ASYLUM SEEKERS RESOURCE CENTRE SUBMISSIONS TO THE PALMER INQUIRY

Transcription

1 1 Asylum Seeker Resource Centre 67Jeffcott Street, West Melbourne, Victoria, 3003 Phone: Fax: ASYLUM SEEKERS RESOURCE CENTRE SUBMISSIONS TO THE PALMER INQUIRY PRELIMINARY MATTERS 1. In this submission we have concentrated on what we perceive to be the failure by the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) and Global Solutions Limited (GSL) to properly diagnose and treat Ms Rau s mental illness while in immigration detention in Baxter (items three and four of the Terms of Reference for the Inquiry). We do not comment on the failure by DIMIA to properly identify Ms Rau (ie items one and two of the Terms of Reference for the Inquiry). Self evidently the current arrangements for identifying missing persons in Australia must be improved. 2. It is our view that there are a range of structural defects with the system governing the treatment of the mentally ill in immigration detention. Unless these inherent structural defects in Australia s immigration detention regime are recognised and addressed by the Inquiry, it is likely that similar incidents will be repeated in the future. 3. As the legislative, regulatory and contractual arrangements governing the provision of mental health services to immigration detainees by DIMIA and GSL are known to the Inquiry, we have not repeated them in the body of this submission. Assertions about the regulatory regime made in this submission are based on our understanding of relevant law and procedure. 4. Factual information referred to in this submission concerning Ms Rau s circumstances is sourced from the transcript of the Senate Legal and Constitutional Committee Estimates (Senate Estimates) from 15 February 2005 as well as from information received by the ASRC about Ms Rau from detainees at Baxter and other individuals and organisations. 5. As a preliminary comment we note remarks made by Immigration Minister Amanda Vanstone during Senate Estimates concerning repeated contact

2 2 made by refugee advocates with the Minister s Office about Ms Rau prior to her identification on 3 February It was suggested by the Minister that such contact was not helpful or useful. In late January 2005, after having exhausted other avenues to draw attention to Ms Rau s plight, concerned individuals contacted The Age about Ms Rau (then known as Anna, a German tourist). On 31 January 2005 The Age ran the story which enabled Ms Rau s family to identify her. Without such external intervention it is highly likely that Ms Rau would have remained unidentified in immigration detention. REGARDING CORNELIA RAU STRUCTURAL ISSUES CONCERNING THE MENTAL HEALTH OF PERSONS IN IMMIGRATION DETENTION B: Duty of care and inadequate regulatory framework of detention centres 6. The Full Federal Court has pointed out that the extent of DIMIA s duty of care to detainees is unclear as the immigration detention regime itself is largely unregulated. Unless and until an adequate regulatory framework is developed governing detention centres, persons such as Ms Rau will continue to become lost in the system and have fundamental rights denied or threatened. 7. In Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 (29 April 2004) the Court stated that: What is surprising is that there are virtually no provisions, either in the Act or in the Migration Regulations which purport to regulate the manner and conditions of that detention. As I mentioned in my reasons for judgment in Alsalih v Manager Baxter Immigration Detention Facility [2004] FCA 352 at [47]-[48] it is usual when powers of detention are conferred for the Parliament to make provision for the manner of the exercise of those powers. There are at least two reasons for this. The first is to curtail the possible abuse of the powers. The second is to protect those who have to exercise them by providing some guidance as to what the powers are The failure to make regulations in relation to the operation and regulation of detention centres necessarily results in uncertainty as to what powers and obligations apply. That uncertainty involves risks not only to those detained in detention centres, but also to those employed there. In relation to those employed there they are subject not only to public law duties, but also to tortious and (perhaps) even criminal liabilities if they breach the duties imposed on them by law. See, for example, the reasons of the Justices of the High Court in Sanders v

