mandatory immigration detention
Section 189 of Australia's Migration Act 1958 requires people arriving in Australia who are not citizens and do not hold a valid visa to be detained. This means that adults and children arriving without a valid visa must be detained, as well as people who arrive with a visa and subsequently become unlawful because their visa has either expired or been cancelled. If an individual’s visa is cancelled and they are recognised as a refugee, Australia cannot deport them due to non-refoulement obligations, but will detain them.
The Department of Home Affairs detains people in onshore or offshore closed immigration detention or alternative places of detention (APOD), including in hotels. There is no time limit on this detention and only very limited review by the courts is available. International law prescribes that immigration detention should not be used as a punishment or deterrence, but rather it should be an exceptional measure of last resort.
Who is held in Immigration Detention?
The latest available statistics from the Department of Home Affairs state that there were 1056 people in held immigration detention facilities, as at 31 August 2023. Currently, there are no children in immigration detention facilities. While the statistics are not broken down by reference to whether the persons are seeking asylum, approximately 15% of the total immigration detention population arrived without a valid visa, either by air or by boat. From the 1056 people in immigration detention, 15.8% were from New Zealand, 8.2% were from Iran, 7.0% were from Vietnam, 5.0% were from Sudan and 4.1% were from Afghanistan.
How long are people held in Immigration Detention?
At present, the average period of time for people held in detention facilities is 708 days.
In 2022, the average period of time was 689 days, in comparison with averages of 55 days in the United States of America and 14 days in Canada. There are currently 124 people who have been in Immigration detention longer than 5 years.
Australian law allows for indefinite immigration detention. In November 2023, the High Court of Australia ruled that it is unlawful and unconstitutional for the Australian government to detain people indefinitely in immigration detention. The legal challenge originated from a stateless Rohingya man, referred to by the pseudonym NZYQ, who had been detained in immigration detention after his visa was cancelled. In the case of NZYQ, the High Court unanimously found that a person must be released from detention when there was no real prospect of them being deported in the foreseeable future.
The decision has so far resulted in the release of around 140 people from held immigration detention facilities. In response, the Australian government has rushed legislation through parliament to impose strict conditions on the released detainees and will move to implement “a tough preventative detention regime”.
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Last updated 5 December 2023