Updated: Oct 18, 2020
*WARNING THIS POST CONTAINS SPOILERS* **Note: Stateless examines Australia’s immigration practices, policies and legal framework as it was in 2004-2005. The discussion in this post may not reflect the current position in Australia and should not be taken as an analysis of the current state of migration law or policy in Australia** On 8 July 2020, Netflix released a six-part tv-show entitled “Stateless” which was produced by the UN Refugee Agency’s (UNHCR) Goodwill Ambassador, actress Cate Blanchett. The tv-show deals with the philosophical sense of losing one’s own identity when involved in the process concerning immigration detention, rather than statelessness in the legal sense. The show realistically depicts the difficulties detainees find themselves in when trying to seek asylum and shows how people, fleeing countries due to persecution or who are running away from territories ravaged by war, are then left in remote locations until they are forgotten. At one point in the programme, when one of the main characters is brought to the immigration detention centre, the first words he mutters to the guard are “please, there must be a mistake. I am not a criminal.” These are the first true feelings and thoughts asylum seekers often have when first entering an immigration detention centre in a country they thought would provide them with protection and freedom. However, the realities, guided by anti-immigration policies in the countries of destination, are unfortunately often quite different.
These difficulties are first felt during the journey towards the place of destination. The show begins by showing a family of Afghans who try to reach Australia whilst having their money and identity documents stolen by smugglers. The family is then separated and later reunited, however they later find out half of their family members have drowned at sea whilst trying to reach their new homeland with a small wooden boat.
These are the realities thousands of asylum seekers and migrants face around the world. In 2019, the International Organisation for Migration (IOM) recorded 5,294 deaths of migrants who died trying to reach another country, however the real number is thought to be much higher. The main cause of death was found to be drowning; other causes were found to be of starvation, dehydration, and asphyxiation.
Although Stateless is set in Australia, various countries around the world have adopted similar strict immigration policies which continuously result in the detention and violation of rights of thousands of asylum seekers. Actress Cate Blanchett stated “we live in a world where about one per cent of all humanity is now displaced as a result of conflict or persecution. Through Stateless, I hope to prompt people to rethink how they and we all are responding to the current displacement crisis. To understand what it means to lose your home, your country, your identity. To get people to empathise and to ask questions.” Stateless mainly follows the storyline of four characters whose lives revolve around immigration detention. The plot of the main character was inspired by the true story of Cornelia Rau, a German citizen and Australian permanent resident, who was detained for 10 months in 2004 – 2005 including in Baxter Immigration Detention Centre in regional South Australia. The discovery of Ms Rau’s illegal detention led to the Palmer inquiry which resulted with the finding that Australia had previously deported its own citizen, Vivian Alvarez Solon, to the Philippines in 2001. Immigration detention in Australia The Palmer Inquiry highlighted the inadequacies within Australia’s immigration detention processes. It specifically highlighted that the then Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) (or as the characters in Stateless know it to sarcastically stand for Detention Is Marvellous In Australia) “compliance officers have received little or no relevant formal training and seem to have a poor understanding of the legislation they are responsible for enforcing, the powers they are authorised to exercise, and the implications of the exercise of those powers.” The inquiry additionally found that “officers, with direct responsibility for detaining people suspected of being unlawful non-citizens and for conducting identity and immigration status inquiries, often lacked even basic investigative and management skills.” Given that Ms Rau had a history of mental illness, the inquiry concluded that “the fact that illness behaviour does not seem to have been considered a reasonable possibility and actively pursued and evaluated over the 10 months [Ms Rau] was in immigration detention [was] cause for concern.” These were just a few of the many flaws that were discovered through this inquiry. All these findings raise the question of how the Australian immigration system was equipped to correctly and properly identify and process claims for asylum and international protection. It appears apparent that better training of officers in immigration detention facilities and those making decisions with respect to the detention of non-citizens is critical. As is further training on the powers they have and the responsibilities they carry. This training can create a sense of trust between the personnel and the detainees which can then help identify the vulnerabilities and specific needs of individuals. At the same time, providing psychological and proper medical attention to newly arrived asylum seekers can further aid with this. Cultural sensitivities in immigration detention Stateless also depicted the lack of cultural sensitivity employed by immigration staff during the asylum procedure and detention of asylum seekers. During one scene an Afghan asylum seeker is asked to identify himself, including his surname. This request was not comprehensible to the asylum seeker as many Afghans do