3 3 Snell (1998) 196 CLR 329 and of the South Australian Supreme Court in Question of Law Reserved (No 2 of 1996) (1996) 67 SASR The Victorian Court of Appeal has also commented on the importance of transparent and accountable management of places of incarceration: There is little that is more obviously in the public interest than the issue of the liberty of persons and it is an important aspect of that interest that the process of incarceration of persons and what happens to them It is inherent in the democratic system that important issues of the nature of prisons and their management be publicly transparent so that there can be the best possible public understanding, awareness and if need be, debate. (Re Coburg Brunswick Community Legal and Financial Counselling Centre v Department of Justice (1998) 15 VAR at 230 per Kellam J and Galvin DP. Quoted with approval by Phillips JA in Secretary, Department of Justice v Coburg Brunswick Community Legal and Financial Counselling Centre (1999) 16 VAR 1 at 3) 10. In the Mastipour case, the Federal Court attempted to define the basic parameters of the duty of care within immigration detention. The Full Court concluded that: In the absence of such a detailed regulatory regime there is no obvious reason for limiting the common law duty of care by reason of some inferred power or duty of the Secretary. The power and the duty of the Secretary is a power and duty to detain. In determining the extent of the powers inherent in, or necessarily implied by, the power to detain there are at least two issues that need to be considered and balanced: (a) The power of detention is conferred for the purpose of preventing an unlawful non-citizen entering the Australian community before their entitlement to do so is established and, if it is not established, for the purpose of their removal if possible; and (b) A detainee retains all of his or her civil rights other than those that are only available to a citizen, and other then those taken away by law, either expressly or by necessary implication. 11. The ASRC contends that in Ms Rau s case DIMIA have breached their duty of care to Ms Rau by failing to accurately diagnose her mental illness and through their inappropriate treatment of her whilst under their care. C: Structural failures in recognising mental illness in immigration detention 12. It is not surprising to the ASRC that neither DIMIA, GSL or their medical subcontractors properly diagnosed Ms Rau s mental illness in a timely manner or at all. It is our view, based on years of experience working with

4 4 mentally ill persons in immigration detention, that such persons do not receive appropriate health care and are significantly disadvantaged when compared with treatment provided to the mentally ill within the community. There are a number of reasons for this. The primary reason in our view is the extreme reluctance of DIMIA to release mentally ill persons from immigration detention centres as it underscores the fact that prolonged detention often leads to mental illness and that mental illness cannot be properly treated in a detention environment. 13. A considerable body of medical research is available on the effects of detention on the mental health of asylum seekers. A useful summary of this research is contained in Psychiatric Harm and Long Term Detention Summary of Evidence by Zachary Steel, Clinical Psychologist and Senior Lecturer, Centre for Population Mental Health, School of Psychiatry, University of New South Wales, last updated 12 November As DIMIA are required, pursuant to section 189 of the Migration Act, to detain unlawful non-citizens, they are reluctant to engage in alternative care arrangements which will undermine their primary statutory duty to detain unlawful non-citizens within detention centres. It is our belief that DIMIA views the release of individuals from detention on mental health grounds as weakening Australia s policy of mandatory detention and of having the potential to open the floodgates to others. 15. There are a number of other reasons why mental health issues by detainees are not often adequately addressed by DIMIA and their subcontractors within detention. We believe that one reason is that detention centre staff including DIMIA staff often believe that detainees are manufacturing their illnesses to effect a transfer from detention. In Ms Rau s case we are advised that Shirley Ellinson, the GSL Manager at Baxter advised visitors asking about Ms Rau s behaviour on 25 January 2005 It is all a game. She s just putting it on. 16. Another reason why mental health issues by detainees are often not adequately addressed is that staff become accustomed to extreme incidents within the detention environment and mistakenly attribute many of them to behavioural issues, not symptoms of underlying mental illness. This appears to have been the case for Ms Rau s who was held in the Baxter behavioural compound Red One for a total period of 94 of 121 days in Baxter. 17. Section 2.20(9) of the Migration Regulations permits the release of an unauthorised non-citizen: who has a special need based on health or previous experience of torture or trauma in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment, and

