Australia's use of handcuffs on asylum seekers inhumane and unlawful, advocates say

Australia’s use of handcuffs to transfer asylum seekers to medical appointments is unlawful, inhumane, traumatising and illegally restricts access to healthcare, particularly for those with a history of mental illness and torture, a landmark new case alleges.

The Public Interest Advocacy Centre on Monday launched a test case in the federal court on behalf of an asylum seeker, with the pseudonym of Yasir, who is challenging the lawfulness of handcuff use when transferring those in immigration detention to and from medical appointments.

The case alleges the practice is unlawful under both the Migration Act and the Disability Discrimination Act.

The use of restraints has already faced criticism from both the Australian Human Rights Commission and the Commonwealth Ombudsman, who have warned force and mechanical restraints are being used indiscriminately, in a manner disproportionate to the risk, and as a first resort rather than last.

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For asylum seekers such as Yasir, who has spent seven years in detention, the use of handcuffs can be intensely traumatising.

Yasir has been diagnosed with mental illness and told the Guardian he has a history of torture and childhood abuse.

Despite this, he says he is frequently put in handcuffs to attend medical appointments, without reason.

PIAC alleges that, on several occasions, the prospect of handcuffs was enough to give Yasir seizures.

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“It’s happened to me so many times, I’ve lost count,” Yasir told the Guardian. “I have been in immigration detention for over seven years now and I worry about the threat of handcuffs every day. They never tell me why I need to be handcuffed.”

“I can never forget the things that happened to me as a child prisoner. I fled to Australia to seek protection but detention is a new nightmare when I got here. Being constantly handcuffed here is doing more and more damage to my mind.”

Data on the use of handcuffs in immigration detention is not readily available, and the Department of Home Affairs did not respond to questions about the practice.

But freedom of information documents released in 2017 suggest the use of force, which includes restraint use, has skyrocketed in onshore detention, almost doubling in about nine months.

PIAC says the onshore detention system – where about 50% of the population are asylum seekers – has been marked by a significant militarisation and an increasingly punitive culture since taken over by the Australian Border Force in 2015.

The centre’s chief executive, Jonathon Hunyor, said the system not only worsened some detainees’ mental health, but also denied them proper access to basic health services. PIAC is alleging such actions constitute assault and is a form of disability discrimination, and wants the practice used only as it is intended to be used: as a last resort.

“We choose to lock up people who have committed no crime and then, frankly, we brutalise them,” Hunyor told the Guardian. “This case really exposes that in pretty horrific detail.”

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“We know that this is a cohort of people who are likely to have pre-existing health and mental health conditions, a history of torture and trauma is certainly not uncommon. And we are holding people for very long periods of time, which we know causes mental health conditions and poor health generally.”

“So in those circumstances, to then be using excessive force within centres, between centres, and taking people to and from medical appointments, really make things worse.”

Jane Leibowitz, a senior solicitor with PIAC’s asylum seeker health rights project, said there are humane and effective alternatives to handcuffs and body belts.

“More and more, we are seeing vulnerable, sick and otherwise cooperative detained asylum seekers, subjected to harmful and degrading practices which result in significant delays and disruptions to medical care,” Leibowitz said.

The department was approached for comment.

The PIAC case has the financial backing of the Grata Fund, which supports legal cases in the public interest.