Special report: evidence highlights systemic failures in how the immigration department and its contractors deal with serious allegations of sexual assault on Nauru, Manus and the mainland
Weeks after Scott Morrison became immigration minister in September 2013, a 17-year-old Iraqi boy at the Manus Island detention centre alleged he was “on a list” of a group of Iranian men who planned to gang rape him. He was moved to another compound, but lived in fear at the camp until three months later, when he decided to voluntarily return to Iraq.
A week after he made the allegations, and more than 2,000km away, in November 2013, two staff at the Nauru detention centre raised the alarm about serious allegations that a cleaner had touched the genitals of a young boy in detention. The cleaner grabbed his own genitals and said “jiggy jiggy” when the asylum seeker fought back. He later “started talking and laughing” to the asylum seeker after he was confronted by the guards. The boy continues to suffer from trauma from the event. The cleaner has not been charged by the Nauru police force.
The threats escalated. The assaults continued. But it was not until October 2014 – almost a year after these early assaults were documented – that a review into allegations of assaults on Nauru was undertaken to examine the broader institutional responses.
These two assaults, early on in the tenure of the Abbott government, should have put the immigration department on notice that there was something very wrong happening in these remote detention centres. But no action was taken to examine the systemic issues surrounding sexual violence in detention centres on Manus Island, Nauru and the mainland until much later.
Evidence gathered by Guardian Australia highlights the systemic failures in how the immigration department and contractors have responded to serious allegations. Clinical advice by those who know best about responding to sexual assaults – doctors and psychiatrists – has been ignored. In one case, the immigration department even delayed allowing the medical contractor to report a serious allegation of sexual assault.
Clear child protection policies were not implemented on Nauru. And serious assaults continue to occur.
A Senate inquiry is under way into some of these allegations at the Nauru detention centre. The secretary of the immigration department told Senate estimates the royal commission into institutional responses to child sexual abuse is drafting notices to produce documents for incidents relating to mainland detention centres.
Guardian Australia has asked both the immigration minister, Peter Dutton, and the secretary of the department, Michael Pezzullo, to respond to the allegations in an interview, but both men declined.
Jamal arrived on Manus Island in early October 2013. He claimed shortly after his arrival that he was an unaccompanied minor. Case notes from meeting minutes in late October state that the immigration department was “looking at the case” to determine whether he should be moved off the island.
In November Jamal expressed serious concerns to the detention centre staff. Minutes from a daily meeting at the centre said: “[Redacted] reported Iranian men (Oscar 4) had sexual intentions towards him. He stated there is a lot of talk within the compound about sexual activity. He stated he overheard them saying, ‘You are on our list.’ He stated at no time has there been any touching.”
In Australia a threat of a gang rape – particularly by such a young person – would routinely warrant scrutiny and attract the attention of police. For those working with children, there would often also be a statutory obligation on them to report the issue to a child protection authority.
In immigration detention centres the rules are different. No police report was filed initially. The Salvation Army said Jamal would be moved to another part of the compound. International health and medical services (IHMS) planned to see him the next day, but added he did not have any signs of physical abuse.
According to the meeting’s minutes, the immigration department response was to ask just one question: “What is the procedure for deterrence?”
The security company G4S, which was managing the centre at the time, said: “There is no perpetrator; it is an environmental issue. The corrective strategy is to place him in a less risky situation.”
A December 2013 note, after Jamal was moved to the Delta compound, flags in bold red that he is extremely vulnerable.
Moving an asylum seeker to a different centre is the most common response to allegations of sexual assault in offshore detention centres.
Successive meeting minutes from Manus Island show a clear pattern of this sort of response, beginning while the Labor government was in power. On 13 March 2013 an asylum seeker was believed to be the victim of a sexual assault by staff, and he feared going to the toilets.
On 1 May 2013 another asylum seeker said he felt unsafe at the toilets after his friend was threatened with rape by other asylum seekers. On 6 June 2013 another asylum seeker said he had been inappropriately touched in the toilets. He said security staff were not monitoring the toilets, a complaint which was later substantiated. He was moved to another compound.
Many former staff believe the approach is simply inadequate to mitigate risks, particularly due to the difficulties in securing different parts of the detention camps.
A former Save the Children child protection manager, Viktoria Vibhakar, told the Nauru Senate inquiry: “In Australia, it would be considered inappropriate to require children who have experienced sexual assault to remain in the place where they were assaulted and in proximity to the alleged offender (even if he is in a separate area).
“Furthermore, requiring children to remain in detention delays their ability to recover from this additional trauma as the detention facility serves as a continual reminder to the trauma that they experienced.”
