tag:theconversation.com,2011:/africa/topics/detention-4762/articlesDetention – The Conversation2024-03-20T04:45:08Ztag:theconversation.com,2011:article/2261202024-03-20T04:45:08Z2024-03-20T04:45:08ZThe government is fighting a new High Court case on immigration detainees. What’s it about and what’s at stake?<p>The government will be on tenterhooks again next month when the High Court of Australia hears another case that could lead to the release of a further cohort of people currently in immigration detention. </p>
<p>Given the ongoing political fallout of the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">previous controversial</a> High Court case, the outcome of this one will be closely watched.</p>
<p>So why is this new case so significant, and how does it differ from the last one?</p>
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Read more:
<a href="https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226">What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system</a>
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<h2>What is the case about?</h2>
<p>The case is called <em>ASF17 v Commonwealth</em>. It concerns an <a href="https://www.hcourt.gov.au/assets/cases/07-Perth/p7-2024/ASF17-Cth-App.pdf">Iranian citizen</a> who has been held in immigration detention for ten years. He failed in his application for a protection visa and is therefore subject to an obligation that he be deported as soon as reasonably practicable. </p>
<p>However, he has hindered his deportation (or “frustrated” it, in legal terms) by refusing to meet with Iranian officials to secure the travel documents needed for his return to Iran. </p>
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<p>He says he has good reason not to want to be returned to Iran because he is bisexual, has converted to Christianity, is Kurdish and has opposed the mistreatment of women by the Iranian government. </p>
<p>He says he fears for his life if he is removed to Iran, but he is prepared to cooperate in his removal to any country other than Iran.</p>
<p>The Commonwealth has accepted there is no prospect of his removal to any country other than Iran. It has also accepted that he cannot be removed to Iran without his cooperation, as Iran does not accept involuntary removals. </p>
<p>So does this mean he’ll be released in accordance with the High Court’s <a href="https://theconversation.com/new-laws-to-deal-with-immigration-detainees-were-rushed-leading-to-legal-risks-219384">previous <em>NZYQ</em> case</a>? </p>
<h2>How is this different from the previous case?</h2>
<p>You might remember the <em>NZYQ</em> case from late last year. In it, the court found a stateless Rohingya refugee, who couldn’t secure a visa because of previous criminal convictions, <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">couldn’t be held</a> in indefinite detention. This was because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”. </p>
<p>The decision overturned a 2004 precedent and triggered the release of at least <a href="https://www.abc.net.au/news/2024-02-12/half-released-immigration-detainees-convicted-violent-offending/103455458">149 other detainees</a> in similar situations.</p>
<p>The Commonwealth has argued ASF17’s case falls into a different category, because whether there is a practical prospect of removal must be assessed on the basis that the detainee is cooperating. </p>
<p>When the case was first heard in the Federal Court, the Commonwealth argued that when assessing whether there is a practical prospect of deporting a detainee, delays caused by the detainee not cooperating shouldn’t be taken into account. This is regardless of whatever may be the reasons for his or her non-cooperation. </p>
<p>Justice Colvin, in the Federal Court, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/7.html">accepted</a> the Commonwealth’s argument. He pointed out that the reasons for refusal to cooperate, including fear of persecution on return to Iran, were matters separately dealt with during his application for a protection visa. </p>
<p>Once the detainee had reached the end of his appeals on this point, he was being held solely for the purpose of removal from Australia, so the reasons for his concerns could not be revisited. </p>
<p>Justice Colvin concluded that the assessment of whether there was a real prospect of his removal becoming practicable in the reasonably foreseeable future then had to be made on the basis of the detainee’s cooperation in taking relevant steps towards deportation. This was the case even if the detainee refused to act. </p>
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Read more:
<a href="https://theconversation.com/new-laws-to-deal-with-immigration-detainees-were-rushed-leading-to-legal-risks-219384">New laws to deal with immigration detainees were rushed, leading to legal risks</a>
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<h2>The appeal to the High Court</h2>
<p>ASF17 then appealed to the Full Federal Court, and the Commonwealth government successfully sought the removal of this case directly into the High Court. This is because the lower courts have not been acting consistently on this point. </p>
<p>For example, in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2023/1497.html"><em>AZC20 v Secretary, Department of Home Affairs (No 2)</em></a>, an Iranian detainee who had never been convicted of a crime and had been held in detention for ten years was ordered to be released, despite the fact he was refusing to cooperate with his removal to Iran (although he was prepared to cooperate with his removal to any other country). The Commonwealth therefore wants the High Court to resolve the uncertainty and give a clear decision.</p>
<p>Previously, in its <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/37.html"><em>NZYQ</em> judgment</a>, the High Court distinguished that case from cases in which the detainee seeks to frustrate attempts to deport them. </p>
<p>This justifies the Commonwealth’s approach of treating detainees who have frustrated their deportation as being in a different category. It still, however, leaves it open to the High Court to decide whether they should be released or remain in detention. </p>
<p>In the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/17.html">past</a>, the High Court has not been sympathetic to those who have sought to thwart their deportation by telling falsehoods about their identity, noting that the courts are disinclined to allow a party to take advantage of his or her own wrongful conduct. </p>
<p>But whether honest non-cooperation, as opposed to falsehoods, would be treated the same way remains to be seen.</p>
<h2>How many detainees will be affected?</h2>
<p>The decision in this case is likely to affect a wider cohort of people in immigration detention who cannot be deported because they have refused to cooperate. <a href="https://www.smh.com.au/politics/federal/the-unwanted-high-court-to-determine-the-fate-of-another-127-in-limbo-20240318-p5fdah.html">Some countries</a>, such as Iran, do not accept the involuntary return of their citizens, which means detainees can prevent their deportation to these countries by refusing to cooperate. </p>
<p>According to <a href="https://www.theguardian.com/australia-news/2024/mar/20/australia-asf17-immigration-detainees-high-court-challenge-more-than-170-could-be-freed">The Guardian</a>, a leaked government document estimated that about 170 people currently in detention could be affected, although the minister has refused to discuss numbers or the details of the case while it is before the courts.</p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<p>If the High Court were to decide that a person could prevent their deportation by refusing to cooperate and could use this to cause their release into the community, it would give detainees a great incentive to refuse cooperation in deportation matters. </p>
<p>The Commonwealth has strong arguments on its side, but as always it is a matter for the High Court ultimately to decide.</p><img src="https://counter.theconversation.com/content/226120/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received grants from the ARC and occasionally does consultancy work for governments, Parliaments and inter-governmental bodies. She is also a consultant with Gilbert + Tobin Lawyers, which does pro bono work for refugee claimants.</span></em></p>The government will head back to the High Court next month for another immigration case. If it loses, there could be wide-ranging consequences.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?</p>
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Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
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<h2>What are preventative detention laws?</h2>
<p>The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.</p>
<p>The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.</p>
<p>In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2190982023-12-03T11:30:43Z2023-12-03T11:30:43ZGovernment’s preventative detention for ex-detainees who pose serious risks set to pass this week<p>The government on Wednesday will introduce its legislation to enable preventative detention of former immigration detainees judged to pose a high risk of committing serious violent or sexual crimes. </p>
<p>The legislation will be brought into the Senate as an amendment to one of the earlier bills relating these people. </p>
<p>The House of Representatives will then deal with it on Thursday, before parliament rises for the year. </p>
<p>While there will be argy bargy about the detail, the Coalition is considered certain to pass the legislation, which is modelled on an existing law allowing preventative detention of those who are considered a terrorism risk. </p>
<p>The decision to allow a person to be detained would be up to a court. </p>
<p>The court would have to be satisfied “to a high degree of probability” that the person posed an “unacceptable risk of committing a serious violent or sexual offence” and that lesser measures would not deal with that risk.</p>
<p>The Immigration Minister would have to apply for a review of the order every 12 months. The maximum length of an order would be three years, but the minister could reapply for another order. </p>
<p>The legislation also provides for a court to grant a community safety supervision order, imposing restrictions on a person posing “an unacceptable risk of committing a serious violent or sexual offence”.</p>
<p>Clearly the legislation would apply to only a portion of the detainees. </p>
<p>More than 140 detainees have been released. Of the initial 92, 27 fell into the categories of “very serious violent offences, very serious crimes against children, very serious family or domestic violence or violent, sexual or exploitative offences”.</p>
<p>After the High Court found indefinite immigration detention to be unconstitutional the government rushed through legislation to enable it to monitor the ex-detainees, while it waited for the court to give its reasons for its judgement. The reasons have now been issued, and indicate room for re-detaining people. </p>
<p>As a second interim measure, last week the government introduced a bill to prevent paedophiles going near schools, and also preventing ex-detainees who had committed serious crimes contacting their former victims. The government’s new measures will now be grafted onto this bill which passed the lower house and is now before the Senate.</p>
<p>The opposition did not support that bill, leading Home Affairs Minister Clare O'Neil to accuse the opposition and its leader Peter Dutton of voting “to protect paedophiles over children”. She was backed up by Minister for Aged Care Anika Wells. </p>
<p>But Anthony Albanese avoided endorsing O'Neil’s words. </p>
<p>Agricultural Minister Murray Watt, appearing on Sky, on Sunday denied the ministers had gone too far. “I think that people like Clare O'Neil and Anika Wells are some of our strongest performers. They’re very capable, competent ministers, and all they’ve done is use language that […] Peter Dutton himself has used [in the past about Labor].</p><img src="https://counter.theconversation.com/content/219098/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New preventative detention legislation will be brought into the Senate as an amendment. The changes will allow the preventative detention of those who are considered a terrorist risk.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2174382023-11-10T07:14:08Z2023-11-10T07:14:08ZThe High Court has decided indefinite detention is unlawful. What happens now?<p>This week, the High Court of Australia <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the release of a Rohingya man from immigration detention where he had been for the last five and a half years. </p>
<p>Commentators and human rights groups have been <a href="https://x.com/KaldorCentre/status/1722171447702077881?s=20">celebrating</a> this decision, which indicates the court will overturn a 20-year-old precedent.</p>
<p>The court has stated it will release its decision at a later time. It is important to wait for that judgement to determine the full implications of the decision and how it may limit the government’s power to detain non-citizens. </p>
<p>But here’s a brief rundown on the background of the case and some considerations of what could happen next.</p>
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Read more:
<a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">'I have no rights': what happens to stateless people in Australia after the High Court's ruling?</a>
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<h2>What laws did the case focus on?</h2>
<p>The laws in question are in the Migration Act, which <a href="https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s189.html">states</a> a non-citizen who does not hold a visa must be detained. </p>
<p>Currently people in immigration detention do not have the right to have a court determine whether their detention is necessary, reasonable, and/or proportionate. These assessments are undertaken by departmental officials and the minister. </p>
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<p>The law considers detention mandatory, irrespective of the individual’s circumstances. </p>
<p>In the case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/37.html">Al-Kateb v Godwin</a>, the chief justice of the High Court described the need for detention:</p>
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<p>A person […] might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate.</p>
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<p>The detained person must remain so until granted a visa or is removed. </p>
<p>Removal, if it’s needed, must occur as soon as “reasonably practicable”. </p>
<p>Over the years, many cases have tested these laws, and until now, the High Court has upheld them.</p>
<p>The lack of time limits on detention, and the inability to challenge it, have made Australia an outlier internationally.</p>
<p>The laws have also been <a href="https://reliefweb.int/report/australia/new-un-report-torture-urges-changes-australian-refugee-policy#:%7E:text=The%20Committee%20noted%20a%20number,%2Dtreatment%20and%20suspicious%20deaths%E2%80%9D.">heavily criticised</a>, both domestically and globally. </p>
<p>Such has been the egregious nature of the system that the High Court allowed the UNSW Kaldor Centre for International Refugee Law and the Human Rights Law Centre to argue the <a href="https://www.kaldorcentre.unsw.edu.au/news/indefinite-immigration-detention-unlawful-high-court-rules">international human rights</a> dimensions of the case.</p>
<p>Despite this, the policy has had bipartisan political support for decades. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<h2>Who was at the centre of the case?</h2>
<p>The Rohingya refugee at the centre of the case is referred to as “NZYQ”. He’s around 30 years old.</p>
<p>As a Rohingya, he had <a href="https://www.hrw.org/news/2023/11/09/landmark-australian-ruling-rejects-indefinite-immigration-detention">not been able to</a> obtain citizenship of Myanmar and was stateless. </p>
<p>He had arrived in Australia by boat in 2012. He had been granted a temporary visa, but this was cancelled in 2015 after he committed <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">a criminal offence</a> and was sentenced to a term in prison. </p>
<p>Still unable to get a visa, he was transferred to immigration detention once he’d served his sentence. </p>
<p>Australia accepted the man could not be sent to Myanmar, and instead tried unsuccessfully to have a number of other countries take him via their refugee or humanitarian programs. </p>
<p>Having found there was no country he could be removed to in the “reasonably foreseeable future” and his visa refused, the man was facing the prospect of remaining in detention indefinitely. </p>
<p>In light of this, the High Court found his ongoing detention was unlawful and they ordered his immediate release from detention.</p>
<h2>Law that comes with a cost</h2>
<p>There is an increasing number of people in detention who remain there for long periods of time. Some are stateless, and others who can’t be returned to their home countries due to risk of persecution.</p>
<p>Over the past five years, the average length of detention has increased from <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2017.pdf%20to%20708%20dayshttps://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">445 days</a> to <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>. Some people have been detained for more than 10 years. </p>
<p>One of the many criticisms levelled at this system is that it’s extremely expensive.</p>
<p>Between 2020 and 2021, the <a href="https://www.refugeecouncil.org.au/detention-australia-statistics/10/">average cost</a> to the Australian taxpayer for one person in an immigration detention facility was $428,542.</p>
<p>That’s not to mention the significant physical and mental health toll on people.</p>
<p>There have been close to <a href="https://www.refugeecouncil.org.au/detention-australia-statistics/10/">3,000 incidents of self-harm</a>, real and threatened, in detention over the past five years.</p>
<h2>So what happens in the short term?</h2>
<p>As a first step, the government may be facing the prospect of releasing a number of people who have been detained for several years. </p>
<p>It is estimated there may be <a href="https://www.theguardian.com/australia-news/2023/nov/08/australia-high-court-indefinite-detention-ruling-government">92 people</a> impacted by the judgement. </p>
<p>The government has stated the Rohingya man in the case has been released <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">on “strict conditions”</a>, but we don’t know what sort of visa he might be on.</p>
<p>It is not clear what those conditions are, but legally, a person can be released from detention on a temporary “bridging visa”. </p>
<p>The Department of Home Affairs can impose conditions on a bridging visa which could include: </p>
<ul>
<li><p>where the person lives</p></li>
<li><p>reporting regularly to the Department of Home Affairs</p></li>
<li><p>that the person “not engage in criminal conduct”</p></li>
<li><p>that they comply with a specific “Code of Behaviour”.</p></li>
</ul>
<p>This, of course, should be accompanied by a range of psychological and social support services, which are currently <a href="https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/status-resolution-support-services">very limited</a>.</p>
<p>There will need to be consideration for better pathways to more visa certainty and permanent residency, especially for <a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">stateless people</a>.</p>
<h2>Legislative reform on the cards</h2>
<p>We need to wait for the judgement to determine what, if any, legislative reform may be needed, but the government will be considering a number of options. </p>
<p>We should use this opportunity to ensure our laws comply with our human rights obligations.</p>
<p>International standards specify that a person detained for immigration purposes must be brought before a judicial authority “promptly” and that their detention must be subject to “regular periodic reviews”. </p>
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<strong>
Read more:
<a href="https://theconversation.com/new-immigration-detention-bill-could-give-australia-a-fresh-chance-to-comply-with-international-law-188519">New immigration detention bill could give Australia a fresh chance to comply with international law</a>
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<p>There is a substantial <a href="https://www.kaldorcentre.unsw.edu.au/publication/immigration-detention-australia">body of evidence</a> demonstrating that hasn’t been the case for far too long.</p>
<p>A key legislative reform should be to make detention discretionary instead of mandatory. People should also have access to independent review of their detention.</p>
<p>There has been a wealth of <a href="https://www.aph.gov.au/binaries/house/committee/mig/detention/report/fullreport.pdf">inquiries</a>, <a href="https://idcoalition.org/cap/">submissions</a> and examples from overseas which the government could look to, for a start. </p>
<p>More will be revealed about this case in the coming weeks and months, but there are many things the government can start doing immediately to better balance this unfair and punitive system.</p><img src="https://counter.theconversation.com/content/217438/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previously received funding from the Australian Research Council and sitting fees from the Department of Home Affairs</span></em></p>This week, the High Court made an order which overturns the laws on which much of Australia’s immigration system is based. What happens to the law, and those most affected by it, now?Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173632023-11-10T00:18:22Z2023-11-10T00:18:22Z‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling?<figure><img src="https://images.theconversation.com/files/558737/original/file-20231109-17-q814h2.jpg?ixlib=rb-1.1.0&rect=21%2C50%2C4803%2C3168&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/stateless-word-dictionary-concept-1155404044">Shutterstock</a></span></figcaption></figure><p>The decision by the High Court of Australia this week <a href="https://www.abc.net.au/news/2023-11-08/indefinite-immigration-detention-ruled-unlawful-by-high-court/101569082">overturning the legality</a> of indefinite immigration detention marks a watershed moment in Australian legal history. </p>
<p>For almost two decades, stateless people have faced the prospect of spending their lives behind bars. </p>
<p>Now, a stateless <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">Rohingya refugee</a> has been released from detention.</p>
<p>With no “stateless” visa category or pathway to permanency, stateless people will continue to face a life of uncertainty in the Australia community, begging the question; what next?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/government-must-use-trauma-informed-approach-to-end-uncertainty-on-refugee-visa-applications-203758">Government must use trauma-informed approach to end uncertainty on refugee visa applications</a>
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<h2>Overturning decades of precedent</h2>
<p>This week the Australian High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the immediate release of the stateless refugee, known as “NZYQ”, from immigration detention.</p>
<p>He’d been held there for more than five years. </p>
<p>The Court found that because there was no real prospect of his removal from Australia “becoming practicable in the reasonably foreseeable future”, his detention was unlawful.</p>
<p>This decision is highly significant, overturning almost twenty years of legal precedent established in <a href="https://eresources.hcourt.gov.au/showCase/2004/HCA/37">2004.</a> </p>
<p>In that case, the High Court upheld the ability of the Australian government to detain people for an unlimited period. </p>
<p>That looked to be the fate of the man at the centre of this week’s case.</p>
<p>Having had his visa cancelled due to a <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">criminal conviction</a> and unable to be returned to Myanmar as a stateless refugee, he faced potentially being detained for the rest of his life.</p>
<p>Australia’s system of mandatory indefinite detention, a bipartisan policy introduced in 1992, is unique, even when compared with countries with similar legal traditions, such as the UK. </p>
<p>Available <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">government statistics</a> indicate there are currently over 1,000 people in immigration detention, 31 of whom are stateless.</p>
<p>The average length somebody is detained in Australia is a staggering <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>.</p>
<p>More than 100 people have been held for more than five years. </p>
<h2>What does is mean to be stateless?</h2>
<p>There is little understanding of statelessness in Australia, despite the fact it affects millions of people globally. </p>
<p>A stateless person is someone with no nationality. Legally speaking, they are recognised as “belonging” to no country in the world. </p>
<p>While the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/4460454/Statelessness_overview_factsheet_Feb_2023.pdf">causes of statelessness</a> vary, the dominant root cause is usually discrimination of one kind or another, including on the grounds of gender, race or religion.</p>
<p>The legal definition of statelessness does not do justice to the lived reality. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-migration-review-could-close-some-disability-discrimination-loopholes-but-not-for-people-already-waiting-or-refused-visas-215894">A migration review could close some disability discrimination loopholes – but not for people already waiting or refused visas</a>
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<p>Statelessness has the potential to impact almost every aspect of a person’s day-to-day life.</p>
<p>It can inhibit freedom of movement, access to education, housing, employment and medical care. </p>
<p>In Australia, these challenges are compounded by an often overwhelming sense of uncertainty about the future and the ever-present threat of detention.</p>
<p>The lived reality of statelessness is perhaps better understood in the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of Amir</a>, a stateless father living in Australia:</p>
<blockquote>
<p>Being stateless has been a huge source of sadness for me in my life. At times it has made me question my very existence and made me wonder why my parents chose to bring me into this world. I’ve never felt like I have a future. Wherever I’ve gone, I have no rights.</p>
</blockquote>
<p>We must never forget that behind legal judgements are the lives of real people. Many stateless families we work with in the <a href="https://law.unimelb.edu.au/centres/statelessness/engage/stateless-children-legal-clinic">Stateless Legal Clinic</a> have spent years in immigration detention, including Australian-born children who marked their <a href="https://firstdogonthemoon.com.au/cartoons/2014/11/12/baby-ferouzs-first-birthday/">first birthdays</a> behind the wire. </p>
<p>The ongoing health impacts of detention, especially on children, have been <a href="https://humanrights.gov.au/our-work/2-findings-and-recommendations#:%7E:text=The%20Commission%20makes%20the%20general,prolonged%20detention%20on%20the%20mental">well documented</a>.</p>
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<h2>A lack of legal protections means an uncertain future</h2>
<p>Along with the harmful effects of detention is the gap in legal protections stateless people experience in the Australian community. </p>
<p>Australia doesn’t have a distinct visa category for stateless people or pathway to permanent residency. </p>
<p>Many live with crippling prohibitions on their ability to build a secure life for themselves and their children. Access to some of the basic rights many of us take for granted – such as education - can be challenging. In the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of stateless mother Nur:</a></p>
<blockquote>
<p>Being stateless makes things challenging for us here. My children feel Australian – yet we are often reminded they are not […] our eldest child, Iman started kindergarten this year. It was so difficult trying to enrol him – they asked about his passport, his visa, his status. I felt embarrassed having to explain he has no passport – no identity. No certainty of his future.</p>
</blockquote>
<p>Australian law does not adequately protect the rights of stateless people in this country. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-the-governments-plan-to-overhaul-the-asylum-system-is-a-smart-use-of-resources-and-might-just-work-215061">Why the government's plan to overhaul the asylum system is a smart use of resources – and might just work</a>
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<p>This week’s High Court decision is a critical first step in protecting stateless people from being indefinitely deprived of their liberty. What happens next is just as important. </p>
<p>In the absence of being recognised as citizens of any country in the world, Australia can – and must – do more to offer stateless children and adults a life of certainty in this country.</p><img src="https://counter.theconversation.com/content/217363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Foster receives funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Katie Robertson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overturning of almost 20 years of legal precedent allowing indefinite detention is a watershed moment. But stateless people in Australia have few rights and little say over their futures.Katie Robertson, Director - Stateless Legal Clinic, The University of MelbourneMichelle Foster, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168962023-11-02T03:48:42Z2023-11-02T03:48:42ZIs a terrorist’s win in the High Court bad for national security? Not necessarily<p>Yesterday, Abdul Nacer Benbrika, perhaps Australia’s most notorious convicted terrorist, <a href="https://www.theguardian.com/australia-news/2023/nov/01/abdul-nacer-benbrika-australian-citizenship-convicted-terrorist-wins-high-court-battle">won in the High Court</a>. </p>
