Australian Human Rights Commission Submission to UN Committee Against Torture, 17 October 2014 third countries where they are indefinitely detained in harsh conditions. All people who arrive in Australia and make claims for asylum should have those claims assessed on the Australian mainland through the refugee status determination and complementary protection system that applies under the Migration Act. If they are found to be owed protection, they should be granted a Permanent Protection Visa and allowed to live in Australia. Legislative safeguards be introduced to protect asylum seekers from being transferred to and processed in third countries where they face a real risk of significant harm. In particular LGBTI asylum seekers should not be removed to a country in which homosexual activity is criminalised. The following Bills not be passed by the Australian Parliament as they are incompatible with Australia’s non-refoulement obligations: • • • • Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013 (Cth) Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) Schedule 5 of the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) Migration Amendment (Protection and Other Measures) Bill 2014 (Cth). 123. In 2013 the Commission published ‘Asylum Seekers, refugees and human rights: Snapshot Report’. This provides a detailed overview of policy in this area, and the Commission’s concerns about human rights compliance. This section of the submission is drawn from that report. 124. Australia maintains one of the most restrictive immigration detention systems in the world. The Commission has for many years called for an end to this system because it leads to breaches of human rights obligations under treaties to which Australia is a party. 125. The Commission acknowledges that immigration detention may be legitimate for a strictly limited period of time in order to conduct health, security and identity checks. The need to detain a person should be assessed on a caseby-case basis taking into consideration their individual circumstances. 126. Australia’s High Court has held in Al-Kateb v Godwin111 that it is not contrary to Australian law to keep a person in immigration detention even if the removal of that person from Australia is not reasonably practicable in the foreseeable future. This has been interpreted as meaning there is no time limit on the lawfulness of detention under Australian law. 127. However, a more recent unanimous judgment of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection casts some doubt on indefinite detention.112 In this case, the Court confirmed that the Migration Act does not authorise detention at the unconstrained discretion of the Executive. Detention under the Migration Act can only be for the purposes identified in the Act. 36