alternative to the present system. It respects the human rights of asylum seekers. It offers appropriate protection to the Australian community. It is also, coincidentally, far less expensive than the present system, a far lesser drain on taxpayers’ resources.