5 5 in respect of whom the minister is satisfied that adequate arrangements have been made for his or her support in the community.' This section is of relevance to Ms Rau as she initially advised DIMIA that she had arrived in Australia in an unauthorised manner. 18. Despite the existence of this section, it is very rarely used by DIMIA. Having represented over a hundred asylum seekers in various immigration detention centres in Australia since 1995 I cannot recall an instance where a client of mine has been released from detention on mental health grounds by DIMIA spontaneously and without considerable pressure being applied externally by either legal representatives, medical practitioners or outside agencies. During this period I have represented a number of clients who have been the subject of specialist medical reports recommending their release from detention on account of their mental health. A number of those clients have eventually been released by DIMIA on bridging visas into the community. Were an independent government agency responsible for the decision to release, I believe that many more clients would have been released without the need for external action. 19. Pursuant to Reg 2.20(9), the power to appoint a medical specialist rests solely with DIMIA and there is no right of review of DIMIA s decision to make an appointment or not. Nor is there an obligation by DIMIA to release a detainee if a recommendation is made to them by a medical practitioner to that effect. As DIMIA has no expertise in relation to mental health, it is of concern that they are the ultimate arbiters of who should be released from detention on mental health grounds. We understand that a mental health monitoring committee inside Baxter comprises of a DIMIA representative, a GSL representative and a psychologist. In our view this should be the responsibility of a specialist mental health body at arms length from both DIMIA and GSL. 20. We note that the Baxter psychologist has previously told the Federal Court that he perceives there to be a conflict of interest between his employment with GSL and his professional obligation to act in the best interests of his patients. (SE p 85) We contend this is on account of pressure placed on GSL by DIMIA and subcontractors by GSL to manage, rather than treat, persons with mental illnesses in detention. 21. In the case of VQAS v MIMIA [2003] FCA 832 (6 August 2003) the Federal Court ordered DIMIA to appoint a medical specialist to determine whether the applicant had a special health need pursuant to Section 2.20(9) of the Migration Regulations. The applicant s solicitors were forced to initiate litigation as DIMIA would not themselves appoint a medical specialist and vigorously contested their duty to appoint such a specialist. Commenting on DIMIA s submissions, Ryan J stated that: I am unable to read into reg 2.20(9)I a requirement that the appointment should be preceded by the formation by a Departmental

6 6 officer of an opinion that there is a prima facie case or question arising about the ability of the applicant to be properly cared for in a detention centre. I consider that the implied obligation on the Department to make the appointment arises whenever there is material which seriously suggests a special need based on health which might, arguably, not be properly catered for in a detention environment. In relation to the particular circumstances of this case, Ryan J stated: in the present case there is a multitude of evidence in the form of medical reports dating from at least December The general tenor of those reports is to demonstrate a progressive deterioration of the applicant's spinal condition and an inability by various attempts at physiotherapy and other forms of symptomatic relief to alleviate the condition. The main consideration that has led me to that conclusion is the clear impression that none of the medical practitioners providing the reports to which I have referred seems to have made any coherent assessment of the care which can be accorded to the applicant in a detention environment. Indeed, the authors of those medical reports portray at various points in the reports an understanding of the facilities available in a detention environment and what is constituted by such an environment, which is superficial at best. VQAS is not an isolated case of the lack of care by medical specialists employed by DIMIA and their subcontractors. Should the Inquiry wish, the ASRC would be prepared to provide further examples of the lack of appropriate care to health needs of detainees. 22. In our view there is a fundamental conflict of interest when DIMIA have responsibility for making decisions to detain as well as being responsible for the care of persons in detention. 23. For these reasons, the ASRC submits that responsibility for the physical and mental health of detainees should be removed from DIMIA and transferred to the appropriate State government health department within each state as is the case with many state prisons. In Victoria, for example, the Department of Justice have delegated responsibility for health issues within state prisons to the Department of Human Services who appoint medical subcontractors to provide relevant health services in prisons. We understand that a similar situation exists in South Australia. This arrangement provides for an appropriate separation of executive functions between government agencies and transfer of health functions to an agency with expertise in health management. Although there is a draft Memorandum of Understanding between South Australian mental health authorities and DIMIA, DIMIA retains ultimate authority for the referral