The last note made about Jamal is on 24 January 2014 in the form of a handover note to another carer. She writes that Jamal is doing “much better since move to Delta and most importantly feels safe in Delta”.
But she adds he is “currently linked with IOM [International Organisation for Migration] in preparation for return to Iraq.”
A short time later, Jamal voluntarily returned to Iraq.
A spokeswoman for the immigration department said: “In the event of an alleged sexual assault, detainees and transferees are provided with appropriate medical treatment and mental health support, and are placed in an appropriate setting within the facility, pending further investigation.”
Medical advice not followed by immigration department
In one well-documented case of sexual assault on Manus Island, the immigration department chose not to follow the clinical advice of medical staff.
A widely reported case of sexual assault was first raised in an SBS Dateline program on Manus Island in 2013. The report alleged an asylum seeker had been returned to a compound where, with the knowledge of staff, he was sexually assaulted again.
The report sparked a review commissioned by the department that was led by a former public servant, Robert Cornall. The allegations centred mostly around one man, Mr A, who was sexually assaulted while in the detention centre. He was taken to a separate part of the compound by IHMS to protect him from further assaults.
The public release version of the report was cautiously worded, but noted that the department differed in its views from other contractors on the island about the appropriateness of returning the asylum seeker to the compound in which he was sexually assaulted.
Guardian Australia has obtained a more detailed report that explores the central allegations in far greater detail under freedom of information.
It says that “the review did find some evidence relating to allegations of sexual abuse and the return of an alleged victim of sexual abuse to the single adult male compound”.
The report discloses that after A was sexually assaulted on at least two occasions, IHMS recommended he be allowed to stay in a separate compound, the family area.
According to a transcript from the report, the IHMS medical officer said: “Our preferred choice was to have him flown off the island or accommodated in a separate compound away from the perpetrators.”
The immigration department overruled this clinical advice. Instead, it ruled that “Mr A had to [sic] treated on the island and moved out of [redacted] and returned to the single adult male compound as soon as possible.”
The review found that “this difference of approach caused friction between the department’s officers and medical and welfare officers and resulted in personal criticism of [redacted]”.
The question of not following clinical advice remains a significant issue in immigration detention centres. While the advice of medical staff is sometimes taken into account, it is ultimately a question for managers and bureaucrats within the immigration department about how to respond to serious allegations.
“Recommendations are not necessarily followed. And I think that’s the major point that comes out from all the concerns that have been raised. Health is disempowered within detention, and child welfare particularly,” said Professor Louise Newman, a former member of the immigration health advisory group.
“The department or even the minister can make these kind of decisions, and the concern is that they may not understand the implications of those decisions. The decision-making process is absolutely extraordinary, and it’s not in keeping with any other comparable process.”
Immigration delayed transfer of medical files
It was a registered nurse at Scherger immigration detention centre who first realised something was very wrong with Dr Francis Yan Keung Leung. A series of allegations were made that the doctor at the detention centre was undressing asylum seekers and exposing them to inappropriate genital examinations.
IHMS took swift action once the allegations were brought to their attention in late 2012. They conducted some preliminary investigations, and notified the Australian health practitioner regulation agency (Ahpra). Medical practitioners are required to report serious incidents to Ahpra, which is the national regulator. Heavy restrictions are still in place on Leung’s licence. No charges have been laid against him. Guardian Australia approached him for comment when the allegations first arose.
But after the initial notification, the immigration department strenuously objected to IHMS reporting the allegations to the health authority and delayed the transfer of key patient records that detailed the allegations.
Over a period of weeks, IHMS negotiated with the department about the release of medical files to Ahpra after its requests for more information.
The delays highlight the disempowerment Newman describes. Rather than being able to exercise its most pressing medical obligations, IHMS can be sidelined by the department in how it responds to serious allegations in immigration detention.
These concerns were reiterated by former IHMS mental health director across Australia’s immigration detention centres, Peter Young, in testimony he gave to the Nauru Senate inquiry on Tuesday.
Young told the inquiry that the immigration department “regularly” interfered with IHMS’s medical recommendations, and would challenge its findings.
“Officers of the department would frequently in their conversation say that people being taken to Australia for treatment would undermine the policy of offshore detention,” he said.
“When making recommendations to people’s mental health we were told it was unacceptable to put in these reports that detention caused harm.”
In relation to the allegations surrounding notification of the Leung allegations, a department spokeswoman did not deny them. But she said in a statement: “In the case of the allegations regarding a doctor at the Scherger immigration detention centre, he was immediately stood down. Relevant records were provided to the Australian health practitioner regulation agency and police at that time during the course of their respective investigations.”
