Faculty of law blogs / UNIVERSITY OF OXFORD

Creating Sickness and Death: The Health-Related Harms of Australia’s Refugee Externalisation Policies

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5 Minutes

Author(s)

Samantha O’Donnell
PhD candidate at the University of Melbourne
Sara Dehm
Legal scholar at the University of Technology Sydney
Claire Loughnan
Lecturer in Criminology, University of Melbourne
Jordana Silverstein
Senior Research Fellow in the Peter McMullin Centre on Statelessness in the Melbourne Law School

Guest post by Samantha O’Donnell, Dr Sara Dehm, Dr Claire Loughnan and Dr Jordana Silverstein. The policy paper on which this post is based is available here. Samantha is a PhD candidate at the University of Melbourne, researching precarious migration status, family violence and immigration law in Australia. Sara is a legal scholar at the University of Technology Sydney, who researches on the history and theory of international migration law, including practices of border control, knowledge production and migration resistance. Claire is a Lecturer in Criminology, University of Melbourne, whose research examines the modes, practices and effects of living and working in sites of confinement and the carceral expansion accompanying border control practices. Jordana is a Senior Research Fellow in the Peter McMullin Centre on Statelessness in the Melbourne Law School, where she researches histories of statelessness, child refugee policy, and Jewishness.

a person holding a poster at a protest

Since 1992, Australian law has required the mandatory detention of all people deemed “unlawful non-citizens” (Migration Act (Cth), s189). As affirmed by the High Court of Australia, Australian law also enables the period of detention to be indefinite. Australia has engaged in the so-called “offshore” processing of refugees as part of this immigration detention regime since 2001. While this “offshore” regime was suspended in 2007, it was officially reinstated in August 2012 with the re-opening of immigration detention prisons in Papua New Guinea (PNG) and Nauru. This regime specifically targets refugees and asylum seekers who arrive by boat without a valid visa and comprises one of many examples by which signatory states seek to avoid their obligations under the Refugee Convention through forcibly transferring asylum seekers to third states for the purpose of detention, status determination and, in theory at least, eventual refugee resettlement.

In a policy paper published with the Comparative Network on Refugee Externalisation Policies, we examine the health-related harms of Australia’s punitive border regime with a specific emphasis on these “refugee externalisation” policies. We detail the “looming humanitarian emergency” and unprecedented mental health crisis caused by the reinstatement of Australia’s violent extraterritorial asylum regime, including Australian-run immigration prisons in PNG and Nauru. Between 2012 and 2014, Australia forcibly transferred approximately 4,180 people to “offshore” detention. In the decade since the reinstatement of this regime, most of these people have now been transferred to Australia for medical reasons or resettled in the United States. However, at the end of January 2023 there were 66 people seeking protection still in Nauru, and at the end of August 2022 106 people seeking protection were still in PNG, many of whom have been waiting up to ten years for the ‘processing’ of their refugee claims. Those refugees who remain in PNG and Nauru, as well as refugees in Australia on temporary visas, continue to have drastically inadequate access to healthcare while enduring legal limbo, precarity, and insecurity. The mental and physical health impacts of such prolonged detention and insecurity are often profound.

Despite a change in government in Australia, the health-related harms of immigration detention remain an urgent concern. The Labor government, an ostensibly centre-left political party elected in May 2022, recently reauthorised the use of Nauru to host an Australia-funded immigration prison. This government also recently engaged retrospective legislation to overturn a federal court ruling, which stated that aggregate criminal sentences (e.g. when someone is given one sentence for multiple offences instead of separate sentences) amounting to 12 months would not result in automatic visa cancellations on character grounds. This court ruling resulted in 100 people being released from immigration detention over Christmas who had previously been detained on the basis of the automatic cancellation of their visas for aggregate sentences exceeding 12 months. In what has been termed “abhorrently cruel”, those 100 people have now had their visas cancelled a second time and are now being re-detained. The findings from our policy paper represent an important challenge to the continuation of what is evidenced to be a harsh, punitive, and physically and mentally harmful immigration regime.

