Asylum Seekers in Australia - Essay Example

Asylum Seekers-Human Rights Student’s Name Institution Introduction The government of Australia proposed the amendments to the Migration Act 1958, which gave it the power to send immigrants back to their countries for any processing.1 The expectations are that all states should be in the forefront advocating for the respect for human rights more so the leadership of a state. The Australian government that should have the mandate of providing protection to refugees, as well as asylum seekers, was going against the moral obligations through the adoption of amended Acts. These amendments included mandatory detention and offshore processing that were undermining the human rights principles as established by the International Law. In this paper, the focus is on the two amendments and the ways in which the children were affected by the detention.2 Following the Offshore Processing Amendment Section 6A (l) (e), the government of Australia obtained powers to be able to authorise the transport of people entering their country. Such asylum seekers were transported to offshore camps and denied freedom of movement in such camps until the Australian government could take further action. They could be taken to any country that the authority preferred without any objection or seeking consent from the parties involved.3 The International Obligations or the Domestic Law of that country would consequently lack powers to question the move by the government. According to Adam Fletcher, an officer of the Castan Centre for Human Rights, this amendment was merely an attempt to reject the High Court’s ruling. The High Court thus was barred from intervening and found no basis for granting the asylum seekers the benefit of doubt, or even siding with them. The bill was granting the government powers to take asylum seekers to countries that may not even have laws of preserving the claims of refugees or those that do not even observe human rights. This amended bill did not consider the right to natural justice despite the fact that it is clearly outlined in the International Human Rights Obligations of Australia. According to the amendment of the Migration Law as described in the new subsection 198AB, the bill objects the existence of any law of natural justice with the implication that the refugees may lack any government intervention in case of an appeal. This bill, however, faced lots of opposition by several non-governmental organizations, which concern themselves with human rights, questioning the government’s transparency and accountability.4 In as much as this amendment was in order to abolish issues of non-refoulement, the fact that it ignores the requirements of Human Rights as provided for by the Human Rights Obligation of Australia makes it unlawful. Many human rights groups have condemned this amendment, accusing the government and opposition of politicizing essential issues without considering human rights and the rights of individuals that are vulnerable. The bill called for plenty of debates concerning its eligibility as a potential law to govern the people of Australia with biasness against refugees and asylum seekers in the country.5 Challenges Posed by the Amendments For several years now, Australia as a country has witnessed a couple of amendments to the laws and regulations concerning people who find their way into the land irregularly and those that come into the country seeking asylum. Almost all parliamentary debates have been spending time focusing on challenges that the asylum seekers and illegal immigrants face from the law. This is especially following the amendments of the 1958 law of asylum seekers which overlooks the human rights of these individuals and also 1951 Convention-1967 Protocol. The mechanism of handling asylum seekers in Australia faced lots of criticisms and due to its complexity; it risks even lots of amendments that will focus on preserving the rights of those in the country illegally or seeking asylum. It thus implies that an enormous responsibility is burdened to the Law Council of Australia to intervene. The intervention by the Law Council can help the community understand the principles of the development of policies, laws and regulations within the region. Following this responsibility given to the Law Council of Australia, the development of the Asylum Seeker Policy was realized. It clearly outlined the platform on which some of the amendments were made, primarily where the human rights were involved. What was most important as per this policy was to make the people understand that human life deserved to be treated with dignity, and there was no room for abusing human rights.6 However, the Asylum Seekers Policy only seeks to outline principles of the rule of law and the international humanitarian law. It was for the people to assess whether they were followed during the process of developing policies and law affecting the asylum seekers in the country. Moreover, under the Universal Declaration of Human Rights, every person has the opportunity of looking for asylum against prosecution from any country without harassment. Above all, the principle of non-refoulement that warns countries and states against forcing asylum seekers back to their countries, which they flee since their rights were under a threat and still stands firm to defend those seeking asylum from other countries. In as much as Australia had to establish laws against illegal immigrants