7 7 of cases, the daily care of detainees and the decision whether or not to accept specialist recommendations for release. D: Failure to diagnose Ms Rau s mental condition 24. We acknowledge that various efforts were made to assess Ms Rau s mental health during the course of her detention, including while at the Brisbane Correctional Centre. However it is disturbing that neither DIMIA, GSL or medical specialists appointed by GSL were able to accurately diagnose Ms Rau s mental illness in a timely manner despite having Ms Rau under 24 hour watch at Baxter. 25. Reports by detainees indicate that Ms Rau engaged in bizarre and disturbed behaviour, including undressing in public. DIMIA and GSL implicitly acknowledged her bizarre behaviour by transferring her to Red One for the majority of her time in Baxter. It was apparent to Ms Curr in a brief telephone conversation with Ms Rau on 25 January 2005 that she was delusional. The fact that Ms Rau was transferred from Baxter on the day of her identification, 3 February 2005, to the intensive care highdependency unit at Glenside psychiatric institution, where she remains two months later, demonstrates just how unwell Ms Rau was. 26. The failure to correctly diagnose Ms Rau raises concerns not just about the competency of the medical specialists appointed to assess her, but also about the ability of medical staff and DIMIA and GSL to accurately distinguish behavioural problems from mental illness in detention. A forbidding and punitive system of behavioural controls are in place in Baxter in Red One. The ASRC is concerned that detainees are often punished for behavioural issues which are in fact issues of mental health. The fact that medical staff at Baxter suggested that Ms Rau should be further monitored leading up to psychiatric re-evaluation suggests that they may have had difficulty distinguishing between behavioural and psychiatric issues. E: Delay in assessment of Ms Rau 27. The delay in the psychiatric assessment of Ms Rau was a critical systems failure. It appears from evidence given in Senate Estimates that the first psychiatric assessment of Ms Rau occurred four months after her initial detention by DIMIA on 31 March (SE p75). 28. We note that shortly after Ms Rau s arrival at Baxter in October 2004, she was assessed by a psychologist who referred her to a psychiatrist who assessed her on 6 November 2004 but could not be definite on the issue of her diagnosis. On 17 November medical records were sent to a triage service for rural and remote health in South Australia. There appears to have been limited follow-up between this date and early January when the request for a psychiatric assessment was renewed. Only on 3 February 2005 was a decision made to transfer Ms Rau to Glenside.

8 8 29. In our view issues concerning the mental health of a detainee must be treated as a matter of the utmost priority. 30. The ASRC considers that the non-availability of a particular psychiatrist or restricted holiday timetables over the December/January period provide no reasonable justification for the failure to obtain a prompt psychiatric assessment concerning Ms Rau. 31. It is our view that the delays in properly assessing Ms Rau are also attributable to the insufficient resources allocated to mental health in immigration detention. Despite a sizeable and fluctuating detention population comprising a large numbers of persons with varying degrees of mental illnesses, Baxter has only one full time psychologists and no fulltime psychiatrist. This is an appalling care-ratio and indicative of a lack of interest in providing adequate psychiatric care. Regardless of the ability or competence of the Baxter in-house psychologist, we maintain his job is unmanageable. F: Consideration given to alternative arrangements in relation to Ms Rau 32. Whilst DIMIA have advised that they began to consider alternative care arrangements for Ms Rau from 21 January 2005 onwards, it is revealing that no alternative care arrangement eventuated and that consideration was only given to this proposal after Ms Rau has been in detention for over two months since October We consider that DIMIA s rigid approach to mental illness shows little understanding of the complexity of mental health conditions or the need to actively pursue alternatives tailored to the circumstances of individuals. 33. Unfortunately the Migration Act and Regulations provide insufficient provision for the release of mentally ill persons from immigration detention into managed care or into the community. The Migration Regulations must be amended to allow greater flexibility for the release of persons with mental illnesses from immigration detention. Designating hospitals or private houses as places of immigration detention is a ridiculous and unworkable artificial construct which merely serves to highlight the inadequacies of the Migration Act with regard to the treatment of the mentally ill. 34. Section 5.35 of the Migration Regulations permits the Secretary of DIMIA to authorize involuntary medical treatment to a person if a registered medical practitioner is of the opinion that the detainee needs medical treatment and if medical treatment is not given to that person there will be a serious risk to his or her life or health. Use of this section should be a matter of last resort. There is a strong case for the development of alternative care arrangements with the consent of the individual concerned which would obviate the use of this section.

