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By Sherine Al Shallah

On 15 June 2021, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke announced that the Murugappan family of four would be moved – from immigration detention on Christmas Island, to a ‘community detention placement’ in Perth. 

What is immigration detention?

Under Australian law, every person who is not an Australian citizen and who does not have a valid visa to enter or remain in Australia must be detained, and cannot be released from detention except in accordance with the conditions and powers set out in the Migration Act 1958 (Cth). In many cases, these conditions rely on the relevant Minister exercising broad, non-compellable and non-reviewable discretionary powers. There is no automatic exemption for people seeking asylum, meaning everyone arriving by boat without a visa must be detained on arrival. Even after being released, asylum seekers face risks of re-detention in various circumstances, including if their visas are cancelled or expire and they are subject to deportation. 

Section 5 of the Migration Act defines immigration detention as including being held in a detention centre, prison or remand centre, police station or watch house, or ‘another place approved by the Minister in writing’. This last category of places can include a placement in the community if the Minister thinks that it is ‘in the public interest’ to exercise his or her power under section 197AB to make a ‘residence determination’. Residence determinations allow the people covered by them to reside in a specified place, subject to certain conditions, rather than be held in a closed detention facility.

What is community detention?

Community detention is generally used to refer to residence determinations made by the Minister under section 197AB, and the conditions with which people subject to those determinations must comply. For example, the Refugee Council of Australia describes it as:

a form of detention … where people live in the community but in a specified place determined by the government (known as ‘residence determinations’), under certain restrictions. 

Community detention may come with reporting or other conditions, such as ‘requirements to live at a specified location, curfews, travel restrictions, regular reporting or even electronic monitoring’, as Jane McAdam and Fiona Chong note in Refugee Rights and Policy Wrongs (NewSouth, 2019).

The Minister generally grants community detention when circumstances warrant release from closed detention due to physical or mental health concerns which require additional support. Community detention tends to be accompanied by paid accommodation, needs-based support under the Status Resolution Support Services (SRSS) program, access to public schools and access to Medicare. People in community detention usually do not have work rights.

The Refugee Council of Australia reports that ‘the number of people in community detention has decreased in recent years’, and estimates that 537 people were subject to residence determinations, or in ‘community detention’, as at 31 March 2021.

What are other alternatives to immigration detention in a detention centre?

The grant of a visa is another viable alternative to immigration detention. A bridging visa, particularly a Bridging Visa E (BVE), is a temporary visa that allows the holder to remain in Australia, undetained, while their immigration status is resolved or application for a protection visa is processed. In addition to the 537 people subject to a residence determination, the Department of Home Affairs reports that a further 12,194 people held a BVE as at 31 March 2021. The Minister has broad discretionary powers under the Migration Act to decide whether to grant a BVE (or another visa), make a residence determination, or require an ‘unlawful non-citizen’ to remain in held detention. 

BVEs are time-limited (often valid for six months but sometimes for shorter or longer periods). The grant letter will advise the holder if they are permitted to work. 

The temporariness of BVEs may serve as a barrier to obtaining employment, and holders may struggle to secure accommodation on their own due to their lack of rental history, language barriers and other difficulties. Nevertheless, some asylum seekers may find BVEs to be preferable to community detention as they grant greater freedoms and allow them to generate income to independently support themselves and family, both here or overseas. Moreover, a decision not to renew a BVE may be appealed prior to its expiry, whereas there is no formal avenue to appeal the reversal of a residence determination. 

What do other countries do?

Australia’s immigration detention policies are a radical departure from State practice in comparable democratic countries, in form, process, criteria, and length of immigration detention. 

Notably, while other countries have broadened the use of community detention as a measure of first resort, and instituted alternatives to detention such as technological tools for in-community monitoring or reporting for higher risk individuals and release on ‘bond’, Australia stands alone in continuing to rely on mandatory and potentially indefinite detention in closed detention centres as its first and primary response

Good practice from other jurisdictions includes embedding legal certainty and safeguards against arbitrary and unlawful detention in the legal framework for immigration detention, for example by judicial oversight of detention and removal decisions (United Kingdom, New Zealand); legislatively enumerated criteria governing the grounds for detention, approval or rejection of asylum applications, and removal orders (Canada, United States, New Zealand); time-limited refugee status examination and risk assessment procedures (United Kingdom, European Union Framework); time limits for detention (European Union Framework, Greece, New Zealand); and mandatory government reporting on immigration detention (United States).

What is next for the Murugappan family? 

The Murugappan family, reunited in Perth, will be released from closed detention but required to remain at a specified residence and are unlikely to be permitted to travel within Australia. Nadesalingam and Priya Murugappan are unlikely to be able to work, however, Tharnicaa and Kopika will be able to go to public school, and the family will have access to income and healthcare support. Most importantly, the family will be able to interact with their new community and live a more normal life than that which they experienced within Australia’s highly securitised immigration detention network.  

Despite making the residence determination, the Minister has the power to re-detain the family and/or move them back to Christmas Island, should he choose to do so. On the other hand, he also has the power to grant the family bridging visas, allow Nades and Priya to work, and give the family more freedom of movement within Australia – possibly even back to Biloela where the family has such strong community ties. Indeed in this case, given the strength of these ties, the family’s demonstrated contribution to Australian society, and the harm inflicted upon them by years of immigration detention, the Minister might even consider exercising his power to grant the Murugappans permanent visas, bringing this destructive chapter to a close – for this family, at least. 

 

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.