therefore, they still had to make effort to ensure that the laws made were at par with the regional laws regarding foreign asylum seekers who may enter the country irregularly. The policy also seeks to ensure that illegal immigrants detained in the country must be subjected to humane conditions even during their detention period. It also addresses the regulations on interception of boats that transport those seeking asylum from Australia as guided by the authorities in Australia. Nevertheless, Australia faces an expectation from the entire globe that as a Nation it should be at the forefront to fight for human rights. In this regard, therefore, all individuals entering Australia with the identity of refugees or asylum seekers are expected to be treated with respect, fairness and humanely.7 This is properly outlined in 1951 Convention-1967 Protocol that to some extent provides some fundamental rights for humans and prohibits the mistreatment of the asylum seekers. Origin and Impact of Mandatory Detention and Excision on Human Rights It is now over twenty years since Australia introduced compulsory detention for immigrants and about more than eighteen years since the country passed a law to indefinitely detain the immigrants. The origin of such stringent measures taken against immigrants was simple.8 A boat had arrived in the country full of asylum seekers, and the government felt that this was an unnecessary influx. This influx would affect bipartisan support and hence introduced such strict policies to deal with the immigrants who lacked visas. During the amendment in 1992, the constitution outlined some designated people for the detention of which even the court lacked powers to order release, and that was clearly outlined in the new law. The amendments, however, imposed a daytime limit of two hundred and seventy-three on those that were under the detention of immigrants.9 As more and more boats of asylum seekers continued to arrive, further amendments of the law started and by 1994, it was clear as per the constitution that detention was applicable to all those who were arriving into the country without visas or those who were still hovering around the country with expired visas. Further amendments in 1951 Convention withdrew the 273 day time limits to detainees and made it clear that the only way a detainee could be freed was either via the provision of a visa, removal from the country or through deportation. In addition, in some circumstances, further amendments provided room for detainees to bridge for a visa to protect themselves from the detainment under the inhumane conditions. By 2001, Australia was out for yet more amendments to the 1958 Act as more asylum seekers continued to arrive in the region. The situation was referred to as Tampa crisis while the government pursued Pacific Solution. The amendment during this period set Christmas Islands, Cartier and Ashmore Islands and Keeling Islands to offshore places, and no individuals were allowed to get into the country via such places. Asylum seekers intercepted at the sea or in the offshore areas were captured and transferred to other states to seek cover and protection claims. Australia has continued to apply the detention rule, which is mandatory and indefinite for immigrants that come to the country without visas seeking asylum and some as refugees. Irrespective of the circumstances around any situation, therefore, it has become imperative that anybody that lacks a visa in the country is liable to detention. However, those who are lucky enough to get to the Australian mainland, the rules that determine their treatment are contained in the Unauthorized Maritime Arrivals and Other Measures Act 2013. The condition initially used to be the same as for people that were captured at the offshore places, yet currently all such people are expected to be detained as per the Australian government policy. The detainment, in this case, lacks the time limit and all detainees are kept in custody until they obtain valid visas or until they get deported to other countries. It was then legal for the Australian Government to keep anyone having breached any of the migration conditions under the Migration Act until the person died.10 As a matter of fact, these treatments on asylum seekers are purely against the international human rights obligations as the Commission honestly argues out. United Nations also has concerns regarding the system of indefinitely detaining immigrants in Australia. It is a country bound by legal obligations never to allow anybody be under arbitrary detention. In order to be able to achieve compliance with the international law, detainment should achieve some proportion, but again it should be the last option after considering a number of other alternatives.11 At least an option that only restricts a person from only a few of his or her rights would serve the same purpose, but not indefinite detention which breaches all human rights including the right to movement, natural justice, expression freedom, and sometimes even the right to life. When detention is chosen as the last possible option, at least it should not be done to the extent of unjustifiable periods. Even the Commission is fully aware and supports the fact that detention is legitimate and should only be performed for a specific amount of time and not indefinite as the Australian Government does it. In addition, for a person to be referred to detention, their cases should be assessed and