9 9 G: Treatment of Ms Rau in detention 35. Many psychiatrists consider solitary confinement to be one of the most damaging forms of treatment of persons who are mentally unwell. Ms Rau was detained for prolonged periods in the Management Unit at Baxter where she was held in solitary confinement for up to 18 out of 24 hours. Other strategies used to manage Ms Rau including use of force, use of restraints, use of behaviour modification regimes, use of male guards, prolonged placement in all-male compounds can only have exacerbated her mental illness. 36. In our view, decisions to administer behaviour management regimes in immigration detention must be reviewed by a body independent from DIMIA or GSL. 37. As courts are often reluctant, or limited in their ability, to review the legality of internal management procedures which operate pursuant to express statutory regimes, it is critical that such procedures be approved and regularly reviewed by specialist bodies with expertise in mental health. We consider that if such an audit were to be conducted many of the procedures outlined in the GSL Redgum Compound Behaviour Plan would be found to be inappropriate for persons with mental illnesses. How, for example, can a person with Ms Rau s level of mental illness be expected to comply with the behavioural objectives of no use of abusive language, no major outburst or disruptive behaviour, or compliance with all lawful instructions from GSL? How was Ms Rau expected to be able to exit Red One unless she cured herself of her mental illness? G: Guardianship powers between State and Commonwealth 38. Following information about Ms Rau s disturbed and bizarre behaviour in immigration detention and subsequent to Ms Curr s conversation with Ms Rau on 24 January 2005, the ASRC formed the view that Ms Rau was incapable of giving proper instructions and that the only person who could properly represent her interests was a State appointed guardian. 39. Had Ms Rau been properly diagnosed as a mentally incapable person, it would have been appropriate for DIMIA to appoint an independent guardian to Ms Rau. Whilst DIMIA indicate that they have previously appointed guardians for immigration detainees, there is no statutory basis for the appointment of a guardian in the Migration Act. The only provision of the Act which refers to guardianship of mentally incapable persons (section 261AM) is limited to obtaining personal identifiers by detainees. The Migration Act should be amended to include an express requirement that DIMIA appoint a guardian to mentally incapable persons. 40. The South Australian Public Advocate, John Harley, appears to be unclear about his jurisdiction over mentally incapacitated persons in Baxter Detention Centre pursuant to his powers under the Guardianship and

10 10 Administration Act (SA) The Commonwealth deny that he has jurisdiction. The Public Advocate has previously initiated court action to clarify the situation but the issue remains unresolved. (see Annual Report of South Australian Public Advocate). The Victorian Public Advocate is also unclear on the scope of his powers in detention centres. (see interview with Victorian Public Advocate, Julian Gardner, 8 February 2004, ABC774 Could it happen in Victoria? ) Federal and State Governments should agree on a Memorandum of Understanding on the role of Public Advocates as guardians for mentally incapable persons in detention as a matter of priority. 41. On their website, DIMIA assert that the immigration detention process is among the most closely scrutinized Government programs. However credible incidents of inappropriate treatment continue to be made regularly in detention centres suggesting a failure of bodies performing external scrutiny. The Federal Government often ignores recommendations by watchdogs it lists as providing scrutiny of detention centres. (eg HREOC report A matter of Last Resort, April 2004). Other watchdogs appear to be of limited use. Whilst IDAG were alerted to Ms Rau s situation on 16 December 2004, they took no action in relation to this matter prior to her release from detention. It is worth noting that IDAG includes a number of psychologists/psychiatrists. In her Statutory Declaration Ms Curr explains how these external scrutineers failed Ms Rau despite Ms Curr s repeated attempts to engage them about Ms Rau s situation. 42. The ASRC recommends that an independent detention watchdog be established with the jurisdiction to entertain complaints by detainees and with the power to make binding rulings on DIMIA in relation to treatment, conditions and release from detention. REGARDING VIVIAN ALVAREZ STRUCTURAL ISSUES CONCERING ESTABLISHING IDENTITY AND TREATMENT OF PERSONS BY IMMMIGRATION OFFICIALS WITHIN THE COMMUNBIY H: Determination of identity 43. DIMIA s Migration Series Instructions 406 Establishing Identity in the Field and in Detention exist in name only. They did not assist DIMIA in correctly identifying Cornelia Rau or Vivian Alvarez. Up to 201 other persons have allegedly been wrongfully detained by DIMIA since The Instructions refer to the need for officers to follow up identification leads as quickly as possible (including working overtime) to minimise a person s time spent in detention. Cornelia Rau was in detention for 8 months before she was identified through the media. 45. Whilst the Instructions refer to a health condition which may be contributing to a person s inability to produce a coherent story, no

