Australia Doubles Down on Indefinite Detention

In September last year, the Australian government lost a case in the Federal Court. The case concerned a refugee from Syria whose visa had been cancelled after a criminal conviction. Despite having served his jail sentence, the man was placed back into immigration detention. However, he was offered no pathway to have his visa reinstated, nor could he be sent back to Syria due to the danger that presented. He now exists in legal limbo. The court ruled that detention had to be “for a purpose”: either a pathway toward legal status had to be presented, or the person had to be returned to their country of origin. Australia could not make indefinite detention a permanent feature of its immigration policies.

As has become a consistent trait of the current Australian government, when it doesn’t like a legal decision it simply legislates its way out. So in early May the government rushed through the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021. The changes to the law broadened the powers of the minister for immigration to not only cancel someone’s visa on character grounds, but to make decisions that would effectively leave people stranded in detention without any ability to gain legal status.

Australia has already been holding over 100 people in detention centers – both onshore and offshore in Nauru – for over five years, with some being held up to a decade. These are people whose situations in their countries of origin Australia has accepted as too dangerous for them to return, but Australia refuses to offer them refugee visas simply due to the way they arrived in Australia. Australia deems arrivals by sea unacceptable, and wishes to send a strong signal to other people not to make such attempts.

The recent change in the legislation adds “character grounds” as another criteria by which Australia can detain people for indefinite periods. These character grounds include not only criminal convictions, but also a negative assessment from a security agency, or even an association with a group that the minister believes is engaged in criminal behavior. The latter is a highly flexible criteria, and one with the potential for the government to abuse. The results are extraordinary decisions to overturn a person’s refugee status.

As was demonstrated with the case of the refugee from Syria in the Federal Court, the government wishes to exert these powers on people who have served their debt to society. Refugees are not offered the ability to rehabilitate themselves via the justice system as other members of Australian society are; the sanctuary offered by Australia now comes with distinct conditions.Those conditions are based on an inherent suspicion toward refugees, something other migrant groups do not have to contend with.

It is not only refugees that the Australian government has created a trap for, however. It has entrapped itself. The Australian government knows that it would be in breach of the non-refoulement clause of the international convention on refugees were it to deport these people, but it is refusing to offer them any option for gaining legal status. The government is therefore not only creating a regime of permanent detention for a number of refugees, but also for itself. The system is a considerable drain on the country’s resources – particularly the offshore detention centers – as well as a drain on its moral authority.

The new legislation was born from Australia’s refusal to approach the reality of asylum seeking on any terms but its own. Over the past two decades the Australian government has had a single-minded focus on establishing a culture of deterrence for anyone seeking to claim asylum in Australia through informal channels. The government has demonstrated an unwillingness to be bound by any laws that it perceives to be standing in the way of this higher purpose. But this suspicion toward those arriving by sea has now been extended to those who have arrived by regular channels, but who no longer meet the government’s standards of behavior.

This goes to the heart of the tensions within Australia’s approach to refugees. Canberra maintains its commitments to the refugee convention by having a decent sized resettlement program for those who are in genuine need of asylum, yet it refuses to accept that seeking asylum is a fundamentally messy process. Irregularities will always exist, and these are the burdens that the country has accepted to carry as part of its international obligations. But in its decision to simply warehouse people indefinitely the Australian government is only creating further problems for itself, not alleviating them.