re-assessed. It is for the establishment of the truth while taking into consideration all the circumstances surrounding the person’s lack of visa card. The necessity for an individual to be detained should be assessed as soon as the individual is put under detention so as to ensure that detention does not become arbitrary. According to the constitutional amendment Act 2001 of Excision from Migration Zone, a person should be held in detention if and only if the person poses a potential risk to the Australian community. It can as well occur when there are no any other possible ways of containing the risk. In any case, such immigrants should be allowed to dwell amongst the community while waiting for their immigration issues to be sorted out by the government and not detained as the government does.12 The Commission consistently emphasizes the fact that all persons within a region should be treated with respect and dignity as humans until their immigration status is solved. During the several occasions when the Commission pays visits to the detention centres, the victims have continued to express their fears of detrimental effects posed by their detainment that is indefinite.13 People often report to the Commission of the physical and psychological torture that the detainees go through harsh treatment following the long days of detention. Such impacts range from sleeplessness, frequent losses in concentration, sometimes feeling hopeless and peerless and most of the time not being able to run away from thoughts of self-harm and suicide. Effects of mental health on children under detention Numerous breaches of the rights of children have been observed over the years as the government still involved children in the detention system following the amendments to the 1958 Migration Act. The government failed to promote the mental health of the children under detention, and this grossly affected the total development of the children. This problem denied the children a chance to enjoy their rights to medical health and mental fitness.14 In some reported cases, the Australian government refused to listen to some state agencies and health experts. These experts were reasonably reporting that some children urgently needed to be transferred from the detention camps together with their parents for medical attention. In addition to demonstrating cruelty, inhumane and degrading treatment of the children by the Australian government, the government also extended the breach to the children’s’ rights to mental health, development and recovery. The children’s freedom of movement was also breached by the Australian Government. The act had adverse impacts on the children and was to be condemned with the strongest term possible.15 Several examinations of the children that have undergone detention under the Australian stringent laws of undermining the immigrants without visas have revealed depressing impacts. The longer the children are detained, the more harm is caused to their mental growth and development. The children under these detention camps have been proved to cause harm to themselves physically following suicidal thoughts due to anxiety, distress and bed-wetting during their stay in the camps.16 Such attempts to harm themselves have also been registered including swallowing shampoos, sewing their lips, refusing to eat, attempting to commit suicide and taking detergents among others. Other children who spend most of their lives in these detention camps have been diagnosed with psychiatric illnesses such as post-traumatic stress disorder and depression. All these acts of attempted self- injury or murder are efforts to deny the children their right to life.17 An enquiry from the experts of mental health revealed that there are various causes of mental disorders to children that are under the detention programme. Such factors may include but not limited to family separations during the periods of detention, pre-existing trauma and negative visa decisions. These factors arise from or are even worsened by the long periods of detention of the children in the detention centres following the amendment of the 1958 Migration Act. Much of the stress is increased by the absurd conditions of forever living inside a centre surrounded by razor wire and worse still, the daily sight of armed detention officers around the centre. It happened following the Excision of Migration Act of 2001. Despite the fact that most officers treated the children in relatively good manner, some were terrible and used vulgar as well as abusive language to the children. The situation grew worse by 2002 when some officers mercilessly addressed the children by numbers. This was instead of using their names, a behaviour that undermines the dignity of not only children, but the humankind in general.18 There are some mental health officers who still hovered around the premises to see the medical conditions of the children. However, these were insufficient in number to handle all the children that are brought to the detention centres now and then. The officers also failed to perform routine checks on the mental health of children on arrival. The situations of some of the children, therefore, continued to worsen as their stay in the detention centres elongated. Additionally, not all the detention health officers had adequate training as specialists in handling medical issues and hence some conditions of the children went unattended, leading to worsened situations. For instance, the