11 11 guidance is provided within the 14 page instructions on how to identify and deal with persons with mental health issues. 46. The Instructions specifically refer to the need to follow up references by persons to having obtained Australian citizenship in the past or to periods of hospitalisation and also to contact State Missing Persons Units and hospitals and health facilities. Vivian Alvarez held Australian citizenship at the time of her removal. Cornelia Rau had been hospitalised on many occasions over the years, was registered with the NSW Missing Persons Unit. 47. DIMIA s procedures for correctly identifying persons suspected of being unlawful non-citizens must be completely overhauled and humanised, with particular emphasis on identifying mental health concerns. I: Removal of non-citizens from Australia 48. DIMIA have a statutory obligation to remove unlawful non-citizens from Australia as soon as reasonably practicable. 1 Unfortunately DIMIA often exercise this role over zealously and without regard to physical or mental health issues, welfare issues or human rights concerns in the country of repatriation. 49. Whilst there is an obligation upon DIMIA to conduct a pre-departure assessment of a person s physical fitness to travel, DIMIA do not assess a person s mental fitness to travel. Persons with chronic mental illness are routinely removed from Australia in circumstances where there is no treatment for them upon arrival in the country of repatriation. This does not mean that DIMIA should never remove a person who is psychologically unwell, merely that this should be done in a sensitive and appropriate way in accordance with best mental health practice standards. In many cases it may be appropriate to organise counselling and or psychological treatment prior to removal. 50. DIMIA take the view that as soon as an unlawful non-citizen has been removed from Australia, they are no longer of concern to Australia or Australia s responsibility. This is a flawed and short-sighted approach. It is inconsistent with our international human rights obligations and does not reflect the concerns of the Australian community. There was public outrage in 1997 when DIMIA removed a female national who was over 8 months pregnant to China where she was forcibly aborted. 2 Until DIMIA recognise and take seriously their duty of care to all migrants removed from Australia, situations such as the Alvarez scandal will continue to be reported. 1 S 189 of the Migration Act 2 for further information see A Sanctuary Under Review: An Examination of Australia s Refugee and Humanitarian Determination Process, Senate Legal and Constitutional References Committee, July 2000

12 For failed asylum seekers DIMIA should conduct a pre-departure human rights and personal security audit to ensure that Australia s primary human rights obligations are being met. At a minimum the circumstances of asylum seekers should be assessed against the following international treaties; Convention on International Civil and Political Rights, Convention Against Torture, Convention on the Rights of the Child, Convention on the Elimination of Discrimination Against Women and the Convention on the Reduction of Statelessness. 52. Identification of human rights obligations would not necessarily result in that person being entitled to remain in Australia but might require the person to receive some temporary humanitarian status within the community or for DIMIA to develop a welfare, protection and monitoring package to minimise any harm to the deportee upon return to their home country. In other cases permanent humanitarian protection might be appropriate. For further information or comment, please contact Kon Karapanagiotidis, ASRC Coordinator, Martin Clutterbuck, ASRC Legal Casework Coordinator or Pamela Curr, ASRC Campaigns Coordinator on(03)