<p>A six-one majority of the court <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/33">struck down</a> a ministerial power to revoke the Australian citizenship of certain terrorist offenders. </p>
<p>Benbrika’s citizenship had been revoked as a result of his <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2009/21.html">conviction</a> in 2008 of a range of terrorism offences, including directing the activities of a terrorist organisation for which he was sentenced to 15 years in prison. </p>
<p>Following the court’s decision, Benbrika remains an Australian citizen. So will he go free? And what does this mean for national security?</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/should-new-australians-have-to-pass-an-english-test-to-become-citizens-175324">Should new Australians have to pass an English test to become citizens?</a>
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<h2>Unconstitutional punishment</h2>
<p>This was not the first time the High Court had stopped the minister for home affairs revoking the citizenship of someone involved in terrorism. </p>
<p>Delil Alexander was a dual citizen of Australia (by birth) and Turkey (by descent) when he entered Syria in 2013 with the terrorist organisation ISIS. </p>
<p>In 2021, the minister revoked Alexander’s Australian citizenship because Alexander had engaged in certain terrorist conduct which demonstrated he had “repudiated his allegiance to Australia”.</p>
<p>Revoking his citizenship was, the minister reasoned, in the public interest. </p>
<p>At that time, Alexander was in prison in Syria and could not be contacted by his family or lawyers. His sister, Berivan, challenged the citizenship-stripping law on his behalf and <a href="https://www.hcourt.gov.au/cases/case_s103-2021">won the case</a>. </p>
<p>In Benbrika’s case, the situation was a little different. </p>
<p>Unlike Alexander, Benbrika (a dual national with Algeria) had actually been convicted of terrorism offences, which gave the minister a basis on which to strip his Australian citizenship. </p>
<p>Yet the court’s reasons for striking down the citizenship-stripping powers were similar in the two cases. </p>
<p>First, the court acknowledged that loss of one’s citizenship is at least as serious as detention. </p>
<p>Second, the court interpreted the law as being designed to punish the person for their conduct. </p>
<p>Under the separation of powers, which the Constitution protects, imposing punishments for wrongdoing is generally the work of courts and should follow a criminal trial and finding of guilt. </p>
<p>In this case, the minister was essentially – and unconstitutionally – trying to go around the courts by punishing these individuals outside the criminal process. </p>
<h2>What now for Benbrika?</h2>
<p>The consequence of Alexander remaining an Australian citizen is that it remained Australia’s responsibility to, for instance, take steps to find out where he was, re-establish contact with him, and provide consular assistance. </p>
<p>Alexander may even need to be brought back to Australia where he would be dealt with under our own laws and justice system (it is, after all, a serious federal offence to join ISIS). </p>
<p>Benbrika, on the other hand, has served his sentence for terrorism offences and won his fight to maintain his Australian citizenship. </p>
<p>So will he walk free? Is it only a matter of time before he is radicalising more young people and inciting further hatred and violence?</p>
<p>Whatever lies ahead for Benbrika, it is unlikely to be any sense of freedom. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/as-new-aussie-citizenship-rules-kick-in-the-fair-go-finally-returns-to-trans-tasman-relations-208739">As new Aussie citizenship rules kick in, the ‘fair go’ finally returns to trans-Tasman relations</a>
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<p>Australia has more extensive counterterrorism law than anywhere else in the world. A <a href="https://theconversation.com/before-9-11-australia-had-no-counter-terrorism-laws-now-we-have-92-but-are-we-safer-166273">recent count</a> put the tally at almost 100 laws enacted since the 9/11 attacks in 2001.</p>
<p>Many of those laws tweak the usual rights given to people as they move through the criminal justice system. </p>
<p>This includes the option of post-sentence imprisonment – “continuing detention orders” – for those who are assessed to pose an unacceptable risk of committing national security offences. </p>
<p>Such an order can be made for up to three years and there are no limits on renewal. </p>
<p>Not only has Benbrika already been subject to those orders but, in 2021, he lodged an unsuccessful High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/4.html?context=0;query=benbrika;mask_path=au/cases/cth/HCA">challenge</a> to those laws. </p>
<p>For as long as Benbrika is assessed to pose an “unacceptable risk” to the community, he will remain in prison. </p>
<p>But what if he satisfies a court that his release no longer poses an unacceptable risk? </p>
<p>Under Victorian law, Benbrika could be subject to an extended “supervision order”, which can be made for up to 15 years (with a possibility of being renewed for a further 15 years). </p>
<p>On top of this are federal “control orders”. </p>
<p>This is the kind of order imposed on <a href="https://www.abc.net.au/news/2007-12-21/hicks-control-order-granted/994358">David Hicks</a> on his return from Guantanamo Bay, and on <a href="https://fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-marshall/marshall-j-20070906#:%7E:text=Issuing%20of%20the%20Control%20Order,on%20Mr%20Thomas'%20personal%20liberty.">Joseph “Jihad Jack” Thomas</a> after his acquittal for terrorism offences. </p>
<p>Control orders allow for an extremely wide range of restrictions and obligations to be imposed on a person if those conditions are “reasonably necessary, appropriate and adapted” to protecting the community from terrorism. </p>
<p>Control orders last for up to 12 months, but there are no limits on their renewal.</p>
<p>Under a supervision order or control order, Benbrika could be required to:</p>
<ul>
<li><p>stay at a certain address</p></li>
<li><p>be subject to curfews (even amounting to home detention) </p></li>
<li><p>wear a tracking device</p></li>
<li><p>not use the internet, a phone or other devices</p></li>
<li><p>not contact certain people or go to certain places </p></li>
<li><p>undertake education, counselling or drug testing </p></li>
<li><p>or any number of other restrictions or obligations deemed necessary for community protection. </p></li>
</ul>
<p>Breaching one of these orders is punishable by five years imprisonment. </p>
<h2>But wouldn’t it be better to deport him?</h2>
<p>There is a symbolic attraction to taking away the citizenship of someone who has acted in a way that shows no allegiance to – and even a violent disregard for – Australia and basic community values. </p>
<p>Indeed, the one judge who upheld the citizenship-stripping laws, Justice Simon Steward, did so on the basis that citizenship-stripping was not designed to punish. </p>
<p>Instead, he argued it was merely an acknowledgement that the person themselves had severed their ties to Australia.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-does-being-australian-mean-under-the-constitution-38889">What does 'being Australian' mean under the Constitution?</a>
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<p>A <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0010/2771452/11-Pillai-and-Williams.pdf">study</a> looking at counterterrorism citizenship-stripping in the United Kingdom, Canada and Australia found the laws were serving this symbolic role. </p>
<p>But symbolism is a thin shield for national security. </p>
<p>When it comes to actually protecting security, the evidence shows that citizenship-stripping comes up short. </p>
<p>People have been stripped of their citizenship and committed terrorist acts elsewhere. Khaled Sharrouf, Australia’s most notorious foreign fighter, is one such person. </p>
<p>In a globalised world, people stripped of citizenship can still serve a pivotal role in recruitment and radicalisation, especially on the internet. </p>
<p>Kept in Australia, as an Australian, the full weight of our vast security laws can be brought to bear on Benbrika. </p>
<p>Stripped of his citizenship, Benbrika would have been beyond the reach of those laws, and it would be naïve to think that simply making him not-Australian would negate the risks he may present.</p><img src="https://counter.theconversation.com/content/216896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Convicted terrorist Abdul Nacer Benbrika yesterday won the right to remain an Australian citizen. So will he go free? And what does this mean for national security?Rebecca Ananian-Welsh, Associate Professor, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2007762023-05-11T12:14:00Z2023-05-11T12:14:00ZImmigration policies don’t deter migrants from coming to the US – Title 42 and the border rules replacing it only make the process longer and more difficult<figure><img src="https://images.theconversation.com/files/518228/original/file-20230329-14-pf7xnc.jpg?ixlib=rb-1.1.0&rect=100%2C9%2C2895%2C2092&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Honduran migrants head for the United States in 2019.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/honduran-migrants-part-of-the-second-caravan-to-the-united-news-photo/1082946788?adppopup=true">Orlando Sierra/AFP via Getty Images</a></span></figcaption></figure><p>Politicians have been saying there’s an <a href="https://www.abcactionnews.com/news/in-depth/in-depth-why-many-experts-say-our-immigration-system-is-broken-and-what-is-being-done-to-fix-it">immigration crisis</a> at the border for decades and have been trying to fix it for nearly as long. The rules have changed many times over the years – and they are about to change again as a pandemic-era set of restrictions expires May 11, 2023.</p>
<p>Before the COVID-19 pandemic, immigration into the U.S. at the border with Mexico was governed by a group of federal immigration laws and regulations, <a href="https://www.govinfo.gov/content/pkg/USCODE-2011-title8/html/USCODE-2011-title8-chap12-subchapII-partII-sec1182.htm#:%7E:text=Any%20alien%20who%20at%20any,violation%20of%20law%20is%20inadmissible.">collectively known as Title 8</a>. These laws, among other things, set the terms for the rapid deportation of people who enter the country illegally or are not eligible for asylum.</p>
<p>In March 2020, after COVID-19 hit, President Donald Trump declared a national public health emergency. That triggered a more restrictive set of rules under a decades-old, little used set of public health regulations<a href="https://www.cnn.com/2023/05/09/politics/title-42-ending-whats-next-explainer-cec/index.html"> known as Title 42</a>. These regulations empowered Customs and Border Protection agents to both quickly expel migrants who entered the U.S. illegally and deny asylum seekers the right to enter the country as a way to stop the spread of a COVID 19.</p>
<p>As the public health emergency expires on May 11, the rules for prospective immigrants are changing again. The Title 8 rules are coming back into effect – and new measures from the Biden administration also will be in place. The administration’s goal is to stem the flow of an expected <a href="https://www.nytimes.com/2023/05/07/us/title-42-border-migrants.html?searchResultPosition=2">13,000 migrants daily</a>. But these new measures may exclude refugees facing real danger.</p>
<p>One new measure, for example, <a href="https://abc7.com/biden-administration-mexico-border-title-42/13230234/">will deny asylum</a> to people who arrive at the U.S. southern border without first applying for asylum online or in the country they passed through. And <a href="https://www.state.gov/u-s-government-announces-sweeping-new-actions-to-manage-regional-migration/">under Title 8</a>, people who enter the country illegally could face <a href="https://www.cbsnews.com/news/what-is-title-42-policy-immigration-what-happens-ending-expiration/">a five-year ban</a> from the U.S.</p>
<p>From my work as a <a href="https://globalmigration.ucdavis.edu/people/robert-irwin">scholar of migration studies</a>, I believe the new set of rules may make some of the most vulnerable migrants even more vulnerable to economic and political exploitation and violence by delaying or denying them the protection of the U.S. under federal laws and international rules about asylum.</p>
<h2>Delaying immigration and asylum</h2>
<p>Research shows that the <a href="https://www.vox.com/policy-and-politics/22451177/biden-border-immigration-enforcement-detention-deportation">United States’ immigration policies have never deterred migrants</a> from <a href="https://www.pewresearch.org/fact-tank/2023/01/13/monthly-encounters-with-migrants-at-u-s-mexico-border-remain-near-record-highs/">coming to the country</a>; they have only made the immigration process longer and more difficult.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Adults, some of them wearing face masks, and children stand outdoors waiting for U.S. Border Patrol officers to pick them up." src="https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518242/original/file-20230329-22-219670.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Honduran immigrants wait for the U.S. Border Patrol after crossing the Rio Grande River from Mexico into Mission, Texas, on March 24, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/immigrants-from-honduras-stand-and-wait-for-the-border-news-photo/1231998345?adppopup=true">Michael Robinson Chavez/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<p>In fact, <a href="https://trac.syr.edu/reports/705/">asylum court backlogs</a> have increased more than sevenfold over the past 10 years. There are more than 750,000 cases pending, with average wait times for a court date currently running over four years.</p>
<p>These figures do not account for the time it may take for migrants to get from their home countries to the Mexico-U.S. border, where they may also have to wait months or years to be allowed to cross. Parallel to immigration court backlogs are <a href="https://www.nytimes.com/2023/03/28/us/mexico-border-migrants-shelters.html">backlogs at the border</a>, where the slow trickle of admissions to the U.S. of new asylum seekers, permitted now only via a glitchy smartphone app, have failed for years to keep up with new arrivals, seriously challenging Mexico’s capacity for housing them.</p>
<h2>Humanizing deportation</h2>
<p>Since 2016, I have coordinated a digital storytelling project called “<a href="http://humanizandoladeportacion.ucdavis.edu/en/">Humanizing Deportation</a>,” which has published personal narratives in audiovisual form from over 350 migrants. It is <a href="https://doi.org/10.1093/acrefore/9780199366439.013.855">the world’s largest qualitative database</a> on the human consequences of contemporary U.S. border and migration control policies.</p>
<p>Our research shows that as migration deterrence policies have multiplied and intensified over these past two presidential administrations, migration stories have become more complex and migrant journeys more arduous. One story from our archive shows how several of these policies have played out for a migrant family. </p>
<p>Our project is unable to verify all details of migrants’ stories, and what you read here is based on one family’s recollection of events.</p>
<p>A migrant from Honduras discusses the hardships, including deportation and kidnapping, he and his family faced as they traveled to the U.S. seeking asylum.</p>
<h2>Deportations, childbirth and a kidnapping</h2>
<p>A <a href="http://humanizandoladeportacion.ucdavis.edu/en/2018/11/21/124-from-inside-the-caravan/">Honduran migrant who wishes to remain anonymous</a> left his homeland initially in a <a href="https://www.nytimes.com/2018/10/18/world/americas/trump-migrant-caravan.html">migrant caravan</a> in 2018. After crossing into the U.S., the migrant says that despite his insistence that he was fearful of being sent back and his refusal to sign a voluntary removal form, Border Patrol officers shouted obscenities at him and physically <a href="http://humanizandoladeportacion.ucdavis.edu/en/2019/05/28/166-after-the-caravan/">forced him to place a thumb print on the document</a>, then deported him to Honduras.</p>
<p>The migrant set out again soon after that, this time with his pregnant wife and young son. Before getting far, they were detained by Mexican immigration authorities and later deported. But they left again, getting as far as Huixtla, Chiapas, in Mexico, where they had to stop so that <a href="http://humanizandoladeportacion.ucdavis.edu/en/2019/07/05/124c-migrating-while-pregnant/">his wife could give birth</a>.</p>
<p>The family settled for a time in Monterrey, Nuevo León, but struggled to make a living there. They decided to pay a smuggler to accompany the wife and son to the Mexico-U.S. border, where in the summer of 2019 they crossed and were picked up by Border Patrol. Officers allowed the two to initiate their asylum process through the <a href="https://www.dhs.gov/archive/migrant-protection-protocols">Migrant Protection Protocols program</a>, a U.S. government program that returns migrants who arrived in the United States from Mexico by land back to Mexico while U.S. immigration proceedings are underway. Under its guidelines, they were sent back to Mexico to await a court date.</p>
<p>Human rights <a href="https://www.hrw.org/tag/remain-mexico#:%7E:text=%E2%80%9CRemain%20in%20Mexico%E2%80%9D%20sends%20asylum,asylum%20in%20the%20United%20States.">advocates criticized Migrant Protection Protocols because of dangers</a>, such as extortion, kidnapping and rape that migrants face in Mexico. In this case, immediately after mother and son returned, <a href="http://humanizandoladeportacion.ucdavis.edu/en/2022/02/23/124e-now-on-the-other-side/">they were kidnapped</a>. Without the money to pay the ransom, they had to turn to friends and family, including the woman’s mother, who sold her house in Honduras to get them released.</p>
<p>Back in Monterrey, the husband, afraid to try applying for asylum after being deported but determined to reach the U.S., paid a smuggler to get him to Tennessee.</p>
<p>Meanwhile, his wife didn’t wish to stay in Monterrey. “I was really afraid – I didn’t go out because I felt they might kidnap me again,” she told us. So she retreated to southern Mexico with her son and baby daughter.</p>
<p>Working as an auto mechanic, the husband was able to earn enough money in Tennessee to pay most of what they owed the smugglers and their family.</p>
<p>Then, in 2021, when the Biden administration allowed migrants who had abandoned their Migrant Protection Protocols asylum applications to resume the process – but in the U.S. – the mother and children joined the husband in Tennessee. The following year, <a href="http://humanizandoladeportacion.ucdavis.edu/en/2022/02/23/124d-now-on-the-other-side/">they moved to California</a>, where as an immigrant family they feel more welcome than in Tennessee. Although the wife is still waiting for a court date, the family is hopeful that she and the children will be granted asylum. But she was thrilled to give birth recently to a baby boy in California.</p>
<p>“Because it’s more peaceful,” says the father, who is afraid to join his wife’s asylum claim because of his previous deportation. “We’ve heard that it’s where the immigrant community is most protected.”</p>
<p><a href="https://www.latimes.com/politics/story/2023-03-02/biden-asylum-proposal-trump">Numerous policies over the past seven years</a> have been enacted to deter migration, but many people have migrated anyway. They have been forced to navigate long, difficult, dangerous journeys and often traumatic migration processes that have endangered and complicated their lives.</p><img src="https://counter.theconversation.com/content/200776/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert McKee Irwin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>US immigration policies have not deterred migration, but they have made the process longer and more difficult for migrants.Robert McKee Irwin, Deputy Director, Global Migration Center, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2032532023-04-16T07:18:36Z2023-04-16T07:18:36ZJuvenile offenders in Ghana aren’t prepared for rejoining society - how the system is failing them<figure><img src="https://images.theconversation.com/files/520498/original/file-20230412-20-ggiujw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Juvenile offenders face stigma once released</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>Globally, about <a href="https://www.penalreform.org/issues/children/key-facts/">one million children</a> are held in police custody annually; 410,000 of them are held in detention and remand centres. On any day, it is <a href="https://link.springer.com/chapter/10.1007/978-3-030-56227-4_11">estimated</a>, remand homes around the world hold about 160,000 to 250,000 children. </p>
<p>Time in prison can have lasting impacts on the lives of young offenders. It can affect social, emotional and other areas of development. </p>
<p>The <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child">Convention on the Rights of Children</a> requires that incarceration should be a measure of last resort. The <a href="https://au.int/sites/default/files/treaties/36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf">African Charter on the Rights and Welfare of the Child</a> also provides guidelines; <a href="https://au.int/sites/default/files/treaties/36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf#page=17">article 17</a> specifically deals with juvenile justice.</p>
<p>In Ghana, correctional centres are intended to help juvenile offenders gain vocational skills to help them become productive citizens after serving their sentence periods. They also receive religious and moral guidance. But there’s little follow-up of what happens to them.</p>
<p>As a social work researcher and volunteer in Accra, Ghana, I constantly interact with the senior correctional centre and remand home. I became worried about the number of male teenagers I encountered there and the sometimes seemingly trivial offences that had got them into trouble. Ghana as at April 2023 had 254 male juvenile offenders in <a href="https://ghanaprisons.gov.gh/about-us/statistics.cits">detention</a>. I wondered about what the future held for these teenagers once they rejoined society. </p>
<p>The literature says very little about the experiences of juvenile offenders in Ghana after their release. I therefore conducted a <a href="https://www.tandfonline.com/doi/full/10.1080/10509674.2023.2182864">study</a> to explore this. I wanted to know more about the challenges they encountered and what had contributed to these challenges. </p>
<p>Knowledge about their experiences may be useful in designing policies and
effective strategies to mitigate the harmful impacts of imprisonment on young people’s lives.</p>
<p>In my view the results of my study highlight the need for a more effective and holistic approach to juvenile justice reform – one that considers the long-term impact of detention on young offenders. Ghana needs a more rigorous and comprehensive reintegration programme. And existing policies must be put into practice.</p>
<h2>Life after detention</h2>
<p>I interviewed 12 young men who had completed their sentence at Ghana’s senior correctional centre. I wanted to understand, in a qualitative way, the varied challenges they faced post-release and how that affected their lives. </p>
<p>The age range of participants at the time of the interview was between 19 and 28 years (average 22). All of them had entered the correctional centre as juveniles (some as young as 15) and exited as adults. They served an average of two years at the correctional centre.</p>
<p>Eight participants received skills training and education while at the centre – skills like general electrical, ceramics, carpentry and tailoring. The other four attended school while at the correctional centre.</p>
<p>Six participants had been charged with defilement, three with stealing, two with assault and one with unlawful entry. </p>
<p>One participant had a diploma, six had either started or completed junior high school, and five had either started or completed senior high school.</p>
<p>The study participants told me that they faced stigma after their release. Constant reminders of their offending history from friends and family led to feelings of shame, guilt and isolation. Indirectly, the confidence of these youths was challenged. They felt people saw them as beyond redemption and unsuitable for society. This feeling affected their social relationships with friends. One said:</p>
<blockquote>
<p>People are saying many things about me. I don’t have friends anymore in the area. So, though I live with my parents comfortably, I feel very sad and alone in that area.</p>
</blockquote>
<p>The participants had given up on continuing their education. Some felt it was better to do something else. Others could not afford schooling in financial terms. </p>
<p>The correctional centre didn’t offer formal transitional programmes and support. This is one of the major threats to the successful reintegration of released juvenile offenders into society. Ghana has a Justice for Children <a href="https://www.mogcsp.gov.gh/mdocs-posts/justice-for-children-policy/">policy</a>, which outlines strategies such as the use of district probation officers and social workers to reintegrate young offenders, but it lacks proper implementation. </p>
<p>When released, the young men in my study returned to a background of poverty. This seemed to be what was contributing to the initial offence committed. Poverty limited the kind of help a family could provide for them. And they were unable to get work because employers were not willing to give them a chance.</p>
<p>For those who had acquired certain skills at the senior correctional centre, financial limitations made it hard to start a business. One said:</p>
<blockquote>
<p>I have plans to open my shop to start an electrical business but I have got no help. It has been very difficult and disturbing.</p>
</blockquote>
<p>It meant they were unable to break the cycle of poverty, making reintegration even more difficult.</p>
<h2>A call to do better</h2>
<p>The successful reintegration of released juvenile offenders into society requires the implementation of formal transitional programmes and support such as Ghana’s Justice for Children Policy. </p>
<p>Comprehensive strategies for education, employment and financial support must be put in place to ensure that these youths can establish meaningful lives after release. They need opportunities to start businesses or gain vocational skills that allow them to break free from poverty cycles. </p>
<p>Justice should not end with detention. Reintegrating ex-offenders should be an essential part of restorative justice efforts aimed at reducing recidivism and increasing public safety and social cohesion.</p><img src="https://counter.theconversation.com/content/203253/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ebenezer Bosomprah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana needs a more effective approach to juvenile justice reform that considers the long-term impact of detention on youth offenders.Ebenezer Bosomprah, PhD Candidate, Institute of African Studies, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1940012022-11-09T16:02:49Z2022-11-09T16:02:49ZManston holding facility: does the UK’s treatment of asylum seekers violate the law?<p>A woman held at the Manston holding facility in Kent is <a href="https://www.independent.co.uk/news/uk/home-news/manston-immigration-centre-legal-action-home-secretary-b2216948.html">taking legal action</a> against Home Secretary Suella Braverman. The asylum seeker claims that she was held unlawfully in “egregiously defective conditions” at the centre. Her case is supported by the organisation Detention Action, and another case is being put forward by the charity <a href="https://www.lbc.co.uk/news/charities-threaten-to-sue-government-over-egregiously-defective-migrant-conditio/">Bail for Immigration Detainees</a>.</p>
<p>Braverman has denied <a href="https://www.theguardian.com/uk-news/2022/oct/31/suella-braverman-says-never-ignored-legal-advice-housing-asylum-seekers">ignoring legal advice</a> about conditions at the centre, which is meant for a maximum of 1,600 people but was holding more than 4,000 and has <a href="https://www.theguardian.com/science/2022/oct/20/diphtheria-outbreak-confirmed-at-asylum-seeker-centre-in-kent">had outbreaks of norovirus, scabies and diphtheria</a>. Braverman has been accused of not making alternative arrangements, such as hotel bookings, to accommodate the additional people.</p>
<p>The Manston facility has become a flashpoint for criticism of the government’s current and past policies, and treatment of asylum seekers. But the situation at Manston is not just dismal, it is a violation of legal requirements in international law, domestic law and the government’s own policies.</p>
<p>Under the Immigration Act 2016, an asylum seeker is normally given <a href="https://www.gov.uk/government/publications/offender-management/immigration-bail-accessible-version">immigration bail</a> which permits them to live in the UK until their case is determined. During this period, people are supposed to be accommodated in suitable conditions, <a href="https://england.shelter.org.uk/professional_resources/legal/housing_options/asylum_seekers_accommodation_options/accommodation_for_asylum_seekers">provided by</a> local authorities, registered social landlords (housing associations) and private landlords. They might be briefly kept in a short-term holding facility (such as Manston) before they are transferred to asylum accommodation, but they are not supposed to be in immigration detention. </p>
<p>UK law does not dictate a maximum time limit that people can be detained.
