Amnesty International reports that some asylum seekers have been held in detention for up to four years, and children have been born in detention: See Amnesty International, Australia: A Continuing Shame: The Mandatory Detention of Asylum-Seekers, AI Index AUS/POL/REF (1998) <http://www.amnesty.org.au/airesources/docs/refugee/WebsiteRefugeeLibrary-ContinuingShameReport.doc> at 20 March 2003.
4.
Migration Act 1958 (Cth) ss 178, 189.
5.
See, also s 183.
6.
See, eg, Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176CLR1; Ruddock v Vadarlis [2001] FCA 1329; NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 907; Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; B v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451.
7.
Convention Relating to the Status of Refugees, adopted 28 July 1951, 189 UNTS 137, art 31 (entered into force 22 April 1954) (Refugee Convention).
Australia's refugee intake consists of two distinct offshore and onshore programs. The total intake is set at 8000 places, 4000 of which are set aside for offshore applications. This article uses figures compiled by UNHCR on the basis of governmental information, which can be found at UNHCR, ‘Asylum Applications Lodged in Industrialized Countries: Levels and Trends, 2000–2002’, Geneva, March 2003 <http://www.unhcr.ch/cgi-bin/texis/vtx/statistics> at 25 April 2003. Confirmed comparative figures are not yet available for 2002 onwards.
10.
This information is taken from the European Commission Directorate General for Justice and Home Affairs, Study on the Legal Framework and Administrative Practices in the Member States of the European Communities Regarding Reception Conditions for Persons Seeking International Protection: Final Report (2000) <http://europa.eu.int/comm/justice_home/unit/doc_asile_immigrat/final_rapport_en.pdf> at 25 April 2003.
11.
Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status COM (2002) 326 final, 18 June 2002, as amended 5 April 2003, art 17(1).
12.
Ibid art 17. The Explanatory Memorandum notes that national policies on detention for other reasons, such as national security, penal proceedings and so on, are not affected by this provision, as this article is limited to the stage of examination of an asylum application.
13.
Ibid art 18.
14.
Only two out of a possible total of 581 children were released from detention between 1 September 1994 and May 1998, according to a HREOC Report, Those Who've Come Across the Seas: Detention of Unauthorised Arrivals (1998) 52.
15.
Female children of any age were permitted to participate, while only male children 12 years and under were accepted: DIMIA Fact Sheet 83, ‘The Woomera Alternative Detention Arrangements for Women and Children Project’ (2002) <http://www.immi.gov.au/facts/83woomera.htm> at 9 May 2003.
16.
A HREOC inquiry heard that women choosing to do this had to forego their $6 a day allowance: SaundersMPitsisS, ‘Asylum-seekers to Live in Community’, The Australian (Sydney), 4 December 2002. See HREOC National Inquiry into Children in Immigration Detention, <http://www.hreoc.gov.au/human_rights/children_detention/index.html> at 9 May 2003.
17.
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC70 [155], [94]. The government is seeking leave to appeal this decision to the High Court.
18.
The Court also considered decisions by the Human Rights Committee and the European Court of Human Rights, as well as ‘opinions expressed in works of scholarship in the field of international law’, to support its findings: Ibid [148]–[149].