Under this regime, refugees and asylum seekers are harmed as a result of the conditions within immigration prisons, including the inadequate healthcare, and as Hartley and Fleay make clear, these harms persist long after release. These health-related harms have also resulted in the deaths of refugees and asylum seekers. Monash University’s Australian Border Deaths Database records 41 deaths of people while detained in Australia, and 17 deaths of people while detained either in Nauru or PNG. Beyond these deaths within detention, there are numerous cases of people who were released from detention and died because of untreated or poorly treated medical conditions, or from suicide. The “preventable” death of Iranian man Hamid Khazaei, because of the inadequate treatment of an infected sore on his leg, is a disturbing illustration of how exposure to death is endured under Australia’s immigration detention regime. In making this finding we draw on Cameroon scholar Achille Mbembe’s concept of necropolitics. We suggest that contemporary racist logics of sovereignty, operating through Australia’s immigration detention regime, deem the lives of refugees “disposable”.

In line with Mbembe’s work on necropolitics and state intentionality, we argue that the denial of healthcare within Australian immigration prisons, including under Australia’s extraterritorial asylum regime, functions as a form of punishment that forces people to live in ‘state[s] of injury’. Not only are immigration prisons inherently carceral spaces, but inadequate healthcare and health-related harms exist as part of the punitive design, intention and operation of immigration detention. This design is rooted in historical and ongoing practices of settler colonialism, where penal mechanisms such as regulation, incarceration and surveillance are engaged with distinctly medical effects. We argue that decent healthcare cannot be provided within the context of immigration detention or “regional processing”. The only way to facilitate access to proper healthcare is outside of immigration prisons, and through the abolition of punitive asylum policies and practices more generally.

Despite these harms, people seeking refuge remain powerful advocates for their own rights. We see one example – cited in our report – in the experiences of Mostafa Azimitabar, a Kurdish refugee and human rights advocate who survived detention in the Mantra Park hotel where he was “locked up on the third floor, and 23 hours a day, I was inside a room…There was no way to go outside the building. There was no sunlight.” In telling his story publicly, he exposed the health-related harms of state border regimes. Behrouz Boochani, Kurdish writer and former refugee, also powerfully advocated for the rights of refugees in mandatory detention. When detained in Manus Prison, Boochani was told by then Minister for Immigration and Border Protection Peter Dutton that he would never come to Australia. Yet early this year he gave a speech in-person at Parliament House, where he called for a Royal Commission into immigration detention and supported a bill to evacuate the remaining refugees and asylum seekers in PNG and Nauru. These stories show what scholar, journalist, poet and human rights advocate Dr Saba Vasefi succinctly articulates: “I think refugees themselves are the most powerful advocates. I have been inspired by them, I have been energised by them.”

Read together, our report’s findings necessitate the immediate end to Australia’s use of immigration detention and “regional processing”, and to the violence of state border regimes more generally. We call for the abolition of all practices of mandatory detention and for reparations to be paid to those who have been harmed in the Australian context. Yet these findings are also relevant beyond the Australian context. Dr Tazreena Sajjad outlines the United Kingdom’s plans to send refugees claiming asylum to Rwanda, and notes that there have been similar proposals by other Western states. Our policy paper should, therefore, be read as presenting a challenge to the use of immigration detention and “third country processing” by states more broadly. 

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How to cite this blog post (Harvard style):

S. O’Donnell, S. Dehm, C. Loughnan and J. Silverstein. (2023) Creating Sickness and Death: The Health-Related Harms of Australia’s Refugee Externalisation Policies . Available at:https://blogs.law.ox.ac.uk/border-criminologies-blog/blog-post/2023/05/creating-sickness-and-death-health-related-harms. Accessed on: 18/07/2024

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