However, detention is only supposed to be used when deportation is imminent, for example if someone’s asylum claim was rejected. The <a href="https://freemovement.org.uk/what-are-the-hardial-singh-principles/">Hardial Singh principles</a>, which stem from a <a href="http://www.bailii.org/ew/cases/EWHC/QB/1983/1.html">1983 detention case</a>, limit the government’s detention powers. Still, people have been found to be detained for weeks, months or even years.</p>
<h2>Short-term holding</h2>
<p>The people at Manston are not meant to be in detention at all. Government <a href="https://www.legislation.gov.uk/uksi/2018/409">rules</a> state that short-term facilities should only be used for transfers or short holding for a <a href="https://www.legislation.gov.uk/uksi/2018/409/note">maximum of seven days</a>. Manston is intended to accommodate people for <a href="https://www.gov.uk/government/news/new-secure-site-for-processing-illegal-migrants">a few days</a>, but some people have been held there for weeks. </p>
<p>The legal action against the Home Office asks Braverman to declare that anyone held at the centre for longer than 24 hours has been unlawfully detained. This is presumably because after 24 hours, people are supposed to be given <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721583/STHF-rules-operational-guidance-v1.0-EXT.pdf">reasons</a> in writing for their detention. </p>
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<strong>
Read more:
<a href="https://theconversation.com/the-uks-asylum-system-is-in-crisis-but-the-government-not-refugees-is-to-blame-193670">The UK's asylum system is in crisis, but the government – not refugees – is to blame</a>
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<p>Additionally, the <a href="https://www.echr.coe.int/documents/convention_eng.pdf">European Convention on Human Rights</a>, part of UK law under the Human Rights Act 1998, says that detention must be proportionate to the objective – such as imminent deportation. In Manston, there are particular concerns about the holding of children, including unaccompanied children, for whom there is a special duty of care under <a href="https://www.legislation.gov.uk/ukpga/2009/11/notes/division/5/4/3">the Borders, Citizenship and Immigration Act 2009</a>. </p>
<p>Deprivation of liberty must be pre-authorised by a specific provision of law in order to not amount to false imprisonment. In <a href="https://www.supremecourt.uk/cases/uksc-2018-0197.html">a 2019 case</a>, the Supreme Court found the Home Office liable to pay asylum seekers damages for false imprisonment when they were unlawfully detained for periods between five and 16 weeks. In <a href="https://www.supremecourt.uk/cases/uksc-2018-0140.html">another case</a> where an asylum seeker was unlawfully deported, his detention prior to deportation was also held to be unlawful. </p>
<h2>How did we get here?</h2>
<p>The chief inspector of prisons <a href="https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/short-term-holding-facilities-at-western-jet-foil-lydd-airport-and-manston/">reported on</a> conditions at Manston and two other short-term holding facilities in August. While acknowledging progress had been made since earlier inspections, the report described “significant concerns” about the conditions and length of holding time at the centres.</p>
<p>People are being held for too long, in poor conditions and in large numbers because there is no space to accommodate asylum seekers in regular asylum accommodation. This is because of the massive <a href="https://www.refugeecouncil.org.uk/wp-content/uploads/2021/07/Living-in-Limbo-A-decade-of-delays-in-the-UK-Asylum-system-July-2021.pdf">asylum case backlog</a>, which has been years in the making.</p>
<p>The <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1092487/E02726679_ICIBI_Tug_Haven_and_Western_Jet_Foil_Web_Accessible.pdf">chief inspector of borders and immigration</a> also recently published a report on the government’s inability to handle the increase in small boat crossings, citing the Home Office’s “refusal to transition from an emergency response to what has rapidly become steady state, or business as usual.”</p>
<h2>Small boat arrivals</h2>
<p>Braverman has controversially referred to people arriving on boats <a href="https://www.bbc.co.uk/news/uk-politics-63475511">as an “invasion”</a>. The <a href="https://www.unhcr.org/uk/3b66c2aa10">1951 Refugee Convention</a> recognises that people fleeing persecution may have to use irregular means in order to escape and claim asylum in another country. At present there is no legal way to travel to the UK for the specific purpose of seeking asylum. The people who risk death during sea crossings are more likely to be fleeing horrific life situations than simply seeking better opportunities. Whether or not they have an asylum claim needs to be assessed through the proper channels.</p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/2022/36/contents">Nationality and Borders Act 2022</a> complicates this by linking the support available for asylum seekers with their mode of entry. A refugee who is <a href="https://www.legislation.gov.uk/ukpga/2022/36/section/12/enacted#:%7E:text=12Differential%20treatment%20of%20refugees&text=(a)a%20refugee%20is%20a,is%20a%20Group%202%20refugee">considered to have entered unlawfully</a> may be restricted in their ability to get long term secure status and may have no recourse to public funds. Their family members may be prevented from joining them or remaining with them in the UK. </p>
<p>The government claims this is to prevent people from being trafficked via unsafe modes of <a href="https://www.parallelparliament.co.uk/bills/2021-22/nationalityandborders/debates">transportation</a>. Indeed, there are reports in the media about many channel crossers being <a href="https://www.theguardian.com/commentisfree/2022/nov/04/albanians-scapegoats-britain-failing-ideological-project-invaders?CMP=share_btn_tw">trafficked from Albania</a> rather than being asylum seekers. If that is true, and presumably not just from Albania, the focus should be on preventing trafficking and on consequences for traffickers – not <a href="https://www.theguardian.com/global-development/2020/oct/06/home-secretarys-dangerous-rhetoric-putting-lawyers-at-risk">improperly detaining</a> those who have been trafficked.</p>
<p>The <a href="https://www.theguardian.com/global-development/2020/oct/06/home-secretarys-dangerous-rhetoric-putting-lawyers-at-risk">legal liabilities</a> stemming from improper use of detention powers should not be a reason for <a href="https://www.bbc.co.uk/news/explainers-61782866">offshoring asylum processes</a> to countries like Rwanda. The focus should be on making the process fair and efficient here. Sending people far away only makes their plight less visible than when they are detained in facilities like Manston.</p><img src="https://counter.theconversation.com/content/194001/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Devyani Prabhat received funding from ESRC in the past to research British Citizenship. This piece is not connected to that research. </span></em></p>UK law says that detention should only be used when deportation is imminent.Devyani Prabhat, Professor in Law, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1885192022-08-11T06:32:14Z2022-08-11T06:32:14ZNew immigration detention bill could give Australia a fresh chance to comply with international law<figure><img src="https://images.theconversation.com/files/478650/original/file-20220811-19-vr0mgb.jpg?ixlib=rb-1.1.0&rect=13%2C6%2C4457%2C2875&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">GettyImages</span> </figcaption></figure><p>Last week, independent MP Andrew Wilkie reintroduced to federal parliament the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6888">Ending Indefinite and Arbitrary Immigration Detention Bill 2022</a>. This bill gives Australia the chance to bring its immigration detention regime in line with basic international law requirements for the first time since 1992. </p>
<p>Wilkie’s bill presents a timely opportunity for the new federal government to reform a regime that leading legal and human rights organisations have called “<a href="https://www.kaldorcentre.unsw.edu.au/news/human-rights-groups-call-end-arbitrary-and-indefinite-detention">inhumane, unnecessary, and unlawful</a>”.</p>
<h2>Australia’s human rights commitment</h2>
<p>Australia has committed to uphold human rights and protect refugees, including committing to not arbitrarily or indefinitely detain adults or children. Despite this, under Australia’s current mandatory detention regime, non-citizens without a valid visa <a href="https://austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s189.html">must be detained</a> as a first resort for potentially indefinite periods and without access to review by a court. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/nauru-nightmare-immigration-policy-and-australias-concentration-camp-12071">Nauru nightmare: immigration policy and Australia's 'concentration camp'</a>
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</em>
</p>
<hr>
<p>Australia’s commitments under international law are not enforceable under Australian law unless they are implemented through legislation. This means that in the absence of legislation that fully protects the right to liberty, the Australian High Court has consistently held that indefinite immigration detention is lawful under Australian law. </p>
<h2>International criticism</h2>
<p>The UN has repeatedly condemned Australia’s treatment of asylum seekers and refugees as contrary to Australia’s international obligations and “<a href="https://www.ohchr.org/en/statements/2018/09/39th-session-human-rights-council?LangID=E&NewsID=23518">an affront to the protection of human rights</a>”. This includes statements and decisions from: </p>
<ul>
<li><p>UN High Commissioner for Human Rights Michelle Bachelet in <a href="https://www.ohchr.org/en/statements/2018/09/39th-session-human-rights-council?LangID=E&NewsID=23518">2018</a></p></li>
<li><p>the UN Special Rapporteur on the human rights of migrants, François Crépeau, in <a href="https://reliefweb.int/report/australia/report-special-rapporteur-human-rights-migrants-his-mission-australia-and-regional">2017</a></p></li>
<li><p>the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, in <a href="https://static.guim.co.uk/ni/1425873116713/Mendez-report.pdf">2015</a> and <a href="https://reliefweb.int/sites/reliefweb.int/files/resources/G1709891.pdf">2017</a> </p></li>
<li><p>UN High Commissioner for Refugees Filippo Grandi in <a href="https://www.unhcr.org/en-au/news/press/2017/7/597217484/unhcr-chief-filippo-grandi-calls-australia-end-harmful-practice-offshore.html">2017</a></p></li>
<li><p>The UN Human Rights Committee in <a href="https://uploads.guim.co.uk/2016/05/17/CCPR-C-116-D-2233-2013-English-cln-auv_(1).pdf">2013</a>.</p></li>
</ul>
<p>International criticisms have largely focused on Australia’s failure to respect the rights of individuals to not be detained arbitrarily or indefinitely; subjected to cruel, inhuman or degrading treatment; or returned to a place where they will face a real risk of harm. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/another-day-another-report-what-more-do-we-need-to-know-about-the-harms-of-immigration-detention-2840">Another day, another report: what more do we need to know about the harms of immigration detention?</a>
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</em>
</p>
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<p>Despite widespread <a href="https://andrewwilkie.org/immoral-and-unlawful-treatment-of-asylum-seekers-must-end/">condemnation</a> of Australia’s system of mandatory and indefinite detention, <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-30-april-2022.pdf">over 1400 people</a> remain in onshore immigration detention facilities today. A further <a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/">217 people</a> remain on Nauru and Manus. </p>
<p>In April 2022, the average period of time people were held in immigration detention facilities in Australia was <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-30-april-2022.pdf">726 days</a>. Of those in onshore detention, 136 have been detained for more than five years. </p>
<h2>“Detention without charge or guilt”</h2>
<p>Wilkie’s bill proposes abolishing the existing system of mandatory detention. Under the bill, detention of non-citizens without valid visas could only be ordered where it is necessary and proportionate to the circumstances. This would require an individual assessment.</p>
<p>Detention would be authorised in Australia only (not offshore) for certain purposes, and only as a measure of last resort after all alternatives have been considered. Adults could only be detained for a maximum of three months and children for seven days. While extensions may be necessary in certain circumstances, detention would be subject to independent oversight and judicial review by the courts.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478651/original/file-20220811-19-37tbw1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Independent MP Andrew Wilkie re-introduced the bill in Parliament last week.</span>
<span class="attribution"><span class="source">AAP Image</span></span>
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</figure>
<p>When introducing the bill, <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F25920%2F0014%22">Wilkie argued</a> this legislation was urgently needed as </p>
<blockquote>
<p>we face the bizarre and outrageous situation in this country where someone, in some circumstances, can be detained indefinitely, without charge and without having been found guilty of anything.</p>
</blockquote>
<p>He described this as a punitive arrangement that is immoral and shows “a terrible indifference and arrogance to international law”.</p>
<p>In seconding the bill, independent MP <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F25920%2F0015%22">Kylea Tink said</a> “Australia’s immigration regime is unique in the world. It is uniquely cruel.” Tink also noted Wilkie’s point that the regime came with a vast financial and human toll, costing Australian taxpayers <a href="https://www.canberratimes.com.au/story/7842132/call-to-end-immoral-refugee-detention/">between $360,000 - $460,000 per year</a> to hold a person in immigration detention in Australia. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1553929435585212416"}"></div></p>
<p>Independent MP Monique Ryan recognised that</p>
<blockquote>
<p>Australia’s immigration detention regime causes severe and widespread mental and physical health impacts on people seeking refuge.</p>
</blockquote>
<p>Australia’s negative human rights record also affects its ability to <a href="https://www.internationalaffairs.org.au/australianoutlook/australias-credibility-on-human-rights-issues/">hold other countries to account</a> for human rights violations. China accused Australia of <a href="https://www.news.com.au/finance/economy/australian-economy/china-labels-australia-racist-after-un-review-finds-human-rights-failings/news-story/48a7e111eb7456807a20a4b7b0d7a39b">human rights hypocrisy</a> after it <a href="https://www.abc.net.au/news/2020-07-01/australia-statement-condemn-china-over-hong-kong-uyghur-abuses/12409268">criticised</a> China’s repression of the Uyghur ethnic minority. And China is certainly <a href="https://reliefweb.int/report/australia/un-member-states-challenge-australia-s-refugee-and-asylum-policies">not alone</a> in its criticisms. </p>
<p>While <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Ending_Indefinite_Arbitrary_Immigration_Detention_Bill_2021_Submission_405.pdf">legislation alone is not enough</a>, it could provide a significant first step in bringing Australia’s immigration detention regime in line with its human rights obligations. </p>
<p>Both major political parties in Australia have historically supported onshore and offshore mandatory detention of non-citizens. </p>
<p>However, with the current make-up of the parliament and a new government <a href="https://www.smh.com.au/politics/federal/prime-minister-elect-anthony-albanese-s-victory-speech-in-full-20220522-p5andv.html">committed</a> to uniting Australians around “our shared values of fairness and opportunity” and “kindness to those in need”, this is an opportunity for Australia to demonstrate a renewed commitment to international law and the fundamental principles on which the UN system is based.</p><img src="https://counter.theconversation.com/content/188519/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cleo Hansen-Lohrey receives funding under an Australian Government Research Training Scholarship for her PhD studies.
She previously work for the Department of Immigration, and as a humanitarian observer and advocate in immigration detention facilities. </span></em></p><p class="fine-print"><em><span>Tamara Wood does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The re-introduction of an immigration detention bill could bring Australia into compliance with international human rights law.Cleo Hansen-Lohrey, PhD Candidate, Faculty of Law, University of TasmaniaTamara Wood, Senior Lecturer, Faculty of Law, University of Tasmania; Visiting Fellow, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1673372021-09-07T04:28:36Z2021-09-07T04:28:36ZDespite deportation and detention attempts, could New Zealand have done more to prevent Friday’s terror attack?<figure><img src="https://images.theconversation.com/files/419702/original/file-20210907-21-19pvdjl.jpg?ixlib=rb-1.1.0&rect=0%2C81%2C4945%2C3197&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Fiona Goodall/Getty Images</span></span></figcaption></figure><p>New Zealand is fast-tracking <a href="https://www.rnz.co.nz/news/political/450833/cabinet-ministers-to-consider-whether-law-changes-needed-following-lynnmall-terror-attack">changes to counter-terrorism laws</a> in response to Friday’s terror attack, but several other laws are relevant in this case and further investigations must ask why they weren’t used to detain the attacker. </p>
<p>The terrorist was shot dead within moments of beginning a potentially lethal attack at an Auckland supermarket because he was considered dangerous enough to be under 24-hour police surveillance. A complex chain of prosecutions meant intensive monitoring was the only option police had to protect the public. </p>
<p>Efforts to ensure public safety included bringing criminal charges, which resulted in pre-trial detention. But preventive detention was not available, despite the terrorist setting, and this suggests a gap in the sentencing regime. </p>
<p>Under New Zealand criminal law, a person can be prosecuted for conspiring to commit an offence, but this requires at least two people to agree. For someone acting alone, planning an attack is not enough. This is a gap in the <a href="https://www.legislation.govt.nz/act/public/2002/0034/latest/DLM151491.html">Terrorism Suppression Act 2002</a> and New Zealand will likely follow other countries, including Australia, where preparing or planning a terrorist act constitutes an offence.</p>
<p>Apart from criminal law, there are two other areas of law that can be used to detain people considered dangerous: mental health law and, given the terrorist’s refugee status, immigration law. </p>
<h2>Sequence of prosecutions leads to supervision sentence</h2>
<p>The terrorist was prosecuted for various offences and spent a significant amount of time in detention, pending trial. </p>
<p>In 2017, having been arrested trying to leave New Zealand, nine charges were laid, including one of sharing ISIS-related material via Facebook, in breach of the <a href="https://www.legislation.govt.nz/act/public/1993/0094/55.0/DLM312895.html">Films, Videos and Publications Classification Act 1993</a>, and another of having an offensive weapon. He was denied bail because he was considered at risk of further offending through sharing problematic material and carrying out violence.</p>
<p>Part of this case turned on how bad the shared material was. The censor concluded it was not “objectionable”, which is the worst kind, but “restricted”. This meant the charges relating to his social media activities carried at most three months’ imprisonment each. </p>
<figure class="align-center ">
<img alt="Prime Minister Jacinda Ardern and Police Commissioner Andrew Coster during a media conference." src="https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419703/original/file-20210907-19-ilaal5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Prime Minister Jacinda Ardern and Police Commissioner Andrew Coster during a media conference. The terrorist was under police surveillance and known to authorities as a supporter of the Islamic State.</span>
<span class="attribution"><span class="source">Mark Mitchell - Pool/Getty Images</span></span>
</figcaption>
</figure>
<p>He was released on bail after pleading guilty to sharing ISIS propaganda because he had already spent 13 months in custody and the offences would not carry a sentence of that length for a first offender. But before being sentenced, he was arrested again in August 2018 and remanded in custody pre-trial. </p>
<p>The new charges covered further offences relating to problematic material. This time, it was possession of “objectionable” material, which carries a maximum sentence of ten years. There were also two new charges relating to offensive weapons, and an earlier charge was reinstated. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/new-zealand-needs-to-go-beyond-fast-tracking-counter-terrorism-laws-to-reduce-the-risk-of-future-attacks-167338">New Zealand needs to go beyond fast-tracking counter-terrorism laws to reduce the risk of future attacks</a>
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<p>The trigger for the second arrest was his purchase of another hunting knife. The prosecution argued this was a terrorist act because it showed he was planning to carry out an attack, but the courts rejected this. He was convicted of two offences relating to objectionable material, but sentenced to intensive supervision rather than a prison term.</p>
<p>This was because the Sentencing Act 2002 says the maximum sentence should be imposed only for examples of the worst offending, and the prosecution accepted he had already served more time in prison, awaiting trial, than would be imposed. </p>
<h2>Gaps in other laws</h2>
<p>There are two other sentencing matters to note. For several decades, New Zealand courts have been able to impose preventive detention, which is essentially a life sentence. But this power only arises in relation to a list of sexual or violent offences. It does not include the offending for which the terrorist was sentenced. This is a gap that requires further investigation.</p>
<p>New Zealand also allows for preventive detention under the <a href="https://www.legislation.govt.nz/act/public/2014/0068/latest/DLM4751015.html">Public Safety (Public Protection Orders) Act 2014</a>, but this requires a past conviction for a serious sexual or violent offence. Again, this case was outside this legislation. </p>
<p>Many reports about the attacker refer to his paranoia. This raises the question of detention under the <a href="https://www.legislation.govt.nz/act/public/1992/0046/latest/DLM262176.html">Mental Health (Compulsory Assessment and Treatment) Act 1992</a>. This requires an “abnormal state of mind” and a “serious danger” to his own or others’ health and safety. </p>
<p>There was a psychiatric report for the 2018 sentencing decision, which records various symptoms of mental illness, but it does not appear there was an updated report in 2021. Further investigations should ask whether this was an avenue that should have been used.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/new-zealands-latest-terror-attack-shows-why-isis-is-harder-to-defeat-online-than-on-the-battlefield-167336">New Zealand's latest terror attack shows why ISIS is harder to defeat online than on the battlefield</a>
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<p>Finally, there is the immigration context. Several steps were taken to remove the terrorist’s refugee status, as a precursor to deportation from New Zealand. Refugee status can be lost on several grounds, including proof that it was obtained by fraud. </p>
<p>Deportation of refugees is also possible on national security grounds, but it cannot be to a country where the person would be placed at undue risk unless they have committed a very serious offence that reveals a danger to the community. For someone who has come from and can only be returned to a country where they face such a risk, deportation is very difficult. </p>
<p>These are all decisions that require very careful consideration. The Immigration Act 2009 has very significant limitations on detention, particularly for those who have <a href="https://www.rnz.co.nz/news/national/450892/opportunity-to-deport-lynnmall-terrorist-missed-if-considered-security-threat-lawyer">refugee status</a>. </p>
<p>Mental health legislation may have been more relevant in this case and the fact it wasn’t used calls for an investigation. As it was, the only power available was for the police to carry out a surveillance operation, complete with armed officers. This suggests they viewed the man as a clear and present danger.</p><img src="https://counter.theconversation.com/content/167337/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The perpetrator of Friday’s terror attack in Auckland spent time in prison for sharing objectionable ISIS material, but under New Zealand’s criminal law he couldn’t be detained for planning an attack.Kris Gledhill, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1622892021-06-08T04:29:27Z2021-06-08T04:29:27ZAs a young child is evacuated from detention, could this see the Biloela Tamil family go free?<figure><img src="https://images.theconversation.com/files/404991/original/file-20210608-23-51ixqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A boy holds a poster in support of the Biloela Tamil family at a 2019 rally. </span> <span class="attribution"><span class="source">Joel Carrett/AAP</span></span></figcaption></figure><p>On Monday, the image of a small girl in a hospital bed, crying as her big sister gives her a kiss flooded social media feeds.</p>
<p>The girls are Tharunicaa and Kopika Murugappan, the <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-march-2021.pdf">only two children</a> in immigration detention in Australia. </p>
<p>The photo was released by advocates as three-year-old Tharunicaa was medically evacuated to Perth on Monday evening. She had reportedly been <a href="https://www.sbs.com.au/news/youngest-daughter-of-biloela-tamil-family-medically-evacuated-from-christmas-island">unwell for ten days</a> with high temperatures, vomiting and diarrhoea, as her family called for more medical help.</p>
<p>On Tuesday, family supporter Angela Fredericks <a href="https://7news.com.au/politics/biloela-family-must-be-resettled-mps-c-3043111">told reporters</a>,</p>
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<p>It looks like they have said she has untreated pneumonia that led to a blood infection.</p>
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<p>While the <a href="https://twitter.com/joshgnosis/status/1402087429692030976?s=20">government denies</a> there were treatment delays, it has once again raised the plight of the Tamil family, who have been detained since 2018.</p>
<h2>Why are the family on Christmas Island?</h2>
<p>Tharunicaa, her parents Priya and Nades and her sister, Kopika, have been in detention on Christmas Island since August 2019.</p>
<p>This followed a Department of Home Affairs attempt to deport the family from a detention centre in Melbourne to Sri Lanka. The deportation was interrupted mid-flight <a href="https://www.abc.net.au/news/2019-08-31/tamil-asylum-seeker-family-taken-to-christmas-island-lawyer-says/11467312">after an urgent injunction</a> from the Federal Court. The plane was forced to land in Darwin, and the family was taken to immigration detention on Christmas Island, pending the outcome of their court appeal.</p>
<p>This came after the family had initially settled in the Queensland town of Biloela. Residents welcomed the family and have been actively campaigning for them to come “<a href="https://www.abc.net.au/news/2021-02-17/tamils-priya-and-nades-murugappan-asylum-seekers/13160708">home to Bilo</a>”. </p>
<h2>Where is their legal fight up to?</h2>
<p>The family has been engaged in legal appeals since 2012. Tharunicaa’s father and mother are both Sri Lankan nationals who arrived in Australia by boat in 2012 and 2013 respectively. </p>
<p>As they arrived without visas, they are considered in law to be “unlawful maritime arrivals.” Although Tharunicaa and six-year-old Kopika were born in Australia, they are also “unlawful maritime arrivals”. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-time-to-give-visas-to-the-biloela-tamil-family-and-other-asylum-seekers-stuck-in-the-system-155354">It's time to give visas to the Biloela Tamil family and other asylum seekers stuck in the system</a>
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</p>
<hr>
<p>Both parents applied for visas claiming they would be persecuted if they returned to Sri Lanka. Kopika was included in their application. But they <a href="https://theconversation.com/how-the-biloela-tamil-family-deportation-case-highlights-the-failures-of-our-refugee-system-123685">were refused</a> and appeals to tribunals, courts and the immigration minister were not successful.</p>
<p>Former home affairs minister Peter Dutton <a href="https://www.sbs.com.au/news/using-every-trick-peter-dutton-accuses-detained-biloela-family-of-preventing-deportation">repeatedly said</a> the family is not owed protection. They are part of a caseload who had their claims for refugee status determined under a “fast track” process. The Australian Human Rights Commission found significant issues with the “fast track” process and <a href="https://humanrights.gov.au/about/news/commissioners-call-compassionate-approach-tamil-family">has called for a compassionate</a> response to this family. </p>
<h2>Tharunicaa</h2>
<p>However, the family’s applications did not include Tharunicaa. </p>
<p>Current legal action centres around the obligations of the government to consider whether she can apply for a visa in Australia. As Tharunicaa is an “unlawful maritime arrival” she cannot apply for a visa unless the Home Affairs Minister (Andrews) personally intervenes. </p>
<p>Lawyers argue she has a strong claim for protection based on a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2021/12.html">range of factors</a> including: the extensive media coverage of the family, the family’s Tamil ethnicity and their “purported” connections to the Liberation Tigers of Tamil Eelam (Tamil Tigers). </p>
<figure class="align-center ">
<img alt="Protesters hold signs in support of the Biloela Tamil family." src="https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=534&fit=crop&dpr=1 754w, https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=534&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/404988/original/file-20210608-135198-3nyrsc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=534&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">There have been ongoing protests in support of the family, calling for them to stay in Australia.</span>
<span class="attribution"><span class="source">Julian Smith/AAP</span></span>
</figcaption>
</figure>
<p>In April 2020, <a href="https://theconversation.com/explainer-what-does-the-federal-court-decision-on-the-tamil-asylum-seeker-family-mean-136504">Federal Court Justice Mark Moshinsky ruled</a> Tharunicaa had not given “procedural fairness” when her September 2018 request for permission to apply for a protection visa was rejected. That decision was <a href="https://theconversation.com/its-time-to-give-visas-to-the-biloela-tamil-family-and-other-asylum-seekers-stuck-in-the-system-155354">upheld</a> by the Full Court of the Federal Court in February. But further complicating matters, the court also found the immigration minister did not have an obligation to allow her to apply for a visa. </p>
<p>The ongoing litigation means the family will not be removed from Australia any time soon. But it is not clear whether the family or the government will take the next step and go to the High Court.</p>
<h2>What are the ongoing health dangers for the family?</h2>
<p>According to <a href="https://www.abc.net.au/radio/programs/am/daughter-of-asylum-seekers-medically-evacuated/13377886">media reports</a>, Tharunicaa had been unwell for ten days and did not get hospital access until this week, despite her families’ requests. As <a href="https://twitter.com/HometoBilo/status/1401788959982710784?s=20">Priya said</a> in a statement</p>
<blockquote>
<p>She has been sick for many days, it took a long time for her to get to the hospital.</p>
</blockquote>
<p>On Tuesday, a spokesperson for the Department of Home Affairs <a href="https://twitter.com/joshgnosis/status/1402087429692030976?s=20">denied</a> there had been any treatment delays. </p>
<blockquote>
<p>The minor has been receiving medical treatment and daily monitoring on Christmas Island consistent with medical advice. This has included an IHMS general practitioner and the Christmas Island Hospital.</p>
<p>As soon as the ABF was advised by the treating medical practitioners that the minor required medical treatment in Western Australia, the minor was transferred to a hospital in Western Australia.</p>
<p>The Australian Border Force strongly denies any allegations of inaction or mistreatment of individuals in its care.</p>
</blockquote>
<p>Health professionals have <a href="https://www.theguardian.com/world/2013/dec/21/christmas-island-delays-in-medical-transfers-life-threatening-say-doctors">long warned</a> of the difficulties of placing vulnerable people in remote locations such as Christmas Island. While primary care is available, there is poorer access to specialist and complex services. </p>
<p>In 2018, a Queensland coroner <a href="https://www.theguardian.com/australia-news/2018/jul/30/death-asylum-seeker-hamid-kehazaei-preventable-coroner-says">found delays</a> in diagnosing and removing Iranian asylum seeker Hamid Kehazaei from Manus Island directly contributed to his death from septicaemia. </p>
<p>Tharunicaa has come to Perth with her mother, while her her father and sister have been left on Christmas Island. Last year, Priya <a href="https://www.abc.net.au/news/2020-07-30/tamil-mother-flown-back-to-christmas-island-detention/12506818">was brought to Perth</a> for treatment of an abdominal condition and had to leave the family behind. </p>
<p>This is a grave concern. There is a <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8090905/">substantial body of evidence</a> regarding child trauma to suggest that forced involuntary separation from family will have lasting mental health effects. The splitting up of the family will almost certainly compound existing trauma. Children are particularly vulnerable. </p>
<h2>What can Karen Andrews do?</h2>
<p>Andrews, as the senior minister responsible, is under increasing <a href="https://thenewdaily.com.au/news/national/2021/06/08/biloela-family-evacuation-karen-andrews-petition/">public pressure </a> to do more for the family. </p>
<p>Dutton has previously said the <a href="https://www.sbs.com.au/news/scott-morrison-says-exception-for-tamil-family-an-invitation-to-people-smugglers">reason the family was detained on Christmas Island</a> and not the mainland was that it would allow them to be flown back to Sri Lanka without protesters putting Border Force officers in a “difficult position.” </p>
<figure class="align-center ">
<img alt="Minister for Home Affairs Karen Andrews in the cabinet room." src="https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/404987/original/file-20210608-21-a9ad40.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Karen Andrews was appointed Minister for Home Affairs in March.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<p>Due to their status as “unlawful maritime arrivals,” only Andrews or Immigration Minister Alex Hawke have the power to allow them to live in the community. This can either be on Christmas Island or on the mainland on bridging visas or in community detention. Andrews <a href="https://minister.homeaffairs.gov.au/KarenAndrews/Pages/interview-fran-kelly-abc-05052021.aspx">recently said</a> she was taking advice on whether she would allow them to live in the community on Christmas Island.</p>
<p>On Tuesday she added the government was “investigating a range of resettlement options”. </p>
<h2>The ‘public interest’</h2>
<p>The minister can grant any detainee a visa if they consider it to be in the “<a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s195a.html">public interest</a>” to do so. </p>
<p>The published guidelines on the exercise of this power states Andrews can grant a visa if a person has particular needs that cannot be properly cared for in a secured detention facility. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/will-new-home-affairs-minister-karen-andrews-bring-a-more-compassionate-approach-158065">Will new Home Affairs Minister Karen Andrews bring a more compassionate approach?</a>
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</p>
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<p>In 2013, we were involved in a case with then immigration minister, Scott Morrison. He intervened to release a woman with intellectual disabilities into the community with her family, stating that <a href="https://www.theguardian.com/world/2013/dec/23/morrison-advised-to-move-intellectually-disabled-asylum-seeker-into-community">this was necessary</a> due to her immediate mental health and welfare needs. </p>
<p>The health and welfare of Tharunicaa — at the very least — provides a clear reason to release the family from detention.</p><img src="https://counter.theconversation.com/content/162289/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previously received sitting fees from the Department of Home Affairs.</span></em></p><p class="fine-print"><em><span>Nicholas Procter has previously received grant funding and sitting fees from the Department of Home Affairs.