not have surnames. The translator, in the language which is not understood to the immigration officer in charge, then tells the applicant that any name will suffice as the officer needs a name in order to complete the form. This is the first time we see the initial step of claiming asylum, the officer in charge of identifying the individual does not comprehend the cultural differences of the individuals who are trying to seek protection. This simple misunderstanding and accompanying cultural insensitivity, which seems to be insignificant at the beginning of the show, results in the applicant claiming a random identity and thus preventing his daughter from being recognised as his dependent, allowing for her to later apply for and obtain asylum as an unaccompanied minor. The topic of cultural sensitivity is further explored in Stateless when a guard hands over clothing which is deemed to be more “culturally” appropriate to the character based on Cornelia Rau. The guard is a male working in the female section of the immigration detention centre. The issues associated with male guards working with female detainees was highlighted in the Palmer inquiry which stated that “in all but emergency or extraordinary circumstances, surveillance of female detainees should be done by female detention officers.” The show also depicts a scene where a priest was celebrating a mass for a few detainees. This is important to note because it shows that the immigration detention centre recognises the importance of religion, however it is unclear if detainees practicing religions other than Christianity were provided with the opportunity to similarly practice their faith. Providing a cultural mediator during the asylum process, or by giving cultural training to both the officer in charge of processing the asylum request and the translator, would help to better confirm the identity and the needs of the asylum seeker. Regarding the respect for religion in detention centres, UNHCR views that religious festivals and rites of passage can be extremely important in unifying a community and the importance of such activities to the communities’ mental health should not be underestimated. The Australian Human Rights Commission also investigated the importance of religion, culture and language for children in immigration detention centres. Immigration detention conditions Stateless also engages with the issue of the conditions within immigration detention facilities in Australia. One episode depicts a detainee in the courtyard of the detention centre spending all day sitting in the sun, next to a dying palm tree, with a suitcase. All the other detainees know he has been there for seven years and that even if the man wants to leave, no country will accept him thus leaving him in a perpetual legal limbo. Unfortunately, in Australia indefinite detention is a worrying possibility. In the case of Al-Kateb v Godwin  HCA 37 the Australian High Court held that indefinite detention is permissible where there is no country to remove an unsuccessful asylum applicant to. The applicant in said case was a stateless person, making this judgment ever more concerning given that it is even harder to find a country that would take a stateless applicant.
Although Australia does not place any time limit as to the immigration detention period for non-citizens and only permits a limited review by the courts, UNHCR and the European Union (EU) and the Member States of the Council of Europe have taken a different approach.
As UNHCR states in its detention guidelines “Detention can only be applied where it pursues a legitimate purpose and has been determined to be both necessary and proportionate in each individual case.” The guidelines specifically state that “[a]s a general rule, it is unlawful to detain asylum-seekers in on-going asylum proceedings on grounds of expulsion as they are not available for removal until a final decision on their claim has been made.” However, “it is permissible to detain an asylum-seeker for a limited initial period for the purpose of recording, within the context of a preliminary interview, the elements of their claim to international protection ... [yet] this exception to the general principle – that detention of asylum-seekers is a measure of last resort – cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time." In the EU, the maximum time one can spend in immigration detention varies from country to country, however Article 15 of the Return Directive states that the maximum time of detention can be no longer than that of 18 months. The European Court of Human Rights in the case Louled Massoud v. Malta (app no. 24340/08) went in a similar direction given that the Court had grave doubts as to the legality of the applicant’s detention, which lasted 18 months and nine days. These doubts arose due to the “lack of a realistic prospect of [the applicant’s] expulsion.” Another shocking aspect of Australia’s immigration practices that was revealed in Stateless was that the underage daughter of the Afghan asylum seeker was kept in detention with her father. UNHCR’s position is that “children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and detention is never in their best interests. Appropriate care arrangements and community-based programmes need to be in place to ensure adequate reception of children and their families.”
As UNHCR stated in its latest press release, “Detention must be based on individual assessments, subject to procedural safeguards, and in accordance with and authorised by clearly defined laws and limits. Maximum periods of detention should be set and asylum-seekers must be immediately released once the justifications for their detention are no longer valid.” As an example, if there is no prospect of expelling the asylum seeker or migrant, that individual should be released from immigration detention.