children that had gone through past experiences of mental torture received no attention from the mental health officers, and this posed a risk to their future mental health.19 The only alternative that remains standing for better management of the mental health of all children in the detention centres is to just totally remove the children from the detention centres. After all, the children may not pose a considerable huge risk to the Australian government and even if that was to be true, the risk is not as vast as posed by the adult detainees. Moreover, the behaviour of having to detain children is against the International Humanitarian Law and undermines the rights of children. Impact on the Physical Health of Children Commonwealth registered a great failure to protect the physical health of the children that were kept in detention centres in Australia following their new laws on the treatment of immigrants. It included those that got into the country as asylum seekers fleeing from their countries.20 The standards of medical health and treatment in the detention camps are not consistent in ensuring total control of diseases. It varies with time and in some cases it may be worse, which raises questions on the ability of the centres to contain diseases. It is important to mention the fact that an effort is made to ensure health standards. However, so far the children are not in any position to enjoy the best health standards as per the international requirements.21 There are several factors that hinder the achievement of protection of the children's physical health, which may incorporate the physical environment and climate of the remote centres used for detention. In some centres, the terrain is bad, and the children may require adequate footwear that is most of the time not available for the detained children. Additionally, during certain times of the year and seasons, weather conditions vary and most of these detention centres lack cooling and heating facilities. The children end up being adversely affected and are harmed physically in the event that nothing about the changes is done. In some centres, the sanitary conditions of the toilets and accommodation rooms are devastating factored by overcrowding and hence posing a great risk of transmission of contagious diseases. Some children also entered the detention centres with pre-existing dietary conditions such as malnutrition, and since little care was taken to them as they entered, they end up dying of such conditions. In some centres the food that is offered is of low nutritional value and rarely puts the dietary requirements of the children into consideration and the monotony of the food creates lack of appetite. Special food for children is rarely prescribed, especially for the infants in the detention centres following the failure to contact an examination of the medical conditions and health vulnerabilities of the children on arrival at the centres.22 Failure to employ experts who have experience in paediatrics and dealing with victims of refugees and asylum seekers has added to the worsened conditions of children in the detention centres. At some point in time, it gets difficult to refer severe medical cases for further attention considering the distance and remoteness of the detention centres. Due to the delays in access to advanced medical care, deaths have been reported, and this is a violation of the children's rights to medical care and life as a whole.23 Another problem is lack of interpreters especially in Port Hedland, which undermines the medical examination procedure since there is no one to translate what the children say in a language that the medics can understand. There has also been a problem in preventing dental complications due to lack of adequate dental care and remedial in some of the detention centres. This factor in most occasions affects those children that have overstayed in the detention centres, facing similar challenges day in day out.24 Conclusion Due to the system in Australia of detaining persons without legal visas indefinitely, all visitors into the country seeking asylum have found themselves spending some of their time in a detention centre. Those that arrive via boats find themselves spending lengthy periods in the centres, whereas some even spend their entire lives in detention centres while still waiting for their immigration issues to be solved. The number of the detainees increased between 2010 and 2011 to levels of overcrowding in the centres and this increased tension in the immigration detention facilities. As the situation continued to worsen, several critical incidences started being reported, including suicide, self-laceration, self-denial of food among the children, lip-sewing and also ingestion of chemicals with the aim of committing suicide. During the two years, eight deaths were reported that appeared abnormal since six of them were openly reported as suicide. Bibliography Lowes, S. (2012). The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the ‘Malaysian Solution’Case. Human Rights Law Review, 12(1), 168-182. Lyons, M., & Smith, M. (2008). Gender pay equity, wage fixation and industrial relations reform in Australia. Employee Relations, 30(1), 4. doi:http://dx.doi.org/10.1108/01425450810835383 Meyerson, D. (2009). The protection of religious rights under the Australian law. Brigham Young University Law Review, 2009(3), 529-553. Ogawa, M. (2013). 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