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Challenge to Treatment of Refugees in Detention

How harsh is harsh? And how cruel is cruel?

Should immigration detention centres be operated on the model of prisons?

And are people who are being held in immigration detention facilities being treated with unnecessary severity?

Would Australians accept the practices that are being carried out in detention centres “out of sight”, and therefore “out of mind”, if those practices were exposed to the daylight of public scrutiny?

Well, consider the following case, SZRWS v Minister for Immigration & Ors (2017) FCCA 3101 (22 December 2017).

These proceedings in the Federal Circuit Court involved a challenge to a direction that was issued by the Australian Border Force that sought to restrict the types of foods that can be brought to persons being held in immigration detention by their visitors.

This direction (Australian Border Force Directive 016 -2017) was issued on 11 August 2017, and came into effect on 11 September 2017.

This directive sought to prohibit food from being brought to detainees during family visits unless it was:

  • Commercially packaged so it could not be tampered with, labeled, factory sealed and provided with a valid “expiry date”;
  • The packaging consisted only of a carton or soft plastic, and was not made of glass or metal;
  • The amount of food was limited to a quantity that could be consumed during the visit; and
  • The food was consumed only in the visiting area and not taken back to a detainee area.

The directive further prohibited the following kinds of foods from being brought to detainees during visits:

  • Perishable foods;
  • Frozen meals;
  • Fresh fruits and vegetables;
  • Tinned foods; and
  • Home cooked meals.

This directive was challenged in court by a detainee who is being held at the Villawood Detention Centre near Sydney.

He claimed that he had been held in detention, and thus separated from his family, for 5 years (!); that prior to the introduction of this direction, he had been able to spend the whole day with his family, but the direction had made it impossible for the family to eat culturally appropriate foods, and thus limited the time they could spend with him as there was nothing culturally appropriate for them to eat;  and that the sharing of a meal was important to help his family connect and enjoy some time together resembling real family time despite the circumstances of their being separated. 

The applicant in SZRWS was successful in obtaining an “interlocutory” (temporary) injunction to restrain the implementation of this direction against the person in detention.

And just recently, late last week, the Full Court of the Federal Court dismissed an appeal by the Minister for Home Affairs against this injunction – see Minister for Home Affairs v SZRWS (2018) FCAFC 51.

How far will the government go?  We have seen, in another case, that the government has introduced a policy enabling the confiscation of mobile phones and SIM cards from detainees. A challenge to that policy relating to mobile phones was rejected by Judge Smith of the Federal Circuit Court in the case of SZSZM v Minister for Immigration and Border Protection (2017) FCCA 815i¸while a parallel challenge to this policy relating to the confiscation of mobile phones (in the case of ARJ17 v Minister for Immigration and Border Protection has apparently not yet been resolved).

What do you think of this?

Is it really necessary for the government to prohibit the families of detainees from bringing them home-cooked food to be eaten during visits?  The government defended its position here by claiming that the direction was necessary to protect the health of detainees, because: 1) cooked and raw food can become quickly contaminated with bacteria and can cause illness if left at room temperature; and 2) if food is not commercially packaged and sealed, there is a risk of “controlled and prohibited items entering the detention centre”.

Should an immigration detention centre be run just like a prison? Or not?

At least in respect of foods brought during visitation periods, the Federal Courts have answered this question, at least for the moment, that they should not be.

Your thoughts on this?

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  • Guest
    Ganasan Tuesday, 10 April 2018

    I have visisted the prison and the IDC- I find no difference between this two. Pretty appalling the asylum seekers are being treated like criminals. Australian government over spending money on detainees. SERCO is very happy. Poor tax payers!

  • Guest
    kevin Tuesday, 10 April 2018

    unfortunately there has to be detention centres some refugees are criminals many are not regarded as serious criminals but are generally regarded to have broken some Australian laws that is why they are in detention until their case has been resolved but to compare detention centers to prisons is emotive rubbish most detention staff are personable & detainees mostly have a lot more freedom than if they were in prison many prison staff are also professional are in general more stricter & controlling of convicted prisoners the above rules are there for a reason a detention centre is a secure area & certain types of food & other things are prohibited for valid reasons as for full day family visits contraband has been smuggled in through some of these visits in the past staff resources are both limited it is a place of security minimal standards have to apply, you are in a DETENTION CENTRE not a half way house

  • Guest
    andreas Monday, 06 August 2018

    In response to "Kevin", I would like to make a few points clear.
    He is broadly correct there are a wide demographic of people who do include many criminals-the "501" legislation was after all a direct effort to remove those with spent convictions.
    This is the place where the immigration appeal decisions are made.
    He is also right as regards the general behaviour of staff in his comparisons with prisons.
    I am pleased to report that whether you are in prison or in detention, how you behave towards others is almost without exception, reflected back in kind. And in both cases the vast majority simply want to get on with their lives and have a cup of tea. The existence of mean, cruel, or just the spectacularly dysfunctional; not to mention the plethora of mental midgets that work in either circumstance, is very similar. Short of the rare occasions when either a prison officer or detention officer respond to an emergency, I would challenge Kevin to show me one single government department--or the best example: a local council--where the proportions and exhibition of human behaviour is different?
    Human nature is the same everywhere.
    Where unimaginative, unempathetic & myopic people such as Kevin always fail miserably, is in the detail-small and large. Do they ignore thinking things through on purpose to relieve a personal issue, is a question i often end up asking myself, or are they such intellectual infants they cannot carry the thoughts? If I sound pissed off it's because ignorance is far worse and more dangerous than an unambigous and clear threat and leads to violent clusterfucks where original reasons become moot. I've seen those and also been an involuntary, collateral "participant" in their consequences.
    Kevin fails to realize two things:
    1. Detainees are not, under the LAW, criminals. We are simply not. That definition expires on release from prison, and I don't think there is utility in referring to people in our daily lives by the definition of either "non-criminal" or "criminal". There's as much as when introducing 5 year-old John, by always prefacing with 5-year-old "little Johnny's" intentional transgression in "stealing" a lolly the month before.
    2. A detainee with a criminal past has been judged by Kevin's peers-professionals with volumes of experience-to be fit for release. Since most cases involve parole (whereupon visas were cancelled), society-that would be you, Kevin, in case you didn't notice-accepts the punishment has been served and that's that!
    3. Whatever Kevin thinks is the definition of a detainee, it remains someone who is "detained". That's it. There is no more to it. There's no automatic causal relationship with it having to mean barbed wire above where I have lunch (Villawood). I'm still technically on parole and could just as easily spend it at home, working and looking after elderly parents. Ironically, the department would concede almost none of us to be hard to find (those with previous convictions) because all we want is to go home-they have our addresses.
    Go compare with some european countries and especially the Nordic ones, and you'll find the situation vastly different. Commonsensical, human and infinitely more practical and less expensive.
    3. WE ARE IN PRISON. There is physically no difference whatsoever. Some maximum security prisons are very strict, but with the exception of mobile phones; the ability to purchase some outside items to be brought in, then no, Kevin, you're dead wrong.
    In fact they check our ID's more thoroughly, and there are vastly more officers around.
    In prison in minimum security, the set ratio required was 4 officers for 110 inmates (M.N.C.C.C.). The ERT (emergency response team) officers are larger in number than they had similar in prison; they're visible on site 24 hours and patrol in contrast to prisons.
    Please have a cup of tea and take five minutes, Kevin, to ponder. Anything.

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