One of the most confronting scenes in Stateless depicted a detainee being beaten by a guard at the detention centre, with the help of other two colleagues, for misbehaving. Unfortunately, this type of misconduct is all too common in many immigration detention facilities. It is for this reason that national human rights bodies conduct visits to facilities and it can be through these visits that detainees can articulate, document and denounce the violation of their rights. In Stateless, it was when the Australian Human Rights Commission was coming to visit the immigration detention centre, that the officer realised that an Australian citizen might have been held in the centre for months. For this reason the United Nations and the Council of Europe advocate the use of the National Prevention Mechanism. This mechanism is comprised of independent visiting bodies established at domestic level aimed at ensuring the prevention of torture and other cruel, inhuman or degrading treatment or punishment. Journalists and the media are also key to uncovering the human rights violations that occur in places of detention. They are part of the checks and balance system which help to make sure the relevant government complies with its legal and human rights obligations. This was shown on Stateless through the journalist who was always trying to make the government officials, working at the detention centre, consider the consequences of their actions. The European Court of Human Rights in the case Szurovecz v. Hungary (app. No. 15428/16) found a violation of Article 10 of the European Convention on Human Rights (ECHR), which concerns freedom of expression, on the basis that the Hungarian authorities had hindered access to information which was of public interest. This case concerned a journalist who was unable to conduct interviews and take photos inside a Hungarian Reception Centre housing asylum seekers which resulted in him being unable to gather information about the conditions at the Centre. The Court recognised that in these circumstances journalists may play a “vital role” as “public watchdogs” and a government hindering the access to information, which is of public interest, can be considered a violation of Article 10 of the ECHR. Outsourcing of immigration responsibilities Stateless commenced with various characters attempting to reach the Australian shoreline. Later it was commented that the Afghan asylum seeker was lucky to have reached the shore since all boats were now being diverted. The comment refers to the policies which started in 2001, after the Tampa incident. This consequently led the government to pass legislation which ensured that asylum seekers were taken and processed in immigration detention centres found in island nations of the Pacific Ocean. This policy was known as the Pacific Solution. Australia currently operates two offshore processing and immigration detention centres in Nauru and Papua New Guinea (specifically Manus Island). Australia had closed its problematic immigration detention centre on Christmas Island (which is an Australian territory), however the government resorted to re-open the centre in February 2020 in order to host hundreds of Australian citizens and permanent residents who flew in from Wuhan, China, due to COVID-19. On 4 August 2020, the Australian Border Guard released a statement saying that “due to the global COVID-19 measures, […] the Australian Border Force’s ability to remove unlawful non-citizens from Australia has been curtailed. To relieve capacity pressure across the detention network in Australia, detainees will be temporarily transferred to the immigration detention facility on Christmas Island.” Although the statement refers only to the transfer “of those who have been convicted of crimes involving assault, sexual offences, drugs and other violent offences” it could make it easier for the government to keep the immigration detention centre on Christmas island running beyond the COVID-19 pandemic. Australia not only resorted to create the Pacific Solution but set up Operation Sovereign Borders (OSB) in 2013. OSB was a military-led border security operation which consisted of military patrol boats that intercepted migrant boats and towed them back to countries of departure, such as Indonesia. All asylum seekers who had entered Australia illegally by sea after 19 July 2013 were brought to the two offshore processing and immigration detention centres. Before setting up OSB, Australia had amended several times the migration zone in which an individual can apply for a visa or seek asylum. The purpose of the amendments to the migration zone was to “excise” particular areas such that they become excised offshore places and “persons arriving unlawfully [in these areas] are prevented from making valid visa applications. […] When a person arrives at an excised offshore place, he or she can be taken to a 'declared country'. Currently, Nauru and Manus Island (off the coast of Papua New Guinea) have been designated as 'declared countries'.” In 2013, the Australian Parliament passed a bill that principally extended the concept of excised territory to all the Australian territory, thus meaning that any person entering Australia by irregular maritime means could not apply for asylum in Australia. The combination of the policy of patrolling the Australian coastline with military boats and not allowing for asylum applications to be made in Australia, makes it extremely difficult and almost impossible to seek asylum when arriving by sea irregularly. Additionally, on 19 July 2013, the Australian government signed a Regional Resettlement Arrangement with Papua New Guinea (PNG) which made it so that recognised refugees in the Manus centre are then resettled in PNG. Given that Nauru issues temporary visas for recognised refugees, Australia entered into a Memorandum of Understanding with Cambodia in order to resettle refugees processed on Nauru in Cambodia. These two agreements show Australia’s attempt to block the resettlement of refugees in Australia.
A story that needs to be noted is that of Behrouz Boochani, an Iranian Kurd who worked as a journalist before fleeing Iran and seeking asylum in Australia in 2013. Mr Boochani was taken to the Manus immigration detention centre in Papua New Guinea and has become a leading voice denouncing the poor detention conditions in the detention centre. He has even written an award-winning book on his phone. New Zealand granted Mr Boochani a temporary visa after he was invited to speak at a literary festival in November 2019. It was the first time that he had tasted “freedom” in six years, and while there he took the opportunity to seek asylum in New Zealand, which on 24 July 2020 recognised him as a refugee under the 1951 Refugee Convention. He was an important advocate against the inhumane conditions asylum seekers find themselves with in the offshore Australian detention centres. Asylum seeking children are known to have attempted to commit suicide and horrifying acts of self-harm in order to escape the inhumane conditions of these facilities. Various international organisations have denounced the detention of persons on said offshore centres.