This article is part of a series on asylum seeker policy supported by a grant from the Broadley Trust.</span></em></p>Three-year-old Tharunicaa Murugappan’s hospitalisation has once again raised the plight of her family, who have been detained since 2018.Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityNicholas Procter, Professor and Chair: Mental Health Nursing, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1575832021-03-30T09:35:26Z2021-03-30T09:35:26ZNew Zealanders have a right to be angry when Australia deports a 15-year-old<figure><img src="https://images.theconversation.com/files/391628/original/file-20210325-23-1oinedk.jpg?ixlib=rb-1.1.0&rect=668%2C0%2C3256%2C1754&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/Chris Tefme</span></span></figcaption></figure><p>Recent <a href="https://www.stuff.co.nz/national/politics/300253182/kiwi-teenager-first-minor-to-be-deported-to-new-zealand-from-australia">reports</a> about the deportation of a 15-year-old from Australia to New Zealand have reignited a <a href="https://www.theguardian.com/australia-news/2021/mar/18/deportation-of-a-minor-how-a-corrosive-policy-sank-cosy-relations-between-australia-and-new-zealand">dispute</a> between the two countries about the proper management of offenders who have been born overseas. </p>
<p>The reports came at the time Australia’s former Home Affairs Minister Peter Dutton described the program of deporting non-citizens with a criminal conviction as “<a href="https://www.theguardian.com/australia-news/2021/mar/15/minor-deported-to-new-zealand-under-australian-program-peter-dutton-described-as-taking-the-trash-out">taking the trash out</a>”.</p>
<p>It later <a href="https://www.stuff.co.nz/national/politics/124620409/australia-deported-detained-15yearold-to-new-zealand-at-his-request">emerged</a> the Department of Home Affairs said the youth had requested deportation, although it added he would have been removed anyway. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1371586033796620290"}"></div></p>
<h2>The character test</h2>
<p>For some years we have researched the experiences of Kiwis deported from Australia under the now infamous provisions of the <a href="https://www.legislation.gov.au/Details/C2020C00333">Australian Migration Act</a>. These provisions authorise the relevant minister to order a deportation on “character” grounds, defined in the legislation.</p>
<p>We <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">explained before</a> that the principal provision authorising the deportations is <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s501.html">section 501 of the Act</a>. That is why the deportees often refer to themselves as “501s”.</p>
<p>There is an even more slippery provision in the Act, <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s116.html">section 116</a>. Under that provision, the minister can deport a person if he or she regards them as someone who would or might be a risk to the health, safety or good order of the Australian community or a segment of the community. </p>
<p>We return to the risk assessment exercise below. What is clear is that these deportations have torn families apart. Imagine arriving in a country with a few hundred dollars, lacking knowledge of the complexities of navigating the systems you are forced to engage with just to survive. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1373738724777811971"}"></div></p>
<h2>Feeling overwhelmed</h2>
<p>Through our <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">studies</a> we encountered adults who have experienced this. When they arrive in a new country, with new rules, new systems, many reported feeling overwhelmed, leading some to experience homelessness, serious mental health breakdowns and for some, suicide.</p>
<p>Unsurprisingly, adults deported to a country where they may have no family, no attachments and no contacts will struggle psychologically, emotionally and financially.</p>
<p>Many of them have lived in Australia for several years, and many arrived in Australia as babies. New Zealand is not their home.</p>
<p>Imagine how much worse this would be for children cut off from their home, their family, friends and the only life they have ever known. How are children expected to manage their way through systems that have crushed the spirit of their adult counterparts?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">Why New Zealanders are feeling the hard edge of Australia's deportation policy</a>
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</em>
</p>
<hr>
<h2>No risk assessment</h2>
<p>Our <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">research</a> found many of the people detained under Australian immigration legislation were removed from the Australian state they were living in prior to detention and deportation.</p>
<p>This meant they were deprived access to family life (a human right) even before they were deported. Many are advised that instead of languishing in detention they can appeal their deportation once they are in New Zealand, but this can be very expensive and, practically, is very difficult to do. </p>
<p>As we have also <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">previously observed</a>, there is no indication that the risk assessment implicit in section 116 has been conducted by professionals (such as forensic psychologists) who are properly qualified in assessing risk.</p>
<p>Instead, the deportation of people on character grounds is said to be proven by the fact of prior conviction. The corrective or even redemptive effect of imprisonment is ignored.</p>
<p>It turns out that “paying your debt to society” is not complete once you have left an Australian prison if you have foreign citizenship.</p>
<p>In various <a href="https://minister.homeaffairs.gov.au/peterdutton/Pages/Visa-cancellations-for-serious-crimes.aspx">media releases</a> and <a href="https://minister.homeaffairs.gov.au/peterdutton/Pages/2017/nterview-with-triple-m-hot-breakfast.aspx">interviews</a>, Peter Dutton has indicated sections 116 and 501 are important to ensure Australia is safe from people who have committed murder or rape.</p>
<p>But they only made up 8% of <a href="https://www.homeaffairs.gov.au/research-and-statistics/statistics/visa-statistics/visa-cancellation">visa cancellations</a> in 1 July 2019 to 30 June 2020. The majority were drug (23%) and assault (17%) offences.</p>
<h2>Will they re-offend?</h2>
<p>A cursory glance at the <a href="https://www.aic.gov.au/publications/tandi/tandi530">research</a> shows recidivism rates are not uniform across offenders.</p>
<p>There is a vast body of research demonstrating the risk of reoffending can be objectively measured using techniques developed by forensic psychologists over many decades.</p>
<p>Yet this scientific work is routinely ignored and instead people are being deported on the basis they will continue criminal activity. </p>
<p>Broadly, these deportations reflect the growth of actuarial justice: the classification and management of groups of people on the basis of their presumed danger.</p>
<p>The risk presented by an individual is not researched or even analysed, it is simply removed.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/overhaul-of-nz-womens-prison-system-highlights-the-risk-and-doubt-surrounding-use-of-force-on-inmates-156848">Overhaul of NZ women's prison system highlights the risk and doubt surrounding use of force on inmates</a>
</strong>
</em>
</p>
<hr>
<p>There is ample evidence of the harm these deportations produce, and limited evidence or risk of recidivism in allowing people who have paid their debt to society to stay in Australia.</p>
<p>We are instead risking serious and lasting damage to our dear relationship with our friends in New Zealand.</p>
<p>UK researchers Bill Hebenton and Toby Seddon <a href="https://academic.oup.com/bjc/article-abstract/49/3/343/350202" title="From Dangerousness to Precaution: Managing Sexual and Violent Offenders in an Insecure and Uncertain Age">observed in 2009</a> that “the limitless pursuit of security can end up subverting security and justice in deeply damaging ways”.</p>
<p>This seems like a pretty good example of this phenomenon.</p><img src="https://counter.theconversation.com/content/157583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Deportations of non-citizens living in Australia not only tear families apart, they ignore the fact a person has already paid for their crime.Patrick Keyzer, Dean of Law, Australian Catholic UniversityIan Coyle, Adjunct Professor, School of Psychology and Public Health, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1460162020-09-15T07:09:39Z2020-09-15T07:09:39ZWith our borders shut, this is the ideal time to overhaul our asylum seeker policies<figure><img src="https://images.theconversation.com/files/358051/original/file-20200915-16-1s0fe2v.jpg?ixlib=rb-1.1.0&rect=97%2C59%2C4351%2C3513&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Darren England/AAP</span></span></figcaption></figure><p>It is virtually impossible for anyone to travel to Australia at the moment due to COVID-19 restrictions — let alone those seeking asylum. But even before the pandemic, it was very difficult for asylum seekers to make their way here.</p>
<p>With our borders completely shut, this is an opportune time to reflect on what our asylum seeker policy could look like in a post-pandemic world. </p>
<p>Completely closing our borders to those in need of protection is neither sustainable nor defensible as long-term policy. Australia cannot expect other countries to step up and provide protection while we turn our backs to those in need.</p>
<h2>Our current system is arbitrary and ad hoc</h2>
<p>The major political parties have made it clear they do not want to see asylum seekers coming to Australia by boats again. But it is hypocritical to take such a position without providing alternative safe pathways for asylum seekers to get here.</p>
<p>One such pathway is air travel. Before the pandemic, it was possible for people who qualified for tourist, student or other types of visas to fly to Australia and subsequently apply for protection.</p>
<p>But those coming by plane typically faced pre-screening and were often denied boarding – precisely because they fit the profile of someone who might claim asylum. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/FG62PR6prYs?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
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<p>At Australian airports, border officials also use a highly discretionary system to identify and cancel the visas of potential asylum seekers before even considering their protection claims. This places these individuals at serious risk of refoulement to persecution or other serious harm. </p>
<p>This process has resulted in refugees being handcuffed and detained, simply for raising a protection claim in the airport. Some are only detained briefly and promptly placed on a flight home, while others spend months or years in immigration detention while their claims are assessed. </p>
<p>These policies not only prioritise removal or visa cancellation over protection, but actually serve as a disincentive for people to apply for protection at the airport. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=432&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=432&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=432&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=543&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=543&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358053/original/file-20200915-24-1xl6n0a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=543&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">It’s been seven years since Australia started transferring asylum seekers who arrive by boat to offshore detention facilities.</span>
<span class="attribution"><span class="source">Darren England/AAP</span></span>
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<h2>Ensuring access to protection</h2>
<p>With COVID-19, we have a rare opportunity for a policy reset. Maintaining the integrity of the system is important, and we do not dispute the need to have systems in place to fairly and efficiently distinguish between those who need protection and those who do not. </p>
<p>The problem is the discretionary nature of the present system has given rise to an arbitrary approach that places too much power in the hands of border enforcement officials with no background or training in identifying people in need of protection. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-refugees-succeed-in-visa-reviews-new-research-reveals-the-factors-that-matter-131763">How refugees succeed in visa reviews: new research reveals the factors that matter</a>
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<p>In our new <a href="https://www.kaldorcentre.unsw.edu.au/sites/default/files/Policy_Brief_9_Airports.pdf">policy brief</a> for UNSW’s Kaldor Centre for International Refugee Law, we make several recommendations for how to improve the system.</p>
<p>First, we argue people’s visas should not be cancelled while they are in immigration clearance solely because they seek to lodge a protection claim in Australia. </p>
<p>This a breach of the <a href="https://www.unhcr.org/en-au/1951-refugee-convention.html">UN Refugee Convention</a>, which prohibits penalising asylum seekers for “irregular entry or presence” in a country where they are looking for protection. It also goes against the principles of non-discrimination in international human rights law. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358055/original/file-20200915-20-1qprenj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The current process for evaluating asylum claims at airports is arbitrary and unfairly harsh.</span>
<span class="attribution"><span class="source">BRENDAN ESPOSITO/AAP</span></span>
</figcaption>
</figure>
<p>We also argue Australia should pass new legislation to improve screening procedures for asylum seekers at airports, including these changes:</p>
<ul>
<li><p>applicants should be interviewed by a trained official from the humanitarian program section of the Department of Home Affairs.</p></li>
<li><p>the threshold for referring applicants to the full asylum procedures should be set low. Only those who are clearly not refugees or whose claims are clearly fraudulent should be screened out at the airport.</p></li>
<li><p>applicants should have access to legal advice, competent interpreters and
officials from UNHCR during both the preliminary decision and review stages. Asylum seekers who raise a protection claim at the airport should be informed of this right and given help to seek such assistance.</p></li>
<li><p>detention should only be used as a last resort. If it is required, it should be for the shortest time necessary, proportionate and subject to regular independent review.</p></li>
<li><p>applicants should not be removed from Australia until their protection claims have been finally determined, including any available judicial review.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/refugees-need-protection-from-coronavirus-too-and-must-be-released-136961">Refugees need protection from coronavirus too, and must be released</a>
</strong>
</em>
</p>
<hr>
<h2>Better tracking of people being turned away</h2>
<p>In addition to these changes to the screening process, it’s imperative airlines are not fined for carrying passengers who ultimately receive protection in Australia.</p>
<p>And the Department of Home Affairs needs to improve its data collection practices to start recording reasons for visa cancellations — both within and outside Australia — as well as outcomes of all screening decisions.</p>
<p>This should include establishing a method for recording all protection claims made at or before immigration clearance, and recording all removals of travellers “screened out” after making a protection claim.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/people-are-crying-and-begging-the-human-cost-of-forced-relocations-in-immigration-detention-132193">'People are crying and begging': the human cost of forced relocations in immigration detention</a>
</strong>
</em>
</p>
<hr>
<p>The government <a href="https://theconversation.com/we-dont-know-how-many-asylum-seekers-are-turned-away-at-australian-airports-111344">has conceded</a> it does not accurately collect such data. This information is critical to assessing the extent to which Australia is complying with its domestic and international obligations.</p>
<p>Australia cannot permanently keep its borders shut to asylum seekers. It’s not only inhumane, but it also goes against our obligations under international refugee and human rights law. When travel to Australia resumes, we need to prioritise protection over deflection and removal.</p><img src="https://counter.theconversation.com/content/146016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Ghezelbash is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project.</span></em></p><p class="fine-print"><em><span>Asher Hirsch is a Senior Policy Officer with the Refugee Council of Australia.</span></em></p><p class="fine-print"><em><span>Regina Jefferies is an affiliate of the Kaldor Centre for International Refugee Law. </span></em></p>Denying protection to asylum seekers is neither sustainable nor defensible as long-term policy. Here are ways to make the screening process at airports more just when the borders do reopen.Daniel Ghezelbash, Associate Professor, Macquarie UniversityAsher Hirsch, Sessional Lecturer and PhD Candidate, Monash UniversityRegina Jefferies, Affiliate, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1452992020-09-01T05:58:03Z2020-09-01T05:58:03ZBanning mobile phones in immigration detention would make an inhumane system even crueler<figure><img src="https://images.theconversation.com/files/355663/original/file-20200831-24-1aqcnv7.jpg?ixlib=rb-1.1.0&rect=420%2C24%2C3999%2C3579&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Michael Dodge/AAP</span></span></figcaption></figure><p>Mobile phones are <a href="https://humanrights.gov.au/about/news/blanket-ban-mobile-phones-would-be-unacceptable">a lifeline</a> for those in immigration detention. But if the government has its way, this thread will soon be cut. </p>
<p>A <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6559">proposed bill</a> would allow the minister to deem mobile phones and other internet-capable devices “prohibited items”. It would also grant staff new powers to search detainees without a warrant and allow strip searches and detector dogs within the centres. </p>
<p>Detainees’ friends and family members would also be targeted via expanded powers to screen and search visitors. </p>
<p>The bill is expected to be voted on in parliament this week. The crucial vote will likely be in the Senate, where the government is <a href="https://www.theguardian.com/australia-news/live/2020/sep/01/australia-coronavirus-live-update-china-tensions-parliament-nsw-victoria-border-qld-covid-19-latest-news?CMP=share_btn_tw&page=with:block-5f4d93778f088598bc536925#block-5f4d93778f088598bc536925">trying to sway</a> key vote Jacqui Lambie to its side.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1300590049382133765"}"></div></p>
<p>The <a href="https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6559_ems_b6612e12-dac0-411a-9055-a22c4d714941/upload_pdf/737794.pdf;fileType=application%2Fpdf">purported purpose</a> of the bill is </p>
<blockquote>
<p>to ensure that the department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility. </p>
</blockquote>
<p>The government <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fdf9bb27b-ec32-4383-84c6-058df197388f%2F0017%22">claims</a> some detainees are using mobile devices to organise criminal activities, and intimidate staff and other detainees. </p>
<p>Yet, the greatest risk to detainees and their loved ones comes not from mobile phones, but from the isolation and trauma of our immigration detention system. </p>
<p>A <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/risk-management-immigration-detention-2019">2019 report</a> by the Australian Human Rights Commission found only a minority of detainees use mobile phones inappropriately. In contrast, rates of self-harm in Australia’s immigration detention system are <a href="https://www.abc.net.au/news/2019-10-14/asylum-seekers-in-detention-200-more-likely-to-commit-self-harm/11600148">200 times higher</a> than in the Australian community. </p>
<p>This bill would only make things worse. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355664/original/file-20200831-14-4rb2np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">For asylum seekers in indefinite detention in hotels like this one in Melbourne, mobile phones can be a lifeline.</span>
<span class="attribution"><span class="source">Michael Dodge/AAP</span></span>
</figcaption>
</figure>
<h2>The current situation in detention</h2>
<p>In theory, immigration detention in Australia is <a href="https://www.abf.gov.au/about-us/what-we-do/border-protection/immigration-detention">not meant to be punitive</a>. Yet, <a href="https://journals.sagepub.com/doi/10.1177/1440783318796301">my research</a> shows the logic of “deterrence” infuses all aspects of detention centre life. </p>
<p>Detainees are subject to constant surveillance and frequent room checks. Dorm-style sleeping arrangements afford minimal privacy. Recreational activities are limited and regular changes to internal rules breed instability. </p>
<p>The excessive <a href="https://humanrights.gov.au/about/news/use-force-immigration-detention">use of force</a> is also a concern. Just this month, the Commonwealth ombudsman <a href="https://www.theguardian.com/australia-news/2020/aug/14/ombudsman-report-exposes-brutality-of-australias-immigration-detention-network-greens-say">cautioned</a>, </p>
<blockquote>
<p>there appears to be an increasing tendency across the immigration detention network for force to be used to resolve conflict or non-compliant behaviour as the first rather than last choice.</p>
</blockquote>
<p>Detainees are rarely permitted to leave their places of detention. Some detainees — including refugees brought to Australia from <a href="https://www.refugeecouncil.org.au/offshore-processing-facts/">Papua New Guinea or Nauru</a> for <a href="https://www.sbs.com.au/news/almost-200-asylum-seekers-and-refugees-are-being-held-in-australian-hotels-what-does-their-future-hold">emergency medical care</a> under the <a href="https://www.theguardian.com/australia-news/2019/dec/04/medevac-repeal-bill-passes-after-jacqui-lambie-makes-secret-deal-with-coalition">now-repealed Medevac law</a> — have been in detention for over seven years. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-evidence-is-clear-the-medevac-law-saves-lives-but-even-this-isnt-enough-to-alleviate-refugee-suffering-125308">The evidence is clear: the medevac law saves lives. But even this isn't enough to alleviate refugee suffering</a>
</strong>
</em>
</p>
<hr>
<h2>Existing barriers to maintaining relationships</h2>
<p>In this context, connections with friends, family members, medical professionals and legal representatives are vital. But maintaining communications is far from easy. </p>
<p>Where spontaneous visits were once permitted, loved ones must now apply to <a href="https://www.refugeecouncil.org.au/detention-visitors-report/">visit detention</a> at least one week in advance. Longer application times apply for group visits. The <a href="https://www.abf.gov.au/about-us/what-we-do/border-protection/immigration-detention/visit-detention">online application</a> is prohibitively complicated for those with poor digital literacy or limited English-language capabilities. </p>
<p>At times, visiting room capacity limits cause applications to be rejected, meaning detainees can go weeks without seeing loved ones. During COVID-19, visits have been <a href="https://www.theguardian.com/australia-news/2020/mar/24/we-are-sitting-ducks-for-covid-19-asylum-seekers-write-to-pm-after-detainee-tested-in-immigration-detention">cancelled</a> altogether.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/people-are-crying-and-begging-the-human-cost-of-forced-relocations-in-immigration-detention-132193">'People are crying and begging': the human cost of forced relocations in immigration detention</a>
</strong>
</em>
</p>
<hr>
<p>When applications are approved, visitors must submit to screening, x-rays and <a href="https://www.theguardian.com/australia-news/2018/dec/13/the-farcical-drug-scanners-locking-out-melbourne-immigration-centre-visitors">drug scanning</a>. </p>