Assaults on Nauru continue to be under-reported
When Sharin (not her real name) said she was sexually assaulted on Nauru in 2014 she did not raise the alarm with detention centre staff. She, like many other women at the centre, was too scared to speak about what happened to her.
“I am 35 years, I am adult, but I know that the same kind of thing has happened for underage children and for teenagers,” she told Guardian Australia.
Reporting and investigating allegations of sexual assault in detention centres is extremely difficult.
On Nauru, asylum seekers fear speaking out because of reprisals from guards. They have little faith in the ability of the Nauru police force to investigate sexual assaults adequately.
When one of Sharin’s friends on the island alleged she was sexually assaulted, she said she began receiving threats.
“That man is living in the community and he said, ‘I will kill you if you come outside the camps.’
“She has remained in detention centre because she is not willing to go outside because she is scared. She has an underage son and is very concerned about the future and what will happen to her.
“Regarding the children, I know that the situation is not safe. It’s not safe for the children, especially for single ladies, single mums. It’s not safe for humans at all.”
The assaults on Nauru continue to occur, with a female asylum seeker recently raising serious allegations about being sexually assaulted by locals while on day release.
Caz Coleman, a former senior adviser to successive Australian governments on immigration detention, told Guardian Australia it may never be possible for asylum seekers who have been sexually assaulted on Nauru or Manus to gain justice.
The absence of any clear protection framework on Nauru, and the failures of the department and service providers to respond to allegations before they reached a crisis point, make responding to them increasingly difficult.
“At this stage, achieving justice is going to be very, very difficult. These issues should have been dealt with before they even started. The onus was on the department and those service providers to pre-emptively deal with it,” Coleman said.
“We waited until it was a crisis and that is the systemic failure of the system. To achieve justice now is to go through judicial processes, to have investigations, to have the possibility of people being charged.
“In a context like Nauru there’s not even a legislative environment for most of these claims.”
No prosecutions for sexual assault over the past two years
In the past two years, at Australia’s onshore detention centres there have been 32 allegations of sexual assault referred to the Australian federal police for investigation. None have led to prosecutions.
A spokeswoman for the Australian federal police (AFP) told Guardian Australia that 15 referrals were received from the immigration department in relation to mainland centres between 2013 and 2015.
“Of the 15 matters mentioned above, two referrals were accepted by the AFP for further investigation. However, neither proceeded to prosecution due to the withdrawal of the allegation by the complainant,” she said.
For mainland centres, some of these allegations may have been forwarded to state and territory police forces, but it is not known how many were subsequently acted on.
“Referrals received are assessed on a case-by-case basis as to which law enforcement agency would be best placed to examine the allegations raised and lead to any subsequent activities that may follow,” she said.
“The decision as to which agency is the most appropriate could take into account a number of factors, including, but not limited to, geographical location, operational capacity and local interagency agreements.”
The remaining 17 referrals were received from the department in relation to Christmas Island detention centre. The AFP is the lead agency for these investigations. Of these referrals the spokeswoman said that all but one did not proceed to prosecution “on the grounds of insufficient evidence or due to the withdrawal of the complaint”.
The spokeswoman said that one matter remained under active investigation.
The number of allegations that were withdrawn voluntarily highlight a further problem with these investigations: they are often conducted while the asylum seeker remains within a system they are afraid of.
While the royal commission is still assessing whether it will conduct an investigation into immigration detention centres, Newman said the fact asylum seekers were still in the care of the immigration department made it difficult for them to speak out.
“The detainees that I’ve spoken to are not wanting to do that – they’re frightened,” she said. “They feel this will jeopardise any hope they have of getting a visa, so they won’t do that.
“I think that’s very disappointing and very concerning, and again saying these children are another class of children.”
Responding to detailed questions about the institutional responses and individual allegations surrounding sexual assault in immigration detention, an immigration spokeswoman said: “Many of these allegations were dealt with previously, including at Senate estimates and during the Cornall and Moss review.
“The department is also currently assisting a Senate inquiry into allegations at the Nauru regional processing centre.
“As the secretary has stated, the child protection panel is reviewing cases of abuse, neglect and exploitation of children in detention and regional processing centres, and providing advice on policies and procedures regarding child protection.”
As the allegations of serious assaults continue to surface, the question now being asked by Newman, Coleman and others familiar with the detention system is whether or not the department – as an institution – can ever deliver justice for asylum seekers who have been sexually assaulted.