Stateless also shows two Sri Lankan Tamils protesting on the roof of the Detention Centre, demanding that: first, the Immigration Department process their applications of asylum, second, that under no circumstance they would be sent back to Sri Lanka, and lastly if Australia could not resettle them they wanted UNHCR to take up their cases. This scene is similar to the Villawood incident when nine Tamil asylum seekers stayed on the rooftop of a Sydney immigration detention centre for 29 hours in 2010. The men finally agreed to come down after having talked to UNHCR officials, who ostensibly agreed to process the applications of the nine individuals as well as an Iraqi and Afghan who had ended their protest earlier. These Sri Lankans found themselves detained in Australia, unlike the 157 Tamils who were intercepted and kept at sea for a month before they were transferred to Nauru in 2014.
The outsourcing of immigratory responsibilities is not only an Australian phenomenon. The EU has a deal with Turkey in order for Turkey to “accept the rapid return of all migrants not in need of international protection crossing from Turkey into Greece and to take back all irregular migrants intercepted in Turkish waters.” Various European countries are slowly giving the Libyan Coast Guard more power to intervene in the Mediterranean. Equally, the United States of America has a policy for asylum seekers to remain in Mexico until their claims are fully processed. Australia’s harsh immigration policy Extensive reference has been made to the UNHCR’s guidelines about detention in this article. However, it is worth noting that successive Australian governments have indicated an unwillingness to meaningfully engage with international law and policy which deals with migration. For example, although Australia endorsed the UN Compact on Refugees, Australia refused to adopt the UN Global Compact for Safe, Orderly and Regular Migration (UN Global Compact for Migration), which aims at making a more humane and cooperative process towards migration. It states that signatories “review and revise relevant legislation, policies and practices related to immigration detention to ensure that migrants are not detained arbitrarily, that decisions to detain are based on law, are proportionate, have a legitimate purpose, and are taken on an individual basis, in full compliance with due process and procedural safeguards, and that immigration detention is not promoted as a deterrent or used as a form of cruel, inhumane or degrading treatment to migrants, in accordance with international human rights law”. The Australian government stated that one of the reasons it did not adopt the UN Global Compact for Migration was because “the Compact fails to adequately distinguish between people who enter Australia illegally and those who come to Australia the right way [… which] is inconsistent with the management of Australia’s strong and orderly migration program [… and] would also be used by those who have sought to undermine Australia’s strong border protection laws and practices.” The Australian government probably signed the UN Compact for Refugees given that “It builds on existing international law and standards, including the 1951 Refugee Convention and human rights treaties” that Australia needs to adhere to. If Australia had adopted the UN Global Compact for Migration, it could have indicated a greater commitment towards ensuring that migrants are treated better in detention centres. However, its rejection came at a time when the Prime Minister said that Australia would reduce the number of migrants coming into Australia that year. Even though the UN Global Compact for Migration is non-binding, the fact that Australia has not adopted it demonstrates a continuation of Australia’s extremely harsh immigration policy, and with it, its extremely harsh attitude towards detaining migrants. This is just one example of how, Australia firmly stands in its isolationist immigration policy, which is of course, at the detriment of migrants in detention. To conclude, Stateless truly depicts how strenuous one’s journey can be when trying to seek protection from persecution. The programme not only shows how difficult it is for the detainee, but for society as a whole. The reality of working in a detention centre may also be brutal for the staff. The reality is that many asylum seekers lose themselves during the process and are left broken and feeling abandoned guided by immigration policies that seek to create divisions in society. It is for this reason that one of the detainees in Stateless kept on saying “stay strong up here” while pointing to his head. One might be persecuted physically in one’s own country, but through immigration detention, one might find himself being harmed mentally in his country of destination. Although detention may at times be necessary in order to identify asylum application, the length and conditions of the detention must be necessary, proportionate and have a limit. Alternatives to detention need to be implemented by States across the globe. Alternative measures can be less costly for the State and have proven to promote the integration of the asylum seekers in the host community. Both the Global Compact on Refugees and the Global Compact for Safe, Orderly, and Regular Migration refer to alternatives to detention. As was mentioned in UNHCR’s Executive Committee meeting in 2018 “Refugees are in fragile situations but they are not fragile - they are resilient, and can be partners in their own future.” **If you wish to know more about alternatives to immigration detention, you can sign up for the free online course on alternatives to immigration detention which was developed jointly by UNHCR and the Council of Europe’s Human Rights Education for Legal Professionals programme. ** As part of this week's examination of immigration detention, we are hosting a webinar with Bail for Immigration Detainees 11 August @6pm BST/ 7pm Central European Time. This is an excellent opportunity to hear how immigration detention operates in the UK. Chiara Maria Natta has worked at the UNHCR and the Spanish Bar Association, where she researched migratory issues, including immigration detention.