<p>There are also strict rules on the admission of food and gifts. Where visitors could once bring items like birthday cakes, fresh fruit, children’s toys and board games to their visits to create a warmer atmosphere, these items are now banned or require special approval. Guards supervise all interactions. </p>
<p>The <a href="https://theconversation.com/people-are-crying-and-begging-the-human-cost-of-forced-relocations-in-immigration-detention-132193">regular relocation of detainees between detention facilities</a> also compounds their feelings of isolation. Forced transfers — including those currently underway as part of <a href="https://overland.org.au/2020/08/the-true-cost-of-reopening-the-christmas-island-detention-centre/">the reopening of the Christmas Island immigration detention centre</a> — further separate detainees from their loved ones, with devastating consequences.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355665/original/file-20200831-24-5kauif.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The recently reopened immigration detention centre at Christmas Island.</span>
<span class="attribution"><span class="source">Richard Wainwright/AAP</span></span>
</figcaption>
</figure>
<h2>The importance of mobile phones</h2>
<p>Mobile phones are an imperfect solution to these challenges. They help detainees maintain their relationships and mental health when other lines of communication are severed. </p>
<p>Sometimes, they are the only way detainees can <a href="https://www.theguardian.com/australia-news/2020/jul/19/my-only-desire-is-to-hold-my-son-the-grief-of-indefinite-detention">speak to their children</a> or families. </p>
<p>Mobile phones serve myriad functions for detainees, including allowing them to</p>
<ul>
<li><p>communicate with loved ones within and beyond Australia </p></li>
<li><p>coordinate visit times with local supporters</p></li>
<li><p>correspond with legal professionals, including via email</p></li>
<li><p>learn English and translate documents or conversations </p></li>
<li><p>access personal photographs</p></li>
<li><p>access medical advice </p></li>
<li><p>view entertainment, including movies and exercise videos </p></li>
<li><p>read news from Australia and abroad </p></li>
<li><p>document abuses or <a href="https://probonoaustralia.com.au/news/2020/08/immigration-detainees-scared-and-stressed-about-catching-covid-19/">safety concerns</a> within the centres and</p></li>
<li><p>have <a href="https://www.buzzfeed.com/hannahryan/refugees-phones-australia-whatsapp-interview">a voice and a face</a> in the public sphere. </p></li>
</ul>
<p>As the <a href="https://www.abc.net.au/news/2019-08-30/who-are-tamil-family-from-biloela-why-are-they-being-deported/11463276">case of the Tamil family from Biloela</a> exemplifies, mobile phones can be the difference between deportation and access to justice. </p>
<p>Last year, when the authorities attempted <a href="https://www.abc.net.au/news/2019-08-29/tamil-asylum-seeker-family-from-biloela-facing-deportation/11463176">a late night deportation</a> of the family, they used their phone to contact supporters and journalists, who in turn alerted their lawyer. An emergency injunction was subsequently granted and their plane turned back mid-flight.</p>
<p>Banning mobile phones would rob detainees of many of the strategies they use to survive and access justice. It would also punish detainees’ children, partners, parents and friends.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1299586240384086016"}"></div></p>
<h2>The senselessness of the bill</h2>
<p>Beyond the mobile phone ban itself, granting new screening and search powers would add to the trauma of detention spaces. These are already environments in which excessive force is used. Allowing strip searches and the use of detector dogs would only increase the potential for abuse. </p>
<p>Australia’s immigration detention facilities are highly securitised places. Where there are reasonable grounds to suspect criminal activity, <a href="https://www.lawcouncil.asn.au/media/media-releases/proposed-legislation-tars-all-in-detention-centres-with-same-brush">the police already have power</a> to search the facilities. Granting centre staff power to perform invasive searches is neither necessary nor appropriate. </p>
<p>The proposed bill would not make detention centres safer. It would increase the cruelty of an already cruel system. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/refugees-need-protection-from-coronavirus-too-and-must-be-released-136961">Refugees need protection from coronavirus too, and must be released</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/145299/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This research was funded by an Australian Government Research Training Program Stipend Scholarship and grants from the University of Queensland and the University of Sydney. Michelle Peterie has received funding from the Australian Research Council for other research projects.</span></em></p>The government claims the bill is needed to make detention centres safer. But it would strip away a vital lifeline for people already 200 times more likely to self-harm than the Australian community.Michelle Peterie, Research Fellow, University of WollongongLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1435972020-07-29T07:09:46Z2020-07-29T07:09:46ZI kept silent to protect my colleague and friend, Kylie Moore-Gilbert. But Australia’s quiet diplomatic approach is not working<figure><img src="https://images.theconversation.com/files/350077/original/file-20200729-29-1pu2ets.jpg?ixlib=rb-1.1.0&rect=65%2C73%2C5390%2C3383&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Abedin Taherkenareh/AAP</span></span></figcaption></figure><p>Kylie Moore-Gilbert, a Middle East expert from the University of Melbourne, has now been <a href="https://www.abc.net.au/news/2020-07-28/dfat-seeks-access-to-kylie-moore-gilbert-jailed-in-iran/12500978">held by the Iranian government</a> for almost two years.</p>
<p>She was arrested in <a href="https://www.theguardian.com/world/2019/sep/17/shes-not-a-spy-friends-shocked-over-academic-dr-kylie-moore-gilberts-jailing-in-iran">September 2018</a> and then convicted of spying and sentenced to ten years’ jail. She has <a href="https://www.theguardian.com/australia-news/2020/may/10/kylie-moore-gilbert-feels-abandoned-by-australia-sources-in-iranian-prison-say">denied all allegations</a> against her, and the Australian government rejects the charges as baseless and politically motivated. </p>
<p>Until recently, Kylie has been in solitary confinement in Iran’s Evin prison, run by the Iranian Revolutionary Guard Corps. But this week, she was <a href="https://www.theguardian.com/world/2020/jul/29/kylie-moore-gilbert-terrified-and-suffering-inside-notorious-desert-prison-in-iran">transferred to Qarchak</a>, which is notorious for its <a href="https://www.state.gov/report-to-congress-list-of-persons-who-are-responsible-for-or-complicit-in-certain-human-rights-abuses-in-iran/">brutal treatment</a> of prisoners. </p>
<figure class="align-right ">
<img alt="Portrait of Australian academic Kylie Moore-Gilbert." src="https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=805&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=805&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=805&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1012&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1012&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350097/original/file-20200729-33-hux49u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1012&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Kylie Moore-Gilbert has been detained in Iran for more than 680 days.</span>
<span class="attribution"><span class="source">Department of Foreign Affairs</span></span>
</figcaption>
</figure>
<p>Kylie is a colleague and a friend. For the past two years, I have been keeping silent in the hopes a quiet diplomatic approach would secure her freedom. </p>
<p>But it is hard to overstate how horrific this week’s development is. Australia needs to do more. </p>
<h2>‘Entirely alone’</h2>
<p>I am a Middle East analyst, who specialises in the Persian Gulf. In fact, Kylie and I first met because we both work on state-society relations in Bahrain. I can see, examining the treatment of <a href="https://iranhumanrights.org/2018/05/who-are-the-dual-nationals-imprisoned-in-iran/">other foreign political prisoners</a> in Iran, that Kylie has been treated exceptionally poorly. </p>
<p>In letters smuggled out of Evin prison last year, <a href="https://www.theguardian.com/australia-news/2020/jan/21/jailed-british-australian-kylie-moore-gilbert-rejected-irans-offer-to-work-as-a-spy">Kylie wrote</a> how she felt “entirely alone”. She has <a href="https://www.theguardian.com/australia-news/2020/jan/15/australian-academic-kylie-moore-gilbert-begs-scott-morrison-to-help-get-her-out-of-iranian-jail">also written</a> how her “physical and mental health continues to deteriorate”.</p>
<p>Media reports indicate Kylie was able to speak to her family about <a href="https://www.theguardian.com/world/2020/jul/29/kylie-moore-gilbert-terrified-and-suffering-inside-notorious-desert-prison-in-iran">a month ago</a> and Australian diplomatic staff have also been in contact. </p>
<p>However the Department of Foreign Affairs and Trade’s <a href="https://www.sbs.com.au/news/dfat-seeks-urgent-access-to-kylie-moore-gilbert-after-transfer-to-new-iran-prison">statement this week</a> – that they are “urgently seeking further consular access to her at this new location” and “hold Iran responsible for Dr Moore-Gilbert’s safety and well-being” – suggests Australia was not consulted before her transfer to Qarchak. </p>
<p>On Wednesday, <a href="https://www.theguardian.com/world/2020/jul/29/kylie-moore-gilbert-terrified-and-suffering-inside-notorious-desert-prison-in-iran">The Guardian reported</a> a recording of Kylie out of Qarchak. Speaking Persian, she says: </p>
<blockquote>
<p>I can’t eat anything. I feel so very hopeless […] I am so depressed.</p>
</blockquote>
<p>Is this all two years of diplomacy has bought us? </p>
<h2>Australia must do more</h2>
<p>I am not speaking out now to challenge this quiet diplomatic approach regarding Iran. I am speaking because I believe more public pressure must be placed on the Australian government to ensure it is living up to its own rhetoric. </p>
<p><a href="https://www.abc.net.au/news/2020-07-28/dfat-seeks-access-to-kylie-moore-gilbert-jailed-in-iran/12500978">DFAT claims</a> Kylie’s case is “one of the Australian government’s highest priorities, including for our Embassy officials in Tehran”.</p>
<p>But the amount of secrecy involved in the process means we cannot know if this is true.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-australian-government-needs-to-step-up-its-fight-to-free-kylie-moore-gilbert-from-prison-in-iran-130591">The Australian government needs to step up its fight to free Kylie Moore-Gilbert from prison in Iran</a>
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<p>Even though the situation is sensitive, there are avenues Australia can pursue on behalf of Kylie. </p>
<p>Based on my analysis of publicly reported cases, around one in three foreign political prisoners in Iran over the past five years have been released <a href="https://www.npr.org/sections/thetwo-way/2016/01/16/463315972/who-are-the-prisoners-the-u-s-and-iran-are-exchanging">via a prisoner swap</a>. This reportedly includes Australian tourists <a href="https://www.theguardian.com/australia-news/2019/oct/06/australian-travel-bloggers-released-in-iran-were-freed-in-apparent-prisoner-swap">Jolie King and Mark Firkin</a> who were arrested in Iran last year. </p>
<p>Based on publicly available knowledge, Australia does not currently hold any Iranian prisoners. However our key ally, <a href="https://www.justice.gov/usao-cdca/pr/man-taken-custody-after-being-charged-illegally-exporting-prohibited-manufacturing">the United States, does</a>.</p>
<h2>The politics are not straightforward</h2>
<p>It must be acknowledged that the politics around this case are very complicated. Relations between Iran and the US and far from friendly - especially after the <a href="https://www.brookings.edu/blog/order-from-chaos/2020/01/07/what-the-killing-of-qassem-soleimani-could-mean/">assassination</a> of Iranian Revolutionary Guard Corps commander Qassem Soleimani in January 2020. </p>
<p>There is another problem, too. </p>
<p>Despite Australia maintaining constructive relationships with Iranian President Hassan Rouhani and Foreign Minister Mohammad Javad Zarif, they are not the key to securing Kylie’s freedom. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/as-pressure-on-iran-mounts-there-is-little-room-for-quiet-diplomacy-to-free-detained-australians-123599">As pressure on Iran mounts, there is little room for quiet diplomacy to free detained Australians</a>
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<p>The Iranian political system is fragmented and parts of the army, judiciary and intelligence agencies report to Iran’s Supreme Leader, Ayatollah Ali Khamenei. </p>
<p>Rouhani and Khamenei’s relationship is also poor and Khamenei’s influence has grown since Kylie was first incarcerated. Iran will hold presidential elections in 2021 and as Khamenei seeks to secure Iran’s future, he may attempt to empower a more hardline president. </p>
<figure class="align-center ">
<img alt="Iranian President Hassan Rouhani walking in front of a portrait of Supreme Leader Ayatollah Ali Khamenei" src="https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350108/original/file-20200729-23-1a0e027.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Relations between Iran’s President Hassan Rouhani and Supreme Leader Ayatollah Ali Khamenei are poor.</span>
<span class="attribution"><span class="source">Iran President handout</span></span>
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<p>This means Australia must think outside the box to secure Kylie’s release. The solution to this crisis is undoubtedly a diplomatic one - and we clearly need to spend more diplomatic capital than we’re already using to fix it. </p>
<p>But it will become more difficult if we do not put sufficient resources into her release before the next presidential election.</p>
<h2>This case is relevant for all of us</h2>
<p>COVID-19 also makes Kylie’s situation more urgent. My assessment is the Australian government must urgently push for Kylie’s immediate transfer out of Qarchak prison, to a safe location where her consular access and health can be protected. </p>
<p>There is precedent for foreign detainees to be transferred to house arrest <a href="https://www.npr.org/2020/06/04/869896772/iran-frees-u-s-navy-veteran-michael-white-who-was-detained-for-nearly-two-years">in embassies</a> while cases are resolved. </p>
<p>Beyond the harrowing personal situation, Kylie’s case is also relevant to all of us. It fits a wider pattern, where the space for <a href="https://theconversation.com/scholars-growing-insecurity-puts-academic-freedom-at-risk-128680">academic research is being narrowed</a> in authoritarian states. This is occurring not just in Iran but in countries such as China, the United Arab Emirates and Saudi Arabia. </p>
<p>If this research cannot be conducted, or if the Australian government fails to protect its researchers who need to do fieldwork in these countries, this allows authoritarian states to silence criticism. </p>
<p>And then set the narrative about their internal politics as they see fit. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/scholars-growing-insecurity-puts-academic-freedom-at-risk-128680">Scholars' growing insecurity puts academic freedom at risk</a>
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<img src="https://counter.theconversation.com/content/143597/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessie Moritz receives funding from the Australian National University for her research. She is a Board Member at-Large with the Association for Gulf and Peninsula Studies. Her opinions and analysis as expressed in the Conversation are personal and do not necessarily reflect those of the ANU or AGAPS. </span></em></p>Australian academic Kylie Moore-Gilbert has been detained in Iran since 2018. Her transfer to a notoriously brutal prison this week has pushed a fellow researcher to speak out.Jessie Moritz, Lecturer in Middle East studies, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1345442020-04-13T19:47:38Z2020-04-13T19:47:38ZHotels are no ‘luxury’ place to detain people seeking asylum in Australia<p>In Australia, much of the discussion about detaining asylum seekers has focused on offshore sites on Manus, Nauru and Christmas Island. </p>
<p>But, as the recent ABC drama series <a href="https://www.imdb.com/title/tt4878488/">Stateless</a> reminds us, detention of asylum seekers within Australia has a longer history and continues today.</p>
<p>The Department of Home Affairs <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-29-february-2020.pdf">recorded 1,436 people in detention</a> on mainland Australia at the end of February. </p>
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Read more:
<a href="https://theconversation.com/stateless-review-remembering-a-time-when-we-were-outraged-132967">Stateless review: remembering a time when we were outraged</a>
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<p>Not all are in the standard detention centres. We’ve seen a return of hotels used for detention and that’s a worrying trend, particularly in light of the COVID-19 pandemic. The government has been told hotels are “<a href="https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/risk-management-immigration-detention-2019">not appropriate places of detention</a>”.</p>
<h2>Kept in hotel detention</h2>
<p>The use of hotels as Alternative Places of Detention (APOD) is not a new practice. For example, the <a href="https://www.abc.net.au/news/2010-12-14/human-rights-body-blasts-detention-facilities/2373638">Asti Motel in Darwin</a> was used to detain unaccompanied minors and families with children in 2010.</p>
<p>Hotels are being used now to detain asylum seekers, specifically at <a href="https://www.theguardian.com/australia-news/2019/jun/30/like-a-criminal-inside-the-brisbane-hotel-where-medevac-refugees-are-detained">Kangaroo Point Central</a> in Brisbane and the <a href="https://www.theguardian.com/australia-news/2019/dec/19/asylum-seekers-transferred-to-australia-under-medevac-laws-held-in-melbourne-hotel">Mantra Bell City in suburban Melbourne</a>.</p>
<p>Most of those detained in these hotels were transferred throughout 2019 – following several years of detention in Papua New Guinea and Nauru – under the <a href="https://www.thesaturdaypaper.com.au/opinion/topic/2019/11/30/the-importance-medevac/15750324009164">now-repealed Medevac provision</a>.</p>
<p>Some media have portrayed the use of hotels to detain asylum seekers as a form of <a href="https://www.dailytelegraph.com.au/news/nsw/asylum-seekers-medically-treated-in-australia-cost-taxpayers-14-billion-in-accommodation-expenses/news-story/448b9b26e061be786acbbfe3c7697ff1">luxury accommodation at taxpayers’ expense</a>.</p>
<p>In Queensland, <a href="https://www.couriermail.com.au/news/queensland/410k-fourstar-treatment-public-still-paying-high-cost-of-medevac-program/news-story/039dcbe572777cc05bda07fb770156e2">The Courier Mail</a> adopted this tactic when it said the 45 asylum seekers detained in Brisbane were in a four-star, city hotel costing Australian taxpayers more than $410,000 a week.</p>
<h2>No luxury for ‘guests’</h2>
<p>But this <a href="https://independentaustralia.net/life/life-display/the-truth-about-the-medevac-four-star-asylum-seekers,13439">supposed luxury accommodation</a> is indisputably a site of detention, rather than a comfortable holiday, with untold impacts on physical and mental health.</p>
<p>Those detained in Brisbane and Melbourne are typically held <a href="https://www.theguardian.com/australia-news/2019/dec/19/asylum-seekers-transferred-to-australia-under-medevac-laws-held-in-melbourne-hotel">two or more to a room</a>, under the constant watch of security officers. They are allowed use of the hotel’s gym facilities for only a few hours a day at most.</p>
<p>In order to physically go outside, those held at Kangaroo Point Central or the Mantra Bell City must be <a href="https://www.buzzfeed.com/hannahryan/brisbane-australia-motel-refugees-locked-up?bfsource=relatedmanual">transferred by bus to other immigration sites in Brisbane and Melbourne</a>, after being subjected to body pat-downs, where they may briefly access the exercise areas.</p>
<p>Independent reviews of the detention situation in Australia are relatively minimal and infrequent.</p>
<p>The Commonwealth Ombudsman, tasked with immigration detention oversight since 2011, <a href="https://www.ombudsman.gov.au/media-releases/media-release-documents/commonwealth-ombudsman/2020/report-into-the-current-state-of-immigration-detention-facilities">released its first review</a> to the public only in February of this year.</p>
<p>But this report only covers its inspections from January to June 2019, at roughly the time the hotels were brought into use. It said:</p>
<blockquote>
<p>During this reporting period, we continued to highlight our concern about the facilities provided in the non-medical APODs. These include shortfalls in daily access to outdoor recreation areas, dining areas also being used as multi-purpose rooms, and medical and mental health clinics that do not support the detainees’ right to private consultations.</p>
</blockquote>
<p>The Australian Human Rights Commission conducts periodic reviews of detention sites. It said in its <a href="https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/risk-management-immigration-detention-2019">May 2019 report</a>: </p>
<blockquote>
<p>… hotels are not appropriate places of detention, given their lack of dedicated facilities and restrictions on access to open space.</p>
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<p>It found the restrictions on the mobility of detainees was significantly greater within hotel APODs than in any mainland detention centre.</p>
<h2>Hotels for ‘short period’ use</h2>
<p>In response to the AHRC’s recommendation that hotels only be used in exceptional circumstances or for very short periods of detention, the <a href="https://www.humanrights.gov.au/sites/default/files/home_affairs_response_ahrc_risk_report2019.pdf">Department of Home Affairs responded</a>:</p>
<blockquote>
<p>Hotels are designated as APODs, and are used as transit accommodation. Transit accommodation is generally used for detainees required to be in held detention for a short period, detainees subject to airport turnaround and detainees ready to be removed.</p>
</blockquote>
<p>Those held in the hotels in Brisbane and Melbourne – many previously transferred due to severe physical and mental health issues in Manus or Nauru – have described how their <a href="https://www.theage.com.au/politics/federal/medevac-asylum-seekers-detained-in-a-melbourne-hotel-for-months-20191217-p53kmh.html">health concerns have been exacerbated</a> since arriving.</p>
<p>Most say they have now been detained for several months, often <a href="https://www.abc.net.au/news/2019-12-19/medevac-refugees-locked-in-melbourne-hotel/11813008">spending 19 hours or more per day</a> in their rooms. That’s anything but a “short period” of detention.</p>
<h2>Coronavirus concerns</h2>
<p>The COVID-19 crisis has generated <a href="https://www.theguardian.com/australia-news/2020/mar/24/we-are-sitting-ducks-for-covid-19-asylum-seekers-write-to-pm-after-detainee-tested-in-immigration-detention">considerable additional concern</a> for the hotel detainees, who have reported minimal or non-existent measures to prevent an outbreak.</p>
<p>A guard at Kangaroo Point Central <a href="https://www.theguardian.com/australia-news/2020/mar/19/fears-for-refugees-as-guard-at-brisbane-immigration-detention-centre-tests-positive-for-coronavirus">tested positive</a> for COVID-19 on March 18.</p>
<p>Visits to detainees have been <a href="https://www.buzzfeed.com/hannahryan/visits-banned-immigration-detention-coronavirus-covid19">suspended</a>, as well as transfers to the Brisbane and Melbourne immigration centres for outdoor recreation time. The cramped conditions in hotel rooms, common spaces and eating areas have not been addressed. The Ombudsman has now been <a href="https://twitter.com/CaruanaSteven/status/1247327683526062080">banned from conducting inspections</a>.</p>
