Australian Human Rights Commission Submission to UN Committee Against Torture, 17 October 2014 8 Immigration detention and asylum seeker policy110 LOIPR: para 39-42 – mandatory immigration detention; para 11 – adverse security assessments and statelessness; para 32 – conditions of detention; para 43 – children in immigration detention; paras 15, 18-20, 40 – non-refoulement, complementary protection and offshore processing; para 8 – independent monitoring of detention facilities Relevant provisions of the CAT: Articles 1, 3, 4, 10, 11 and 16 Key issues: It is mandatory under the Migration Act 1958 (Cth) for every non-citizen who is in Australia without a valid visa to be detained, regardless of his or her individual circumstances, until they are either granted a visa or removed from Australia. The Commission has raised concerns over many years that the system of mandatory detention leads to breaches of Australia’s international human rights obligations because: • The detention of an unlawful non-citizen is not based on an individual assessment about whether the particular person needs to be detained • Persons who are detained cannot seek judicial review of whether or not their detention is necessary • Under the Migration Act there is no time limit on how long a person can be detained, resulting in people being subjected to prolonged and indefinite detention • Mandatory immigration detention has significant human impacts, including the deterioration of the mental health of detainees – in particular, long periods in immigration detention facilities puts children at high risk of serious mental harm, which may amount to cruel, inhuman or degrading treatment in breach of the CRC • Mandatory immigration detention of children is fundamentally inconsistent with Australia’s obligations under the CRC as it detains children as a first (rather than last) resort • The conditions in many of Australia’s immigration detention facilities are such that they are not appropriate places in which to hold people, especially for prolonged periods of time • These concerns are exacerbated for children due to the harsh physical environments in remote locations and the lack of appropriate recreational spaces, activities and access to education The Commission has long recommended that, instead of requiring the mandatory immigration detention of broad groups of people, a person should only be detained if it is shown to be necessary in their individual case. Further, time limits for detention and access to judicial oversight of detention should be introduced to ensure that if a person is detained, they are not detained for any longer than is necessary. 31