Immigration detention in Australia

Persons in immigration detention may at any time opt to voluntarily leave Australia for their country of origin, or they may be deported or given a bridging or temporary visa.

In February 2019, Imasi made a legal challenge to the High Court of Australia, attempting to overturn the landmark Al Kateb v Godwin decision.

Mandatory detention of asylum seekers (so called, "unlawful arrivals") in Australia was established by the Keating government by the Migration Reform Act 1992 which came into operation on 1 September 1994.

Mandatory detention was introduced to "support the integrity of Australia's immigration program" and "management of Australian borders" and to distinguish between those who have submitted themselves to offshore entry processes prior to arrival and those who have not.

Under the policy, asylum seekers are mandatorily detained while they "undergo an assessment process, including security and health checking, to establish if they have a legitimate reason for staying in Australia".

The Keating government's interim measures in 1992 were contained in the Migration Amendment Act 1992, which set up a regime of mandatory detention, with bipartisan support.

Immigration Minister Gerry Hand told Parliament in his Second Reading Speech:[1] The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community ... this legislation is only intended to be an interim measure.The Migration Amendment Act 1992 did impose a 273-day limit on detention, but specifically disallowed judicial review.

The government argued that this distinction was justifiable because visa overstayers had already submitted themselves to proper entry processing offshore and were therefore in a different category to those who had not and that boat arrivals had demonstrated a high likelihood of absconding where detention was not in place.

The vast majority of children arrived and were put into mandatory detention facilities with their families for indefinite periods of time with no real opportunity to argue their case before independent tribunal or court.

The inquiry found that the Australian government's refusal to implement these recommendations amounted to "..cruel, inhumane and degrading treatment of those children in detention".

The key recommendations of the Inquiry were that children with their parents be released immediately into the community and that detention laws should be amended to comply with the Convention on the Rights of the Child.

The newly elected Rudd government, under Immigration Minister Chris Evans, announced a series of measures aimed at achieving what it described as a more "compassionate policy".

[21] The Pacific Solution had involved offshore processing, a system of "temporary protection visas" for unauthorised arrivals, and a policy of turning back boats where possible.

In July 2008, the Australian government announced it was ending its policy of automatic detention for asylum seekers who arrive in the country without visas.

[35] The Gillard government undertook a series of adjustments to Australia's system of mandatory detention amid a growing stream of unauthorised boat arrivals.

Julia Gillard and immigration minister Chris Bowen mooted various regional options for asylum seeker processing – notably East Timor and Malaysia – before reverting to Nauru and Manus Island in late 2012.

On 31 August, the High Court ruled that the agreement to transfer refugees from Australia to Malaysia was invalid, and ordered that it not proceed on the basis that it contravened human rights protections established under existing laws.

[38][39] The Government was unable to secure the support of the Greens or Opposition in the Senate for modifications to enable the Malaysia Solution to proceed and instead reverted to expanding onshore processing arrangements.

[13] Unable to secure passage of the Bill through Parliament following the emotional debate, the government convened a panel chaired by Angus Houston to consider options.

The actions taken by the Rudd government from July 2013 were the primary cause for the major reduction seen in boat arrivals over the 2013 – 2014 period, according to research conducted by former Immigration Department chief John Menadue and Australian National University migration expert Peter Hughes.

A feature of the new government's policy was the total secrecy of the operations and treatment of persons intercepted at sea and those in immigration detention in general.

In addition, the Abbott government has been more prepared to cancel visas on character grounds for people who have been lawfully present in Australia for some time, bringing them within the scope of the mandatory detention rules.

Also, the Abbott government has passed legislation to strip Australian citizenship of dual nationals in some circumstances,[46] rendering such persons non-citizens and subject to immigration detention for not holding a valid visa, and deportation.

The report was limited because the HRC was barred from visiting and inquiring as to the condition of children in offshore detention on Manus Island and Nauru.

[53] In September 2017, the Department of Immigration awarded a $423 million contract to Paladin Group, a little-known private military contractor, to manage the new centers at Lorengau.

[56] Morrison, with Dutton still in place as Minister for Home Affairs, continued the policies of the previous Coalition governments towards asylum seekers, although they did promise to ensure that all children would be off Nauru by the end of 2018.

Human rights advocates hailed the decision, with one calling it a “tipping point as a country”, with the weight of public opinion believing that sick people need treatment.

[70] Protests against government policy continued to take place around Australia including activists disrupting the Australian Open men's tennis final in 2015.

Professor Jane McAdam, director of the Centre, said that in the last 25 years, policy has changed direction, and that offshore processing, boat turnbacks and mandatory detention "not only deny the humanity to people that applied and deflect problems elsewhere, but also violate many of our obligations under international law”.

[9][10] In 2006, the federal government made a $400,000 compensation payout to an 11-year-old Iranian boy, Shayan Badraie, for the psychological harm he suffered while being detained in Woomera and Villawood detention centres between 2000 and 2002.