<p>Across the globe, <a href="https://www.theguardian.com/world/2020/mar/14/coronavirus-call-to-release-uk-immigration-centre-detainees">calls and petitions</a> have been made to “decarcerate” or reduce the number of people in prisons and detention centres in light of COVID-19.</p>
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Read more:
<a href="https://theconversation.com/how-refugees-succeed-in-visa-reviews-new-research-reveals-the-factors-that-matter-131763">How refugees succeed in visa reviews: new research reveals the factors that matter</a>
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<p>In the UK, the Home Office <a href="https://www.theguardian.com/uk-news/2020/mar/21/home-office-releases-300-from-detention-centres-amid-covid-19-pandemic?CMP=Share_iOSApp_Other">released almost 300 asylum seekers</a> from detention, roughly a quarter of the total detained. </p>
<p>In Australia such action has yet to be taken. <a href="https://www.sbs.com.au/language/english/coronavirus-asylum-seekers-in-three-detention-centres-protest-over-virus-fears">Protests</a> within the hotels and immigration detention centres, statements by <a href="https://www.sydneycriminallawyers.com.au/blog/release-immigration-detainees-for-covid-an-interview-with-advocate-margaret-sinclair/">lawyers</a> and <a href="https://www.buzzfeed.com/amphtml/hannahryan/coronavirus-australia-doctors-covid-detention-immigration">health experts</a>, and <a href="https://www.change.org/p/peter-dutton-stop-the-spread-of-covid-19-in-immigration-detention-centres-saferathome">online petitions</a> are increasing pressure on the government to release detainees into the community.</p>
<p>Yet, rather than reducing the numbers, transfers are instead increasing numbers within hotels. Last week, detainees at the <a href="https://www.abf.gov.au/about-us/what-we-do/border-protection/immigration-detention/detention-facilities">Brisbane immigration transit accommodation</a> in Pinkenba (up to 204 men according to <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-29-february-2020.pdf">February statistics</a>) began to be <a href="https://www.rnz.co.nz/international/pacific-news/413433/doctors-want-refugees-out-of-hotels-because-of-covid-19-risk">transferred to the Kangaroo Point Central Hotel</a>.</p><img src="https://counter.theconversation.com/content/134544/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Burridge is affiliated with the Centre for Policy Development. </span></em></p>The use of hotels as alternative sites for detention is a worrying trend, particularly during the COVID-19 pandemic.Andrew Burridge, Lecturer in Human Geography, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1235992019-09-16T20:40:11Z2019-09-16T20:40:11ZAs pressure on Iran mounts, there is little room for quiet diplomacy to free detained Australians<figure><img src="https://images.theconversation.com/files/292560/original/file-20190916-19076-1wz4cof.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former Foreign Minister Julie Bishop has offered to help free three detained Australians in Iran, but the attacks on Saudi oil facilities have made the situation vastly more complicated.</span> <span class="attribution"><span class="source">Stringer/EPA</span></span></figcaption></figure><p>Australia’s attempts to secure the release of <a href="https://www.theguardian.com/world/2019/sep/12/australia-left-with-few-diplomatic-levers-after-three-citizens-detained-in-iran">an Australian national and two with joint UK-Australian citizenship</a> from an Iranian prison have become vastly more complicated following the <a href="https://www.reuters.com/article/us-saudi-aramco-fire/attacks-on-saudi-oil-facilities-knock-out-half-the-kingdoms-supply-idUSKCN1VZ01N">brazen attacks</a> on Saudi oil facilities over the weekend.</p>
<p>Room for quiet diplomacy has been narrowed while the world comes to terms with a strike at the <a href="https://www.nytimes.com/2019/09/14/world/middleeast/saudi-arabia-refineries-drone-attack.html">very heart of global energy security</a>.</p>
<p>At this stage, it is not clear to what extent facilities at Saudi Arabia’s main refinery have been crippled, but initial reports <a href="https://www.bbc.com/news/business-49710820">indicate it could be weeks</a> and possibly months before it is brought back into full production.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/as-australia-looks-to-join-a-coalition-in-iran-the-risks-are-many-121550">As Australia looks to join a coalition in Iran, the risks are many</a>
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<p>Saudi Arabia’s Abqaiq refinery <a href="https://www.washingtonpost.com/world/iran-dismisses-allegations-it-carried-out-crippling-attack-on-saudi-oil-facilities/2019/09/15/021b6822-d731-11e9-8924-1db7dac797fb_story.html">processes about half the kingdom’s oil production</a>. According to initial reports, the attack reduced throughput by 5 million barrels a day, or nearly <a href="https://www.reuters.com/article/us-global-oil/oil-prices-surge-15-after-attack-on-saudi-facilities-hits-global-supply-idUSKBN1W00UG">5% of global production</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1173420732816035840"}"></div></p>
<h2>‘Hostage diplomacy’</h2>
<p>Australia’s former foreign minister, Julie Bishop, <a href="https://www.smh.com.au/politics/federal/julie-bishop-offers-to-help-with-iranian-negotiations-to-free-detained-australians-20190915-p52rla.html">has offered to intervene</a> with the Iranian authorities in an attempt to secure the release of the Australian nationals being held in Tehran.</p>
<p>These include Mark Firkin and his UK-Australian girlfriend, Jolie King. The two were <a href="https://www.abc.net.au/news/2019-09-12/jolie-king-mark-firkin-travel-bloggers-australian-detained-iran/11504740">arrested</a> earlier this year for the unauthorised flying of a drone near a military facility on the outskirts of Tehran. They have not been charged.</p>
<p>More serious at this stage, however, is the case of Melbourne University Middle East specialist and joint UK-Australia citizen Kylie Moore-Gilbert, who was detained in October 2018. She has been <a href="https://www.bbc.com/news/world-middle-east-49700070">sentenced to 10 years in jail</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=805&fit=crop&dpr=1 600w, https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=805&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=805&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1012&fit=crop&dpr=1 754w, https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1012&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/292556/original/file-20190916-19063-h5r1o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1012&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">University of Melbourne Middle East specialist Kylie Moore-Gilbert.</span>
<span class="attribution"><span class="source">Department of Foreign Affairs and Trade Handout/EPA</span></span>
</figcaption>
</figure>
<p>Iran has not publicly announced details of charges against her.</p>
<p>The cases of Moore-Gilbert, Firkin and King have, inevitably and unhelpfully, become enmeshed in wider geopolitical tensions in which Iran is fighting back against a US sanctions regime that seeks to cripple its economy.</p>
<p>Iran is being accused of “hostage diplomacy” by resorting to the incarceration of foreign nationals at a time when sanctions are rendering enormous damage to its oil-exporting economy.</p>
<p>This is the background to the <a href="https://foreignminister.gov.au/transcripts/Pages/2019/mp_tr_190912a.aspx">diplomatic challenges facing the Australian government in its efforts to free its citizens</a>. These are, by any standards, unpromising circumstances.</p>
<p>While Australian officials insist <a href="https://theconversation.com/infographic-what-is-the-conflict-between-the-us-and-iran-about-and-how-is-australia-now-involved-121490">Canberra’s decision to commit</a> to a US-led mission to protect ships travelling through the Strait of Hormuz is unconnected to the detention of its citizens, Tehran has a history of using individuals ruthlessly as bargaining chips in a wider geopolitical game.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/infographic-what-is-the-conflict-between-the-us-and-iran-about-and-how-is-australia-now-involved-121490">Infographic: what is the conflict between the US and Iran about and how is Australia now involved?</a>
</strong>
</em>
</p>
<hr>
<p>Hostage taking, or “hostage diplomacy”, has a <a href="https://history.state.gov/departmenthistory/short-history/iraniancrises">lengthy tail in the history of the Islamic Republic</a> going back to the November 4, 1979, seizure of the American embassy in Tehran and a siege that ensued for 444 days. Fifty-two Americans were held hostage for more than a year.</p>
<p>More recently, Washington Post reporter Jason Rezaian was held in Iran for 544 days before <a href="https://www.theguardian.com/world/2016/jan/16/iran-releases-washington-post-journalist-jason-rezaian">being released</a> with three other Iranian-Americans as part of a <a href="https://www.nytimes.com/2016/01/17/world/middleeast/iran-releases-washington-post-reporter-jason-rezaian.html">prisoner swap</a> in 2016, just before economic sanctions on Iran were lifted under the terms of the nuclear deal.</p>
<p>In recent weeks, Iran has also detained a <a href="https://www.reuters.com/article/us-iran-tanker-stena/iran-has-released-seven-crew-members-of-seized-tanker-stena-impero-sweden-foreign-minister-idUSKCN1VP2SD">UK-flagged oil carrier in the Persian Gulf</a>. The Stena Impero remains in Iranian custody, but members of its crew have been let go.</p>
<h2>US blaming Iran for Saudi attack</h2>
<p>All this was contributing to heightened tensions in the gulf before this weekend’s attacks at the very heart of Saudi Arabian oil infrastructure.</p>
<p>US Secretary of State Mike Pompeo wasted little time in <a href="https://www.bbc.com/news/world-middle-east-49705197">blaming Iran for the attacks</a>. Although Houthi rebels in Yemen claimed responsibility for the strikes using drones, <a href="https://www.nytimes.com/2019/09/15/world/middleeast/iran-us-saudi-arabia-attack.html">Washington is investigating</a> whether cruise missiles were the weapon of choice, fired from either Iraq or Iran itself. A Trump administration official <a href="https://www.reuters.com/article/us-saudi-aramco-attacks/attack-on-saudi-oil-facility-came-from-direction-of-iran-not-yemen-u-s-official-idUSKBN1W00SA">told Reuters</a>,</p>
<blockquote>
<p>There’s no doubt that Iran is responsible for this. No matter how you slice it, there’s no escaping it. There’s no other candidate.</p>
</blockquote>
<p>Tehran <a href="https://www.theguardian.com/world/2019/sep/15/iran-denies-drone-attacks-on-saudi-arabia-aramco-ab-qaiq-oil-facility">has denied</a> Washington’s accusations.</p>
<p>Saudi Arabia and its Yemeni government allies have been <a href="https://www.theguardian.com/world/2018/nov/21/who-are-the-houthis-fighting-the-saudi-led-coalition-in-yemen">engaged in a vicious conflict</a> with Houthi rebels since 2015. Thousands have been killed, and many more displaced, in what is regarded as the most serious humanitarian crisis in the world today.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/yemen-a-calamity-at-the-end-of-the-arabian-peninsula-67954">Yemen: a calamity at the end of the Arabian peninsula</a>
</strong>
</em>
</p>
<hr>
<p>Iran is supporting the Houthis and is widely accused of fuelling the Yemen conflict to weaken Saudi Arabia. </p>
<p>In other words, the gulf and its environs are primed for worsening conflict unless the US and Iran can reach an accommodation that would enable an easing of sanctions.</p>
<p>President Donald Trump <a href="https://www.reuters.com/article/us-iran-nuclear-trump/trump-says-meeting-with-irans-rouhani-possible-at-u-n-general-assembly-idUSKCN1VP2EW">has been angling</a> for a face-to-face meeting with Iranian President Hassan Rouhani at the upcoming United Nations General Assembly to address ways in which tensions could be eased.</p>
<p>Attacks on Saudi Arabian oil facilities – and, thus, the global economy – hardly provides a favourable environment for discussions that might, or might not, take place.</p>
<p>Iran has set as a <a href="https://edition.cnn.com/2019/09/13/politics/rouhani-trump-meeting-new-york/index.html">precondition for talks</a> a relaxation of sanctions.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=371&fit=crop&dpr=1 600w, https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=371&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=371&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=467&fit=crop&dpr=1 754w, https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=467&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/292555/original/file-20190916-19068-1d7sdkr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=467&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Satellite image of smoke from fires at two major oil installations in Saudi Arabia after the attack over the weekend.</span>
<span class="attribution"><span class="source">NASA Worldview Handout/EPA</span></span>
</figcaption>
</figure>
<h2>Australia’s limited leverage</h2>
<p>Meanwhile, the Australian government finds itself in a situation where it has limited leverage. Trade between Australia and Iran is negligible and holds little promise as long as sanctions remain in place. Canberra’s decision to join a US-led mission in the Middle East means that it is now identified with Washington’s “<a href="https://www.iiss.org/publications/strategic-comments/2019/iran-tensions-3">maximum pressure</a>” approach.</p>
<p>Australia is <a href="https://www.nytimes.com/2019/08/21/world/australia/ships-hormuz.html">one of three countries</a> to have signed up to the US initiative. The others are Britain and Bahrain.</p>
<p>In all of this there is another complicating factor, and one that has been little-reported. Tehran was displeased when <a href="https://www.theguardian.com/us-news/2019/aug/11/iranian-woman-arrested-in-australia-pleads-guilty-to-conspiracy-in-us">Australia arrested an Iranian citizen at the request of the US for breaching sanctions</a>.</p>
<p>Iran made repeated representations to secure the release of Negar Ghodskani after her arrest in 2017. She has <a href="https://minnesota.cbslocal.com/2019/08/09/iranian-national-negar-ghodskani-pleads-guilty-in-minnesota-in-tech-smuggling-case/">pleaded guilty</a> to conspiring to facilitate the illegal export of technology from the US and faces a hefty fine and jail time.</p>
<p>This is a tangled web, and hardly likely to become less so.</p><img src="https://counter.theconversation.com/content/123599/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tony Walker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Iran is being accused of ‘hostage diplomacy’ by resorting to incarcerating foreign nationals at a time when sanctions are crippling its economy.Tony Walker, Adjunct Professor, School of Communications, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1207512019-07-23T05:06:06Z2019-07-23T05:06:06ZWhy ‘Democracy peddler’ Yang Hengjun has been detained in China and why he must be released<figure><img src="https://images.theconversation.com/files/285257/original/file-20190723-91864-1vuqont.jpg?ixlib=rb-1.1.0&rect=0%2C444%2C1787%2C949&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">China critic Yang Hengjun in July 2018.</span> <span class="attribution"><a class="source" href="https://twitter.com/yanghengjun/status/1015089448923648000">Twitter</a></span></figcaption></figure><p>Australian authorities have <a href="https://www.theguardian.com/world/2019/jul/20/yang-hengjun-china-tells-australia-to-stop-interfering-in-writers-detention">been told to stop interfering</a> in the case of the Chinese-Australian writer Dr Yang Hengjun who has been <a href="https://www.abc.net.au/news/2019-07-19/yang-hengjun-federal-government-hits-out-china-detention/11327138">detained</a> by China since January.</p>
<p>Amid reports last week that <a href="https://theconversation.com/australian-writer-yang-hengjun-is-set-to-be-charged-in-china-at-an-awkward-time-for-australia-china-relations-120605">Yang was to be charged with endangering state security</a>, Foreign Affairs Marise Paynee said he was being <a href="https://foreignminister.gov.au/releases/Pages/2019/mp_mr_190719b.aspx">detained for his political views</a> and should be released.</p>
<p>Yang is a member of the Australian media union, the MEAA, which <a href="https://www.meaa.org/news/meaa-calls-on-china-to-release-australian-journalist/">backed calls for his release</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australian-writer-yang-hengjun-is-set-to-be-charged-in-china-at-an-awkward-time-for-australia-china-relations-120605">Australian writer Yang Hengjun is set to be charged in China at an awkward time for Australia-China relations</a>
</strong>
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</p>
<hr>
<p>I’ve known Yang for many years – he is a former PhD student of mine – and I also believe he should be released.</p>
<p>I’ve seen reports sent to his wife, Yuan Xiaoliang, from Australian consul visits to Yang.</p>
<p>The reports say Yang is sealed off from the outside world without access to legal counsel or visits by relatives, and he has been subjected to interrogations twice a day.</p>
<h2>A novel critic</h2>
<p>So what has Yang done that has led to his detention for so long? In a nutshell, Yang is a political dissident no longer tolerated by the Chinese communist regime. He is paying a heavy price as a long-standing critic of the Chinese Communist Party (CCP).</p>
<p>Yang, aged 54, abandoned his career as a communist cadre to embrace freedom and democracy in his middle age. </p>
<p>He earned his first degree in politics from Fudan University in China in 1987 and was assigned to work in the Ministry of Foreign Affairs with connection to the Chinese secret police. He was eventually alienated by his job and developed a strong interest in literature.</p>
<p>He resigned from his post and moved to Australia with his wife and two sons in 1999 to pursue his dream of becoming a writer. In 2002-2005, he published a trilogy of spy novels, Fatal Weakness, Fatal Weapon and Fatal Assassination, in print and online.</p>
<p>These novels used his own experiences and those of his colleagues to tell the soul-stirring stories of a China-US double agent who ultimately serves the agenda for neither side but works for his own inspiration and conviction to serve the real interests of the people.</p>
<p>But the novels did not bring him the fame and wealth he expected, because they were published in Taiwan and banned in mainland China. An attempt to turn them into movies in Hong Kong also failed.</p>
<h2>The rise of the blogger</h2>
<p>At the end of 2005, Yang enrolled in a PhD in China Studies at the University of Technology Sydney under my supervision, starting his journey as a liberal scholar. By that time, I’d become a major contributor to the emergence of the Chinese liberal camp and Chinese liberal intellectuals.</p>
<p>Yang got his PhD in 2009 with a thesis titled The Internet and China: the Impacts of Netizen Reporters and Bloggers on Democratisation in China. The thesis was a timely, in-depth analysis of the complicated information warfare between the internet and the CCP regime.</p>
<p>As part of an experiment for his PhD thesis, Yang started his own blog (available now only on <a href="http://web.archive.org/web/20181208223506/http://yanghengjun.com/">archive.org</a>) and wrote commentaries on current affairs as a “citizen journalist”.</p>
<p>Yang is that rare combination of a scholar well trained in both China and the West, with a firm belief in the universal values of human rights, democracy and the rule of law. </p>
<p>He chose to devote his talent and passion to online journalism in Chinese, hoping to accelerate China’s transformation toward constitutional democracy. He has published more than ten million words of online articles on this theme, earning the nickname “democracy pedlar” with tremendous following in the Chinese speaking world.</p>
<p>Several collections of his online articles have been published to wide audience, such as Family, State and the World (2010), Seeing the World with Black Eyes: The World in the Eyes of a Democracy Pedlar (2011), Talking about China (2014), and Keeping You Company in Your Life Journey (2014).</p>
<p>Yang is extremely good at explaining the profound in simple terms, using moving examples in everyday life to expose the social ills of communist autocracy and promote democratic values and institutions.</p>
<p>In particular, he provides timely analysis on all sorts of events around the world reported in the news, revealing the stark contrast between the harsh reality and the official rhetoric of the CCP.</p>
<p>Yang rarely engages in social activism, although he has maintained extensive connections with some Chinese human rights and democracy activists. </p>
<h2>Detained before</h2>
<p>Yang has long been targeted by the Chinese security apparatus, which detained him in March 2011, taking him as one of the opinion leaders who has the capacity to mobilise nationwide social protests.</p>
<p>He was quickly released back to Australia due to the international media campaign and the diplomatic pressure of then Prime Minister <a href="https://www.theaustralian.com.au/national-affairs/foreign-affairs/julia-gillard-to-tackle-china-on-human-rights/news-story/967fa77894177db0e204c24ba4c472e5">Julia Gillard’s visit to China</a>.</p>
<p>Why did he not learn his lesson? Well, he did tone down his voice after 2011. Since <a href="https://www.britannica.com/biography/Xi-Jinping">Xi Jinping’s</a> rise to general secretary of the CCP in 2012, Yang adopted a soft strategy of packaging his advocacy for human rights and democracy as publicising “socialist core values” promoted by the CCP.</p>
<p>Yang was so successful with this new strategy that thousands of his followers organised support groups via the social media app WeChat in more than 50 cities around China. These include Beijing, Shanghai and Guangzhou in 2015, when human rights and democracy activists had met with brutal repression.</p>
<p>In 2016, when the political environment turned from bad to worse and Yang’s blogs were shut down one by one, he closed down all of the WeChat groups and substantially scaled down his online writing.</p>
<h2>Moved to the US</h2>
<p>He moved to New York as a visiting scholar at Columbia University in 2017. He was able to travel to China several times and Chinese authorities lifted the ban on several of his blogs in China towards the end of 2018. This gave him the impression it was safe for him to visit China.</p>
<p>But during his visit this January he was <a href="https://www.theguardian.com/world/2019/jan/23/friends-fear-australian-writer-yang-hengjun-has-been-detained-in-china">detained upon his arrival</a>.</p>
<p>Thousands of Yang’s supporters have been in despair, engaging in heated debates about his ordeal and its implications for political development in China.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/avoiding-the-china-trap-how-australia-and-the-us-can-remain-close-despite-the-threat-118991">Avoiding the China trap: how Australia and the US can remain close despite the threat</a>
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<p>Instead of following the international norm of presumption of innocence, the CCP regime continues Yang’s criminal detention despite the lack of evidence he’s done anything wrong.</p>
<p>This behaviour of political persecution and hostage diplomacy clearly demonstrates the contempt China has for human rights and international moral standards. </p>
<p>The Australian government and public are obligated to challenge the laws and practice of the CCP regime in safeguarding basic human rights of innocent citizens. The international community are also obligated to support this endeavour for human dignity, and thus the immediate release of Yang.</p><img src="https://counter.theconversation.com/content/120751/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chongyi Feng receives funding from Australian Research Council.
He has known Yang since 2005 as supervisor of his PhD program at UTS, a friend and colleague, and supporter of his work.
</span></em></p>There are growing calls for the Chinese-Australian writer Yang Hengjun to be freed after six months of detention and interrogation in China.Chongyi Feng, Associate Professor in China Studies, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1153252019-04-11T18:41:56Z2019-04-11T18:41:56ZJulian Assange Q+A: WikiLeaks founder arrested in London<p><a href="https://theconversation.com/uk/topics/julian-assange-2002">Julian Assange</a>, founder of WikiLeaks, has been arrested in London and charged with conspiracy to commit computer intrusion over his alleged role in the leaking of classified United States government documents. Assange has already been found guilty of failing to surrender British police, who took him from the Ecuadorian embassy, where he has been living for nearly seven years, having claimed asylum there. Here’s what we know so far. </p>
<p><strong>Why was Assange in the Ecuadorian embassy in the first place?</strong></p>
<p>Assange sought extraterritorial asylum in the Ecuadorean embassy in London in June 2012 when an arrest warrant was issued against him in Sweden for accusations of sexual assault. He claimed that these charges were part of an international effort to silence his organisation WikiLeaks, which has become famous for publishing leaked, and often classified, information about governments across the world.</p>
<p>Importantly, the government of Ecuador took the view at the time that if the UK arrested him, he would be sent to the US to face treason charges relating to WikiLeaks exposures. Assange claimed that he could face the death penalty for those charges. Since both Ecuador and the UK are parties to the <a href="https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en">1951 Convention on Refugees</a>, they are obliged to consider whether there is a real risk that a person seeking asylum could lose their life if they were handed over to another authority when deciding whether they have to protect them.</p>
<p><strong>What were the charges against him in Sweden?</strong></p>
<p>The Swedish charges related essentially to a “preliminary investigation” into accusations of sexual offences, including an alleged rape. The proceedings began in 2012, but by August 2015, the Swedish prosecutors dropped parts of their investigation. The investigation into the allegation of rape was also dropped in May 2017. </p>
<p><strong>What are the charges against him in the US?</strong></p>
<p>The exact charges against Assange have not been clear up until now. This was partly why Ecuador and so many of his supporters backed his claims to political asylum. In the wake of Assange’s arrest, the US government has issued <a href="https://www.justice.gov/usao-edva/pr/wikileaks-founder-charged-computer-hacking-conspiracy">further details</a> about a federal charge of conspiracy to commit computer intrusion “for agreeing to break a password to a classified US government computer”. A statement from the Department of Justice accuses Assange helped former intelligence analyst Chelsea Manning crack a password that would enable her to download classified records to transmit to WikiLeaks. </p>
<p><strong>Assange has already been found guilty of failure to surrender. What does that mean?</strong></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116275669447716864"}"></div></p>
<p>In pursuit of the sexual assault charges, Sweden issued a European Arrest Warrant against Assange, which meant the UK authorities were required to act. Judges in the UK granted Assange bail at the time of this initial arrest, but with strict conditions. However, while the case was being considered, Assange entered the Ecuadorian embassy and was granted political asylum on June 16 2012. In failing to leave the embassy, he breached his bail conditions. When his asylum was revoked, he was immediately charged and subsequently found guilty of failing to surrender. He is yet to be sentenced but could face up to 12 months jail time under UK law.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116338318768263168"}"></div></p>
<p><strong>Why were British police suddenly able to enter the Ecuadorian embassy?</strong></p>
<p>Simply put, the police could go into the embassy for the first time in nearly seven years because the Ecuadorian government revoked Assange’s asylum. The “premises of a diplomatic mission” including buildings or parts of buildings and the land ancillary to it are, inviolable according to the <a href="http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf">Vienna Convention on Diplomatic Relations 1961</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116307375009431552"}"></div></p>
<p>However all such rights are subject to the right of a country to grant a waiver and the agents of a receiving state may enter diplomatic premises with the consent of the head of the mission. Such waivers are expected to be in writing and there will be a document to evidence this in the hands of the UK government.</p>
<p><strong>Why did the Ecuadorian government withdraw asylum from Assange?</strong></p>
<p>The Ecuadorian government issued a statement accusing Assange of “discourteous and aggressive behaviour” and of violating international asylum conventions. We don’t know exactly what he has done but Ecuadorian president Lenín Moreno said in a video statement that he had failed to abide by the norm of “not interfering in the internal affairs of other states”. </p>
<p>Assange has been a difficult guest in some ways. His continuous communication with the outside world and the way he <a href="https://www.nytimes.com/2016/07/27/us/politics/assange-timed-wikileaks-release-of-democratic-emails-to-harm-hillary-clinton.html">wrote himself into the legend</a> of the last US presidential elections would certainly have been against the intentions of Ecuador in granting him extraterritorial asylum.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116290826559262720"}"></div></p>
<p>Extraterritorial asylum – which is asylum granted outside the territory of the state itself – is indeed a contested practice in international law and the UK had been quite accommodating in recognising what is, in essence, a subpractice of Latin American states within international law. </p>
<p><strong>What will happen to Assange now?</strong></p>
<p>Although the British authorities appear to have given some assurances to the Ecuadorean authorities that Assange will not be extradited to the US, they will probably embark on a very truncated extradition process in conjunction with the US authorities and he may soon be in the US. It is unclear what president Donald Trump’s position on his case is, but the president has spoken in his favour in the past. There might be a clash of political interests between the US intelligence community and the presidency about what to do with Assange. </p>
<p><strong>Can the UK demand that the US commit to not executing Assange if he is extradited?</strong></p>
<p>Yes, this demand can be easily made and will most likely be granted because it is simply not in line with modern democracies to apply the death sentence in political and crimes of conscience cases. The US government has said he faces a maximum penalty of five years in prison. Actual sentences for federal crimes are typically less than the maximum penalties.</p><img src="https://counter.theconversation.com/content/115325/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gbenga Oduntan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Wikileaks founder has been removed from the Ecuadorean embassy after nearly seven years.Gbenga Oduntan, Reader (Associate Professor) in Law, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/994472018-07-12T02:52:43Z2018-07-12T02:52:43ZWhy New Zealanders are feeling the hard edge of Australia’s deportation policy<figure><img src="https://images.theconversation.com/files/227272/original/file-20180712-27024-1jd5fjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">More than 1,000 New Zealanders have been deported from Australia in the last 2 years.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/hand-jail-335630645">Shutterstock</a></span></figcaption></figure><p>Deportations of foreigners on temporary visas <a href="https://www.theguardian.com/australia-news/2015/nov/13/christmas-island-detention-why-is-australia-deporting-so-many-people">have been on the rise</a> in Australia <a href="https://www.sbs.com.au/news/why-new-zealand-is-furious-about-australia-s-deportations-policy">since the government amended its immigration law in 2014</a> to give the Minister for Home Affairs the power to expel people they view as a risk to Australian society.</p>
<p>This change in the law has had a disproportionate impact on New Zealanders, particularly those of Maori or Pacific Island descent. In the past two years, <a href="https://www.theguardian.com/australia-news/2018/mar/02/deporting-offending-new-zealanders-fair-and-just-turnbull-says">more than 1,000 New Zealanders have been forcibly deported from Australia.</a> And according to The New York Times, <a href="https://www.nytimes.com/2018/07/03/world/asia/new-zealand-australia-deportations.html">more than 60% of those who have been deported since 2015 are of Maori or Pacific Islander descent.</a> </p>
<p>In practice, what constitutes a “risk” is defined rather vaguely. This has led to a large number of New Zealanders – and others – being deported on grounds of “character”. <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s116.html">According to the law</a>, the minister only needs to find that a foreign-born person:</p>
<blockquote>
<p>is or may be, or would or might be, a risk to … the health, safety or good order of the Australian community or a segment of the community … or the health or safety of an individual or individuals. </p>
</blockquote>
<p>Many foreigners have had their visas automatically revoked if they’ve been convicted of a crime that carries a prison sentence of a year or more, or cumulative sentences totalling 12 months. Previously, only those with significant criminal records were removed from Australia. </p>
<p>Typically, people are notified that their visas have been revoked while they are serving a prison term. In some distressing cases, visa-holders have been intercepted <a href="http://www.abc.net.au/news/2015-10-13/deportations-from-australia-to-new-zealand-climb/6847510">after they’ve been released from jail</a>, or even taken from their distraught families in pre-dawn household raids.</p>
<h2>The plight of the ‘501s’</h2>
<p>Those who have been caught up in this wave of deportations call themselves “501s”, after <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s501.html">section 501 of the Migration Act</a>, which refers to one of the “character tests”. Many of them have only committed petty crimes but are forced to leave the country anyway, despite having lived in Australia for many years and having substantial family ties here.</p>
<p>The 501s are usually incarcerated in immigration detention centres during the appeal process. They can be kept as far away as Christmas Island, and detained for up to two years, while they wait for their cases to be decided. </p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-is-at-risk-of-losing-migrants-who-are-vital-to-the-health-of-our-economy-67455">Australia is at risk of losing migrants who are vital to the health of our economy</a>
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<p>Recently, Winston Peters, the acting prime minister of New Zealand, <a href="https://www.theguardian.com/australia-news/2018/jul/04/release-teenager-from-australian-immigration-detention-urges-acting-new-zealand-pm">called for the release of a 17-year-old New Zealander</a> who has been held in an immigration detention centre in Melbourne since March, saying the practice violates the <a href="https://www.ohchr.org/en/professionalinterest/pages/crc.aspx">UN Convention on the Rights of the Child</a>.</p>
<p>As part of our current study into the human impact of Australia’s deportation policy, we interviewed 31 New Zealanders who have been expelled since changes were made to the immigration law. </p>
<p>One deportee, a Cook Islander, told us:</p>
<blockquote>
<p>A lot of the boys, the other 501s, I think maybe they’re angry and frustrated and confused about the whole process, I see the grief and the pain that they’re going through, with their families over there, taken away from them all that sort of stuff, I think there’s going to be some sort of impact on their mentality… </p>
</blockquote>
<p>The trauma inflicted by the deportation process and the grief caused by the loss of contact with children and other loved ones has been a common theme with our interviewees. Stories of families being torn apart and of children being raised by only one parent were particularly distressing for them to recount.</p>
<p>One 49-year-old Maori man explained the toll on him and his family:</p>
<blockquote>
<p>The injustice of being a deportee, leaving our families behind, the impact of leaving families behind … young kids wondering why their father or their grandfather or their brother or their uncle is not coming back to them. They’re going to be psychologically suffering too – the kids, the girlfriend, the wives. </p>
</blockquote>
<p>Another theme that emerged was the perception that being held in detention centres before being exiled from Australia was a double punishment. The interviewees, including this 31-year-old New Zealander, see immigration detention centres as prisons in all but name: </p>
<blockquote>
<p>We got told once we’re home (from jail), we’re free. I served every day of my jail sentence. I walk out of jail a free man, and from my point of view and I’m sure others would agree, that’s your sentence served. You’ve paid your debt to society. </p>
</blockquote>
<p>It’s not difficult to imagine why deportees may feel this way, as many 501s are returned to a country where they have no family ties. They are stigmatised by the media in both countries and often have low or non-existent employment prospects. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/yes-the-us-border-policy-is-harsh-but-australias-treatment-of-refugee-children-has-also-been-deplorable-98706">Yes, the US border policy is harsh – but Australia's treatment of refugee children has also been deplorable</a>
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<p>Those deported to New Zealand are also subjected to a law passed in 2015 <a href="http://www.abc.net.au/pm/content/2015/s4355645.htm">in reaction to the steady stream of New Zealanders being sent back by Australia</a>. This law places people in a parole-like system, regardless of whether they were on parole or even committed a crime in Australia. </p>
<p>This can cause significant psychological trauma to people who have only recently exited prison. Another 31-year-old New Zealander spoke to us about his struggles after being sent home: </p>
<blockquote>
<p>When I came back here and was thrust into all this, it was sensory information overload and I said this to probation officer, I said, look here, I just want to go back to my hotel and just take the months of medication that I’ve been given and just go to sleep. I have no support available to me, I have no family. </p>
</blockquote>
<h2>Questions of race and cost</h2>
<p>After hearing these deportees’ stories, we believe it is legitimate to question whether the human costs of this policy outweigh the benefits. Does it breach the human right to family life enshrined in the <a href="https://www.ohchr.org/en/professionalinterest/pages/CCPR.aspx">International Covenant on Civil Political Rights</a>? Or does the law inflict double punishment, which would also be inconsistent with the covenant? </p>
<p>Broader questions can also be raised about the impact of the policy on marginalised groups in society. Prisons throughout the world are filled with the poor and people of colour. The 501s in Australia are often both. So, is this law then reminiscent of a <a href="http://www.nma.gov.au/online_features/defining_moments/featured/white_australia_policy_begins">White Australia Policy</a>?</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-cant-afford-to-turn-inwards-morrison-says-66303">Australia can't afford to turn inwards, Morrison says</a>
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<p>Finally, the costs associated with Australia’s deportation policy should also be examined. How much is it costing to detain these people, particularly in places like Christmas Island? Deportees are also told they cannot return to Australia if they win their appeal, unless they pay for their original deportation. These costs have been quoted as high as AU$22,000 per person.</p>
<p>The development of policies intended to protect Australians from future harm has been a strong feature of the legislative landscape in Australia over the past 20 years. The plight of crime victims should never be ignored, but that is the concern of the criminal justice system. When analysing the policy outcomes of the politics of risk, we should always consider carefully whether the means justify the ends, and the impact on human rights. </p>
<p>The 49-year-old Maori we interviewed made this point very clear in one sentence:</p>
<blockquote>
<p>We are people who have a criminal history, but we’re still human beings.</p>
</blockquote><img src="https://counter.theconversation.com/content/99447/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patrick Keyzer has previously received funding from Australian Research Council, Criminology Research Council and numerous federal and state departments, however, he has not received any funding for this particular research project.</span></em></p><p class="fine-print"><em><span>Dave Martin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Changes to Australian immigration law have resulted in a sharp increase in deportations, particularly among New Zealanders of Maori and Pacific Island descent.Patrick Keyzer, Professor and Head of the La Trobe Law School, La Trobe UniversityDave Martin, PhD Candidate, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/986792018-06-22T10:29:39Z2018-06-22T10:29:39ZPreventing crimes against humanity in the US<figure><img src="https://images.theconversation.com/files/224335/original/file-20180621-137750-1s7b2be.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Immigrant rights advocates speak against Trump's policies in New Mexico.</span> <span class="attribution"><span class="source">AP Photo/Russell Contreras, File</span></span></figcaption></figure><p>There are <a href="http://www.huffingtonpost.com/peter-reynosa/why-comparing-donald-trum_b_11097020.html">those who say</a> that comparing President Donald Trump’s rhetoric to that of <a href="https://www.washingtonpost.com/posteverything/wp/2016/07/25/the-theory-of-political-leadership-that-donald-trump-shares-with-adolf-hitler">Adolf Hitler</a> is alarmist, unfair and counterproductive. </p>
<p>And yet, there has been no dearth of such comparisons nearly one and a half years into his term. </p>
<p>Many commentators have also drawn parallels between the conduct and language of Trump supporters and <a href="http://www.huffingtonpost.com/entry/donald-trump-right-hand-salute_us_56db50d8e4b03a405678e27a">Holocaust-era Nazis</a>. Recent news of ICE agents <a href="https://www.theguardian.com/us-news/2018/jun/19/families-border-separations-trump-immigration-policy">separating immigrant families</a> and <a href="https://www.vox.com/policy-and-politics/2018/6/18/17474986/family-separation-border-video">housing children in cages</a> have generated <a href="https://www.timesofisrael.com/jews-separated-from-families-during-holocaust-condemn-us-border-policy/">further comparisons</a> by world leaders, as well as Holocaust survivors and scholars. Trump’s use of the word <a href="http://time.com/5316087/donald-trump-immigration-infest/">“infest”</a> to refer to immigrants coming to the U.S. is particularly striking. Nazis referred to infestations of Jewish vermin, and Rwandan Hutu’s labeled Tutsi as cockroaches.</p>
<p>In August 2017, in the wake of the <a href="https://www.nytimes.com/2017/08/13/us/charlottesville-virginia-overview.html">Charlottesville</a> violence, the president used a familiar <a href="https://www.washingtonpost.com/blogs/post-partisan/wp/2016/09/10/moral-equivalence-and-donald-trump/?utm_term=.3c94a721693a">rhetorical strategy</a> for signaling support to violent groups. He referenced violence on “<a href="http://www.cbsnews.com/news/trump-on-charlottesville-i-think-theres-blame-on-both-sides/">both sides</a>,” implying moral equivalence between protesters calling for the removal of Confederate statues and those asserting white supremacy. His comments gave white supremacists and neo-Nazis the <a href="http://www.huffingtonpost.com/entry/neo-nazi-daily-stormer-trump-charlottesville_us_59905c7ee4b08a2472750701">implied approval</a> of the president of the United States.</p>
<p>Many of these groups explicitly <a href="https://www.splcenter.org/fighting-hate/extremist-files/group/national-socialist-movement">seek to eliminate from the U.S.</a> African-Americans, Jews, immigrants and other groups, and are willing to do so through violence. As co-directors of Binghamton University’s <a href="https://www.binghamton.edu/i-gmap/">Institute for Genocide and Mass Atrocity Prevention</a>, we emphasize the importance of recognizing and responding to early warning signs of potential genocide and other atrocity crimes. Usually, government officials, scholars and nongovernmental organizations look for these signals in <a href="http://genocidewatch.net/alerts-2/new-alerts/">other parts of the world</a> – Syria, Sudan or Burma. </p>
<p>But what about the U.S.? <a href="https://www.nytimes.com/2018/06/20/us/politics/trump-immigration-children-executive-order.html">President Trump’s executive order</a> halting family separations provides Congress an opportunity to act. How the legislators respond will be an important indicator of where the U.S. is headed.</p>
<h2>Is it possible in the US?</h2>
<p>The term “genocide” invokes images of <a href="http://www.holocaustresearchproject.org/othercamps/auschwitzgaschambers.html">gas chambers</a> the Nazis used to exterminate Jews during World War II, the Khmer Rouge <a href="https://www.washingtonpost.com/news/worldviews/wp/2014/08/07/why-the-world-should-not-forget-khmer-rouge-and-the-killing-fields-of-cambodia/?utm_term=.afd11df0ea84">killing fields</a> of Cambodia and thousands of Tutsi bodies in the <a href="http://partners.nytimes.com/library/world/africa/052194rwanda-genocide.html">Kagera River</a> in Rwanda. On that scale and in that manner, genocide is highly unlikely in the United States.</p>
<p>But genocidal violence can happen in the U.S. It has happened. Organized policies passed by elected U.S. lawmakers have targeted both <a href="https://history.state.gov/milestones/1830-1860/indian-treaties">Native Americans</a> and <a href="https://www.nationalgeographic.org/interactive/slavery-united-states/">African-Americans</a>. Public policies defined these groups as not fully human and not protected by basic laws. Current policies treat immigrants the same way.</p>
<p>The threat of <a href="https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf">genocide</a> is present wherever a country’s political leadership tolerates or even encourages acts with an intent to destroy a racial, ethnic, national or religious group, whether in whole or in part. While genocide is unlikely in the United States, atrocities which amount to mass violations of human rights and crimes against humanity are evident. The U.N. defines <a href="http://www.un.org/en/genocideprevention/crimes-against-humanity.html">crimes against humanity</a> as any “deliberate act, typically as part of a systematic campaign, that causes human suffering or death on a large scale.” Unlike genocide, it does not need to include the actual destruction or intent to destroy a group.</p>
<p>According to <a href="https://www.dallasnews.com/opinion/commentary/2018/06/19/dallas-holocaust-survivorsees-reflection-faces-children-separated-parents">Holocaust survivors</a>, the current <a href="https://www.theguardian.com/us-news/video/2018/jun/19/children-separated-from-parents-cry-at-us-detention-centre-audio">visual and audio accounts</a> of children separated from their parents in border detention facilities reminds them of practices of the Nazis in ghettos and concentration and extermination camps.</p>
<p>The Holocaust took the international community by surprise. In hindsight, there were many signs. In fact, scholars have learned <a href="https://www.ushmm.org/confront-genocide/how-to-prevent-genocide/early-warning-project">a great deal</a> about the danger signals for the risk of large-scale violence against vulnerable groups.</p>
<p>In 1996, the founder and first president of the U.S.-based advocacy group <a href="http://www.genocidewatch.org/">Genocide Watch</a>, <a href="http://www.genocidewatch.org/aboutus/bydrgregorystanton.html">Gregory H. Stanton</a>, introduced a model that identified <a href="http://www.genocidewatch.org/genocide/8stagesofgenocide.html">eight stages</a> – <a href="http://genocidewatch.org/genocide/tenstagesofgenocide.html">later increased to 10</a> – that societies frequently pass through on the way to genocidal violence and other mass atrocities. Stanton’s model has its <a href="https://africacheck.org/2016/09/15/analysis-genocide-watch-thin-transparency-methodology/">critics</a>. Like any such model, it can’t be applied in all cases and can’t predict the future. But it has been influential in our understanding of the sources of mass violence in <a href="http://makuruki.rw/en/spip.php?article1344">Rwanda</a>, <a href="http://time.com/4089276/burma-rohingya-genocide-report-documentary/">Burma</a>, <a href="https://www.washingtonpost.com/news/acts-of-faith/wp/2016/03/15/the-u-s-house-just-voted-unanimously-that-the-islamic-state-commits-genocide-now-what/">Syria</a> and other nations.</p>
<h2>The 10 stages of genocide</h2>
<p>The early stages of Stanton’s model include “classification” and “symbolization.” These are processes in which groups of people are saddled with labels or imagined characteristics that encourage active discrimination. These stages emphasize “us-versus-them” thinking, and define a group as “the other.”</p>
<p><iframe id="oTlDh" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/oTlDh/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>As Stanton makes clear, these processes are universally human. They do not necessarily result in a progression toward mass violence. But they prepare the ground for the next stages: active “discrimination,” “dehumanization,” “organization” and “polarization.” These middle stages may be <a href="https://books.google.com/books?id=dn8nH-TFEyYC&pg=PA63&lpg=PA63&dq=dehumanization+as+predictor+of+genocide&source=bl&ots=1NcxXXnKTO&sig=65w1626sw7v2hAC5NjhZg8Eatco&hl=en&sa=X&ved=0ahUKEwi6_7fd4d7VAhVMxCYKHYTVDFA4ChDoAQglMAA#v=onepage&q=dehumanization%20as%20predictor%20of%20genocide&f=false">warning signs</a> of an increasing risk of large-scale violence.</p>
<h2>Where are we now?</h2>
<p>Trump’s political rhetoric helped propel him into office by playing on the fears and resentments of the <a href="https://theconversation.com/donald-trump-and-the-rise-of-white-identity-in-politics-67037">electorate</a>. He has used derogatory <a href="http://www.huffingtonpost.com/entry/9-outrageous-things-donald-trump-has-said-about-latinos_us_55e483a1e4b0c818f618904b">labels for certain religious and ethnic groups</a>, hinted at <a href="http://www.cnn.com/2017/07/03/politics/trump-conspiracy-theories/index.html">dark conspiracies</a>, winked at <a href="http://mashable.com/2016/03/12/trump-rally-incite-violence/#4xz9X6b1Tiqp">violence</a> and appealed to <a href="https://www.splcenter.org/20170427/100-days-trumps-america">nativist and nationalist sentiments</a>. He has promoted discriminatory policies including <a href="https://www.nytimes.com/2017/03/15/us/politics/trump-travel-ban.html?_r=0">travel restrictions</a> and <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/07/26/trump-just-eviscerated-his-claim-to-being-an-lgbt-ally/">gender-based exclusions</a>. </p>
<p>Classification, symbolization, discrimination and <a href="https://humanrightspolicy.org/2017/05/07/president-trumps-dehumanizing-rhetoric-represents-a-lingering-american-problem/">dehumanization</a> of Muslims, Mexicans, African-Americans, immigrants, the media and even the political opposition may be leading to polarization, stage six of Stanton’s model. </p>
<p>Stanton writes that polarization further <a href="http://www.genocidewatch.org/images/8StagesBriefingpaper.pdf">drives wedges</a> between social groups through extremism. Hate groups find an opening to send messages that further dehumanize and demonize targeted groups. Political moderates are edged out of the political arena, and extremist groups attempt to move from the former political fringes into mainstream politics.</p>
<p>Do Trump’s implied claims of a moral equivalence between neo-Nazis and counterprotesters in Charlottesville move us closer to the stage of polarization? </p>
<p>Does housing children in cages at border detention facilities in the name of deterrence represent a deepening dehumanization?</p>
<p>Certainly, there are reasons for deep concern. Moral equivalence – the claim that when both “sides” in a conflict use similar tactics, then one “side” must be as morally good or bad as the other – is what logicians call an <a href="https://www.amazon.com/Informal-Logical-Fallacies-Brief-Guide/dp/0761854339">informal fallacy</a>. Philosophers take their red pens to student essays that commit it. But when a president is called on to address his nation in times of political turmoil, the claim of moral equivalence is a lot more than an undergraduate mistake. </p>
<p>Similarly, when warehousing children in cages and tent cities is justified as a policy of deterrence, this is more than an academic policy debate. We suggest this is a deliberate effort to dehumanize and polarize, and an invitation to what may come next.</p>
<p>While the U.S. may not be on the path to genocide in the sense of mass killings, it clearly is engaging in other crimes against humanity – deliberately and systematically causing human suffering on a large scale and violating <a href="https://www.nytimes.com/2018/06/05/world/americas/us-un-migrant-children-families.html">fundamental human rights</a>. </p>
<h2>Responding and preventing</h2>
<p>Polarization is a warning of the increased risk of violence, not a guarantee. Stanton’s model also argues that every stage offers opportunities for prevention. Extremist groups can have their financial assets frozen. Hate crimes and hate atrocities can be more consistently investigated and prosecuted. Moderate politicians, human rights activists, representatives of threatened groups and members of the independent media can be provided increased security. </p>
<p>Encouraging responses have come from the international community, the electorate, business leaders and government officials. German Chancellor Angela Merkel <a href="https://www.nytimes.com/2017/08/14/world/europe/charlottesville-far-right-trump-merkel.html">condemned the racist and far-right violence</a> displayed in Charlottesville, and U.K. Prime Minister Theresa May <a href="https://www.theguardian.com/us-news/2017/aug/16/theresa-may-joins-cross-party-criticism-donald-trump-charlottesville-speech">harshly criticized</a> Trump’s use of moral equivalence. More recently, Pope Francis and the governments of various countries have <a href="https://www.washingtonpost.com/world/pope-francis-criticizes-trumps-family-separation-policy-on-migrants-says-populism-is-not-the-solution/2018/06/20/65c15102-7472-11e8-9780-b1dd6a09b549_story.html?noredirect=on&utm_term=.f28d41218380">spoken out</a> about U.S. family separation practices. </p>
<p>The recent <a href="https://www.npr.org/2018/06/20/621726939/u-s-pulls-out-of-u-n-human-rights-council">withdrawal of the U.S. from the U.N. Human Rights Council</a> suggests that international pressure may not be effective. Domestic actors may have more luck.</p>
<p>Individuals and groups are following the recommendations presented in the Southern Poverty Law Center’s <a href="https://www.splcenter.org/sites/default/files/com_ten_ways_to_fight_hate_2017_web.pdf">guide to combating hate</a> in supporting victims, speaking up, pressuring leaders and staying engaged. Business leaders have also <a href="http://fortune.com/2017/08/14/ken-frazier-trump-charlottesville-response/">expressed their discontent</a> with Trump’s polarizing statements and actions. The American Academy of Pediatrics has gone so far as to label the immigrant family separations a form of <a href="http://thehill.com/latino/392790-american-academy-of-pediatrics-president-trumps-family-separation-policy-is-child">mass child abuse</a>. </p>
<p>Local governments are struggling to maintain their status as <a href="https://www.nytimes.com/2017/04/25/us/judge-blocks-trump-sanctuary-cities.html">sanctuary cities</a> or <a href="https://www.commondreams.org/news/2017/03/10/aclus-people-power-project-launch-cities-resistance-effort">cities of resistance</a>. These cities try to provide refuge for immigrants despite <a href="https://www.theguardian.com/us-news/2017/sep/28/sanctuary-city-raid-deportation-trump-immigration">ICE raids and arrests</a>. The general public and politicians of both parties and at all levels are <a href="https://www.theguardian.com/us-news/2018/jun/19/child-separation-camps-trump-border-policy-backlash-republicans">speaking out</a> about the separations, and it appears they may be heard. </p>
<p>In our assessment, these actions represent essential forms of resistance to the movement toward escalating atrocities. The <a href="http://time.com/5317703/trump-family-separation-policy-executive-order/">executive order</a> issued by President Trump this week provides the elected representatives in Congress with an important opportunity. Will they be complicit in or act to prevent further atrocities?</p>
<p>It also provides the general public an opportunity to strongly assert a commitment to human rights. How Congress responds will be a clear indicator of whether our democratic checks and balances are functioning to stop atrocities from escalating, or whether we are continuing down a dangerous path.</p><img src="https://counter.theconversation.com/content/98679/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s defense of harsh immigration tactics and dehumanizing language should ring alarm bells, according to two scholars who study how to prevent mass atrocities.Nadia Rubaii, Co-Director, Institute for Genocide and Mass Atrocity Prevention, and Associate Professor of Public Administration, Binghamton University, State University of New YorkMax Pensky, Co-Director, Institute for Genocide and Mass Atrocity Prevention, Professor, Department of Philosophy, Binghamton University, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/951292018-04-17T21:51:23Z2018-04-17T21:51:23ZThe deportation of Lucy Francineth Granados: A symbol of Canada’s rising anti-immigrant sentiment<figure><img src="https://images.theconversation.com/files/215196/original/file-20180417-163962-1it7aqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People arrived at the Immigration Detention Centre in Laval, Que., shortly after 3 a.m. on April 13 to protest the deportation of Lucy Francineth Granados. She was deported to Guatemala, accompanied by two Canada Border Services Agency officials and a doctor. </span> <span class="attribution"><span class="source">(Solidarity Across Borders)</span></span></figcaption></figure><p>On April 13, Montreal resident <a href="http://www.solidarityacrossborders.org/en/francais-face-a-un-blocus-festif-lasfc-coupe-une-cloture-pour-faire-sortir-lucy-granados">Lucy Francineth Granados was deported to Guatemala</a>. Despite mobilization by groups like Solidarity Across Borders and No One is Illegal, Granados was not allowed to stay in Canada.</p>
<p>The way the media portrays racialized immigrants plays an important role in these situations and in general exerts much power over how we imagine our nation. This is particularly true when an audience has little or no knowledge of the community being represented. </p>
<p>Journalists and media producers tend to use short-hand devices <a href="https://theconversation.com/american-style-deportation-is-happening-in-canada-94634">that portray good versus bad citizens and racial minorities as “others” who can never fit into Canada</a> or whose differences can only be tolerated if they become like “us.” For example, <a href="https://us.sagepub.com/en-us/nam/media-and-crime-in-the-us/book244315">crime TV shows are designed to intimidate populations</a> by scaring them with demonstrations of the negative outcomes of breaking laws. </p>
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Read more:
<a href="https://theconversation.com/american-style-deportation-is-happening-in-canada-94634">American-style deportation is happening in Canada</a>
</strong>
</em>
</p>
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<p>In this way, <a href="http://www.gmj.uottawa.ca/0902/v2i2_jiwani%20and%20dakroury.pdf">the mass media use different people to communicate symbolic messages</a>. Sometimes, the lack of cohesion in these messages demonstrates conflicting viewpoints, illustrating differences of opinions and mandates within government or news agencies, and thus maintaining a semblance of objectivity and balance.</p>
<p>At other times, though, such messages, especially when they revolve around issues like illegal immigration, tend to be quite uniform. </p>
<p>For example, in cases involving representations of racialized minorities, research shows how most mainstream media tend to either portray them as <a href="https://read.dukeupress.edu/social-text/article-abstract/18/4%2520(65)/25/32571/Sporting-FaithISLAM-SOCCER-AND-THE-FRENCH-NATION?redirectedFrom=fulltext">exceptional</a> cases of success, or more frequently, they are portrayed as <a href="https://books.google.ca/books?hl=en&lr=&id=ncJ2AwAAQBAJ&oi=fnd&pg=PR1&dq=Jiwani,+criminals&ots=SbSQzxAl4c&sig=kf-oMln6cQYSw-Z9BwTlaQmLp9c#v=onepage&q=Jiwani%252C%2520criminals&f=false">criminals or people who don’t fit in</a>.</p>
<h2>Lucy Granados was used as an example</h2>
<p>The government said Granados had committed a crime by remaining in the country for nine years as an undocumented worker after her initial application for refugee status was denied. Granados came forward and applied in the hope her status would be legalized. </p>
<p>This, in itself, was a risky move and it alerted the authorities right away that she had been residing in the country illegally. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/215197/original/file-20180417-163971-14vw3w5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protesters leave signs outside of the federal detention centre in Laval, Que., where Lucy Granados was being held before her deportation on April 13.</span>
<span class="attribution"><span class="source">(Solidarity Across Borders)</span></span>
</figcaption>
</figure>
<p>The government denied hearing Granados’s case to stay on humanitarian grounds. I believe <a href="https://www.thing.net/%7Erdom/ucsd/biopolitics/HomoSacer.pdf">Granados becomes the example of what the state will not tolerate</a>. Her deportation sends a message to other undocumented workers that if they come forward in order to seek legal status they too will be at a heightened risk of deportation.</p>
<p>The deportation of Lucy Granados and other undocumented workers and the way these stories are talked about needs to be contextualized within a wider set of issues. Primarily among these is the continued and growing <a href="https://scholar.google.com/scholar_lookup?title=Representing%20minorities%3A%20Canadian%20media%20and%20minority%20identities&author=M..%20Mahtani&journal=Canadian%20Ethnic%20Studies&volume=33&issue=3&pages=99-133&publication_year=2001">anti-immigration</a> sentiment that remains a consistent thread in the <a href="https://link.springer.com/article/10.1007/s12134-008-0062-z">nation’s fabric</a>. It is partly fuelled by the <a href="https://books.google.ca/books?hl=en&lr=&id=bd8cBQAAQBAJ&oi=fnd&pg=PP1&dq=stuart+hall+policing+the+crisis&ots=Mj3X3DWWoQ&sig=FrGoABbDHkNW4f_NjxQ0IK7nQkY#v=onepage&q=stuart%20hall%20policing%20the%20crisis&f=false">amplifying power</a> of the mainstream media and its reliance on <a href="https://books.google.ca/books?hl=en&lr=&id=jGHNDAAAQBAJ&oi=fnd&pg=PR5&dq=lance+bennett+news&ots=eyWlDy73dv&sig=fnNT0s_YcaJrtoZ9fm3DzwYfin8#v=onepage&q=lance%20bennett%20news&f=false">bureaucratic sources of power and authority</a> (government, police, courts).</p>
<h2>A wave of anti-immigration</h2>
<p>With recent media portrayals of Haitians and others <a href="https://globalnews.ca/news/3696080/misinformation-illegal-crossing-canada-wrong-information-campaign/">crossing the borders</a>, there is a heightened panic that the immigration system has broken down and that the country will be overwhelmed by its benevolence. </p>
<p>At the same time, the story is that Ottawa is doing what it can to stem the tide and to defuse the impact of <a href="https://globalnews.ca/news/3696080/misinformation-illegal-crossing-canada-wrong-information-campaign/">misinformation</a> about the immigration system. </p>
<p>This backdrop then informs the Granados case, but fails to rectify the situation. Rather, it simply underscores the reality that we have become like the United States in terms of expelling and deporting those we don’t consider as “fitting into” our nation.</p>
<p>The tide of anti-immigration sentiments is apparent in other instances. </p>
<p>For example, Québec Mosque shooter Alexandre Bissonnette shot and killed six Muslims and injured 19 others at the Québec Grand Mosque because he was afraid of an imminent terrorist attack and because as he said in court, “<a href="http://www.cbc.ca/news/canada/montreal/quebec-city-mosque-shooting-bisonnette-sentencing-1.4618414">the Canadian government was, you know, going to take in more refugees, you know, those who couldn’t go to the United States would end up here.”</a></p>
<p>Bissonnette was not simply reacting in a vacuum. He had heard news reports about Muslim terrorists, followed U.S. President Donald Trump’s incessant tweets and watched YouTube for information on guns. He was convinced his family was in danger of a terrorist attack. So, he chose to act first by annihilating what he thought was the threat. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/215198/original/file-20180417-163966-7g16wk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A family from Yemen crosses the U.S.-Canada border in Hemmingford, Que., in March, 2017.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Graham Hughes</span></span>
</figcaption>
</figure>
<p>The perceived threat was sparked by <a href="https://www.theguardian.com/world/2018/apr/13/canada-mosque-shooter-alexandre-bissonnette-trudeau-trump-refugees-travel-ban">Prime Minister Justin Trudeau’s statement welcoming refugees</a> following Trump’s travel ban prohibiting visitors and immigrants from seven Muslim majority countries. Framed in this way, his actions are rendered legible — though insane.</p>
<p>The refugees and potential terrorists (read Muslims) are then to be blamed for Bissonnette’s mental decline and his murderous actions. To be sure, <a href="https://www.ctvnews.ca/canada/record-number-of-refugees-admitted-to-canada-in-2016-highest-since-1980-1.3382444">Canada has accepted a high number of refugees</a> but are these refugees to be blamed for seeking entry and for striving for a better life? </p>
<h2>Exceptional immigrants versus criminal ones</h2>
<p>The media’s framing of refugees and immigrants as threats has been widely documented in <a href="https://spssi.onlinelibrary.wiley.com/doi/full/10.1111/josi.12027">existing studies</a>, both here and <a href="http://www.jbe-platform.com/content/journals/10.1075/jlp.9.1.01kho">in other</a> <a href="https://www.taylorfrancis.com/books/e/9781134584055/chapters/10.4324%2F9780203458549-9">Western nations</a>. These, overwhelmingly, <a href="https://www.taylorfrancis.com/books/e/9781134584055/chapters/10.4324%2F9780203458549-9">negative depictions</a> fuel moral panics when refugees and immigrants are portrayed as flooding into the nation. The <a href="https://books.google.ca/books?hl=en&lr=&id=qh0-CgAAQBAJ&oi=fnd&pg=PP1&dq=van+dijk+racism&ots=-92fMLndTA&sig=uEh-svrgm8Oh8p91pircExIvCX0#v=onepage&q=van%20dijk%20racism&f=false">language of the stories</a> suggest an “avalanche,” or “invasion” that threatens the nation. The pictures accompanying such stories tend to present the refugees in huddled masses, or as masses on the move.</p>
<p>The stories rarely touch on the contributions of these immigrants and refugees. Many of them are sponsored by families, organizations and concerned others. They pay taxes, buy goods and do the jobs that no one else wants to do. Though trained as doctors, lawyers and engineers, many end up driving taxis, opening small businesses like restaurants and feeding the economy in other ways. Their contributions feed the nation, supplement our reserves, supplying the funds that will sustain our future be it through social programs or the consumer economy.</p>
<p>Just as race exceptionalism in media representations can work to make icons of particular success cases, so can stereotyping make them appear as if they are all the same. The illegal refugee comes to stand in for all refugees, as does the illegal immigrant.</p>
<p>In a recent interview I participated in on <a href="http://www.iheartradio.ca/">CJAD Radio</a> (popular among Anglophones in Montréal), <a href="http://www.iheartradio.ca/cjad/shows/the-leslie-roberts-show-1.2220633">Neil Drabkin, an immigration lawyer responded to my analysis</a> about the diverging reality between the rhetoric of Canada as a benevolent nation and the reality of the brutality of deportation by beginning his interview segment with the following statement: “Let me put down my violin.” </p>
<p>His statement was designed to convey to listeners a dismissal and trivialization of my argument and position me as one of a “bleeding heart liberal” telling a sob story. </p>
<p>I wonder how all those Canadians who have privately sponsored Syrian and other refugees, or families that have sought to reunite with their loved ones would feel about this. And what about the painstaking work that non-profit organizations do about safeguarding the rights of those who have no rights in this country?</p>
<p>Permanent resident status should be based on more than formal rules and regulations. It should take into consideration the work that people have done for the good of society, not just in terms of economic investment, but in terms of working towards a more equitable and just social order. To wit, at the end of the day, the nation state is a constructed entity - real sovereignty belongs to Indigenous nations. Yet, as history reveals, the <a href="http://journals.sagepub.com/doi/abs/10.1177/0192512109102435">dispossession of Indigenous sovereignty</a> is the state’s way of ensuring a particular kind of nation.</p>
<p>Had the existing structures taken this into account, Lucy Granados who worked for nine years in Montréal to support women workers, might have had her deportation order stayed.</p><img src="https://counter.theconversation.com/content/95129/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yasmin Jiwani has received funding from the Social Sciences and Humanities Research Council.</span></em></p>Montreal resident Lucy Francineth Granados was deported to Guatemala last week. Media representations play an important role in these situations and exert much power over how we imagine our nation.Yasmin Jiwani, Professor of Communication Studies; Research Chair on Intersectionality, Violence and Resistance, Concordia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/806032017-07-16T19:59:14Z2017-07-16T19:59:14ZAustralia doesn’t have a constitutional right protecting freedom of the person – it needs one<figure><img src="https://images.theconversation.com/files/177255/original/file-20170707-26461-11nw22n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Migration legislation does not require judicial authorisation for a person to be deprived of their freedom. </span> <span class="attribution"><span class="source">AAP/Dean Lewins</span></span></figcaption></figure><p>The recent <a href="http://www.canberratimes.com.au/federal-politics/political-news/two-australian-citizens-wrongly-sent-to-immigration-detention-department-confirms-20170704-gx4rss.html">wrongful detention of two Australian citizens</a> by immigration authorities highlights that our Constitution offers inadequate protection for freedom of the person. </p>
<p>This is not the first time Australian citizens have been unlawfully detained. In 2001, <a href="http://www.theage.com.au/news/Editorial/The-regrettable-case-of-Vivian-Alvarez-Solon/2005/05/13/1115843369186.html">Vivian Solon</a>, who had suffered a head injury, was deported even though she told immigration officials she was an Australian citizen. In 2004, <a href="http://www.smh.com.au/news/national/cornelia-rau-the-verdict/2005/07/17/1121538868891.html">Cornelia Rau</a>, also an Australian citizen, was held in immigration detention after she was unable to identify herself because of mental illness.</p>
<p>The government could do this because migration legislation does not require judicial authorisation for a person to be deprived of their freedom. The Solon and Rau cases <a href="http://www.ombudsman.gov.au/news-and-media/media-releases/media-release-documents/commonwealth-ombudsman/2007/67">were found to be</a> only two of more than 247 instances of unlawful detention that had occurred over the previous 14 years.
The extent of the government’s power was revealed in 2015, when the Department of Immigration announced <a href="http://www.theage.com.au/victoria/border-force-fiasco-operation-fortitude-cancelled-as-protest-shuts-down-melbourne-streets-20150828-gjah7n.html">Operation Fortitude</a>. This would have involved stopping people randomly on Melbourne’s streets to check their migration status. The operation was cancelled only after mass public protest.</p>
<p>So, anyone who is walking in the Melbourne CBD and speaks with a strange accent, or has suffered a brain injury, or is experiencing mental illness and cannot demonstrate a right to be in Australia, is liable to detention at best – and deportation at worst – without recourse to the courts.</p>
<h2>Where the Constitution lacks</h2>
<p>The reason the government has this power is because Australia’s Constitution does not adequately protect individual liberty.</p>
<p>In 1992, the High Court <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/64.html">held</a> that separation of powers means that only courts can declare people guilty of crimes and imprison them. It therefore held that parliament cannot enact laws authorising the government to do that. </p>
<p>However, the court said that parliament can authorise the government to order so-called “non-punitive” detention - for example, detention for immigration purposes or in cases of communicable diseases. </p>
<p><a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s75.html">Section 75(v)</a> of the Constitution allows someone to challenge government decisions on administrative grounds. However, the High Court has held that this section does not allow the courts to decide whether the exercise of power is reasonable. On this basis, <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html">it found</a> it would be lawful to detain someone under the Migration Act forever. </p>
<p>The court <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1997/27.html">has also held</a> that there may be many other – undefined – circumstances in which people can be detained without court approval. </p>
<p>The concept of “non-punitive” detention is vague. It is also oxymoronic: all detention is surely punitive to the person who experiences it. It leads to the bizarre situation that the law provides you more protection if you have committed a crime than if you have not.</p>
<p>It is <a href="http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39">fundamental in a free society</a> that the law should not allow the state to deprive a person of liberty other than through due judicial process.</p>
<h2>What a protection could look like</h2>
<p>The <a href="https://www.liberal.org.au/our-beliefs">Liberal Party</a> proclaims its belief in “the inalienable rights and freedoms of all peoples” and a “just and humane society”. Yet it marked the 800th anniversary of the Magna Carta – the founding document protecting rights in western democracies – by <a href="http://www.smh.com.au/comment/tony-abbott-move-to-deprive-australians-of-citizenship-suggests-a-dangerous-authoritarian-mindset-20150610-ghl4pq.html">drafting legislation</a> authorising deprivation of citizenship without the need to go to court.</p>
<p>Labor has been no less resistant to the idea of constitutional rights. The Rudd government’s terms of reference to its <a href="http://www.austlii.edu.au/au/journals/NSWBarAssocNews/2009/54.pdf">inquiry into human rights</a> specifically excluded consideration of putting new rights into the Constitution. </p>
<p>Opposition by politicians to constitutional rights is obviously self-serving, and it is often absurd as well. Former NSW premier Bob Carr objected to a Bill of Rights on the ground that it would create a <a href="http://apo.org.au/node/6318">“lawyer’s picnic”</a>. </p>
<p>In a free society, it ought never to be lawful for a government to detain people by executive order alone. </p>
<p>The only effective way to protect liberty of the person is to deny the government the power to detain, unless it can demonstrate to a court that there are reasonable grounds for deprivation of liberty. And the only effective way to prevent the government from enacting legislation to give itself that power is to create a constitutional right protecting freedom of the person. </p>
<p>This right could be phrased as:</p>
<blockquote>
<p>Everyone has the right to due process of law and not to be unreasonably deprived of personal liberty.</p>
</blockquote>
<p>In a system where the burden appears to lie on the individual to prove they are lawfully in Australia rather than on the state to prove they are not, we are all vulnerable to deprivation of liberty.</p>
<p>The right to individual liberty is also a basic requirement of human dignity. That a person has been deprived of a right by a democratically elected parliament does not diminish the assault on their dignity. </p>
<p>The concept of a free society inescapably requires that limits be imposed on the will of the majority. That is why the power of parliaments has to be restrained. </p>
<p>This is what opponents of rights who trot out the objection to “unelected judges” overturning parliament’s will fail to grasp. It is precisely because judges are independent of the will of political majorities that ultimately only the courts can effectively protect individual freedom.</p><img src="https://counter.theconversation.com/content/80603/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bede Harris does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a free society, it ought never to be lawful for a government to detain people by executive order alone.Bede Harris, Senior Lecturer in Law, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/612422016-06-22T10:01:21Z2016-06-22T10:01:21ZWill Donald Trump’s call to profile Muslims offend voters?<p>After the horrific mass shooting at a gay nightclub in Orlando on June 12, presumptive Republican presidential nominee Donald J. Trump reiterated his concern that Muslim immigrants in the U.S. could be a security risk. </p>
<p>The shooter, Omar Mateen, a U.S.-born citizen whose parents came to the United States from Afghanistan, pledged his support for the Islamic State, or ISIS, during the attack. Not only did Trump promise to suspend immigration from parts of the world tied to terrorism against the United States, he also charged that Muslim Americans were complicit in the shooting, <a href="http://www.vox.com/2016/6/13/11925122/trump-orlando-foreign-policy-transcript">stating</a>:</p>
<blockquote>
<p>They know what is going on. They know that he was bad. They knew the people in San Bernardino were bad. But you know what, they didn’t turn them in and we had death and destruction.</p>
</blockquote>
<p>A few days later, he called for increased surveillance of American mosques, <a href="http://www.reuters.com/article/us-usa-election-idUSKCN0Z12AS">saying</a>:</p>
<blockquote>
<p>We have to maybe check, respectfully, the mosques and we have to check other places because this is a problem that, if we don’t solve it, it’s going to eat our country alive. </p>
</blockquote>
<p>He later added that profiling of Muslims in the U.S. is “<a href="https://www.washingtonpost.com/news/post-politics/wp/2016/06/19/donald-trump-calls-profiling-muslims-common-sense/">common sense</a>.” </p>
<p>In its coverage of his reaction, <a href="http://www.nytimes.com/2016/06/14/us/politics/donald-trump-hillary-clinton-speeches.html">The New York Times wrote</a>, “he was wagering that voters are stirred more by their fears of Islamic terrorism than any concerns they may have about his flouting traditions of tolerance and respect for religious diversity.” </p>
<p>Many elected Republicans have distanced themselves from Trump’s remarks, but what about the American public? </p>
<p>I’m a political scientist who studies public opinion about policies related to America’s changing ethnic composition, and <a href="http://dx.doi.org/10.1177/0002764209338786">research I conducted a few years</a> after the 9/11 terrorist attacks may shed some light on how Trump’s reaction to the mass shooting are resonating with the electorate.</p>
<h2>Views on detention, internment</h2>
<p>In a nationally representative survey conducted in 2004, I asked respondents:</p>
<blockquote>
<p>Since Sept. 11, some law enforcement agencies have stopped and searched people who are Arab or of Middle Eastern descent to see if they may be involved in potential terrorist activities. Do you approve or disapprove of this kind of profiling? </p>
</blockquote>
<p>I also asked half of the respondents:</p>
<blockquote>
<p>If there were another terrorist attack in the U.S. with Arab or Middle-Eastern suspects, would you support or oppose allowing the government to hold Arabs who are U.S. citizens in camps until it can be determined whether they have links to terrorist organizations?“ </p>
</blockquote>
<p>The other half was asked the same question but with "Arab immigrants” replacing “Arabs who are U.S. citizens.”</p>
<p>My questions asked about people who are Arab or Middle Eastern, while Donald Trump’s comments are targeted at Muslims. These groups are not the same. But I believe my survey results shed some light on how Americans view Trump’s comments because <a href="https://books.google.com/books?isbn=0815631529">many Americans</a> have trouble identifying the difference between these groups. Indeed, many <a href="http://www.theatlantic.com/politics/archive/2015/01/the-trouble-with-wearing-turbans-in-america/384832/">Americans even confuse</a> Sikhs, adherents of a religion originating in Southeast Asia, with Arabs and Muslims.</p>
<p>Overall, the results of my research showed broad support (66 percent) for increased searches of people who are Arab and Middle Eastern. </p>
<p>The results also showed that roughly one-third of Americans supported placing people in camps until their innocence can be determined: 34 percent supported interning Arab and Middle Eastern immigrants while 29.5 percent supported interning Arab and Middle Eastern American citizens. Most of this support came from whites, Republicans and people without a college degree. </p>
<p>According to my survey, the people who were more likely than others to support profiling were people who:</p>
<ul>
<li>feared they or someone they know might be a victim of a terrorist attack</li>
<li>felt that whites are discriminated against, and </li>
<li>thought that in order to be a “true American” someone must be Christian, white, and born in America. </li>
</ul>
<p>The aggregate level of support for internment was around 30 percent. </p>
<p>Among the six percent of respondents who strongly agreed that “true Americans” are Christian, white and born in America, support for interning Arab or Middle Eastern Americans was 73 percent. </p>
<p>Among the 25 percent of respondents who said it was somewhat important that Americans have these characteristics, support for interning U.S. citizens of Arab or Middle Eastern origin was 51 percent.</p>
<p>These findings are particularly relevant for our current election. Exit polls from the 2016 Republican primaries show that Trump has done particularly well among <a href="http://www.theatlantic.com/politics/archive/2016/03/who-are-donald-trumps-supporters-really/471714/">whites without college degrees</a> who feel that they are being left behind. </p>
<p>Trump’s call to “make America great again” hearkens back to a mythical past that disaffected whites yearn for. There is likely an overlap between the whites in my study who resist defining American identity as inclusive of people with nonwhite, non-Christian and non-European origins and who think that white Americans are getting the short end of the stick. </p>
<p>Put simply, I believe the groups most attracted to Trump throughout the primaries are the same groups that were particularly likely to support ethnic profiling back in 2004. </p>
<p>Some portion of the electorate is made up of voters who welcome Trump’s rejection of pluralism and inclusivity in the name of national security. The question now is how big this group is – and whether they will turn out to vote. Will Trump’s stance mobilize opposition and increase the ranks of voters who support diversity and inclusion? We won’t know the answer to these questions until November.</p><img src="https://counter.theconversation.com/content/61242/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>For the research described here, Deborah Schildkraut received funding from the Russell Sage Foundation. </span></em></p>How is the electorate reacting to Trump’s call for surveillance of American mosques? A survey taken after the 9/11 attacks suggests some answers.Deborah Schildkraut, Professor of Political Science, Tufts UniversityLicensed as Creative Commons – attribution, no derivatives.