Trauma in immigration detention: why our legal approaches matter
Many refugees and people seeking asylum experience serious harm in detention. Their physical and mental health suffer, both from their past experiences and from the trauma of detention itself. On top of that, his trauma makes it even harder for them to go through the asylum process.
Unfortunately, standard legal approaches can make things worse. That’s why it’s important for lawyers and caseworkers to use trauma-informed approaches. This means working in a way that is sensitive to a person’s past trauma, helping them feel safer and more supported. This not only helps them heal but also improves their ability to engage with their lawyer and the asylum process, which is key to their legal case.
You can download RACS’s free toolkit on trauma-informed legal practice here.
How immigration detention causes trauma
It is legal to seek asylum. International guidelines say that because seeking asylum is not an illegal act, any detention of people seeking asylum should be a last resort. Unfortunately, Australia’s system makes detention mandatory – the norm rather than the exception – for non-citizens who do not have a visa. Australia’s detention system is extremely harsh and damaging.
Causes of distress in both offshore and onshore detention include:
Being separated from family and friends
Feeling alone and powerless
Living in poor conditions with little support
No access to education or work opportunities
Abuse from officials
Hopelessness about the future due to uncertainty around legal matters
This is made worse by the long periods of time that people can be held in immigration detention. As at 31 December 2024, the average period of time for people held in detention in Australia was 467 days. In Canada, from 2023-2024 the average length of time in detention was 19 days.
Children suffer the most. Long-term separation from parents and family members can also lead to serious mental health issues.
At the end of 2024, the Australian Government introduced a Mobile Phone Ban Bill, giving officers a range of broad powers to do things like strip search onshore detainees or seize their mobile phones. Many people in detention have already endured abuse and torture before coming to Australia. Practices like strip searches can have a re-traumatising effect on individuals who have already suffered greatly. Mobile phones are also a critical lifeline to family, community or even legal help.
Offshore detention creates additional trauma. A Médecins Sans Frontières (MSF) report revealed that among 208 refugees and asylum seekers treated on Nauru:
62% had severe or moderate depression
60% had suicidal thoughts
47% suffered from psychosis
30% attempted suicide, including children
25% had anxiety disorders
18% had post-traumatic stress disorder (PTSD)
Many people have spoken about the deep uncertainty they face. One person told Human Rights Watch:
“Even if they had said when I came to Nauru that it would be 10 years, no problem. But they said it would be a maximum of five years and then we would go to another country. Which country, I don’t know.”
In 2020, the Refugee Council of Australia reported shocking cases of children stopping eating and attempting suicide. The report said that the Australian Government "has even tried to coerce a 63-year-old man dying of lung cancer to die in Taiwan, and to send a woman to Papua New Guinea to terminate her pregnancy, despite it being illegal there." As a result of Australia separating families between Nauru, Papua New Guinea and Australia, “[t]here are fathers who have never held their babies, mothers who have had to leave behind their children on Nauru.”
How trauma affects the legal process
The impact of detention doesn’t just affect mental health – it also makes it much harder for people to go through the legal process of seeking asylum.
At RACS, our lawyers have seen first-hand how prolonged detention harms refugees and people seeking asylum, especially young people. Many of our clients:
Suffer from severe anxiety and depression
Have difficulty sleeping, even with medication
Experience thoughts of self-harm
Have a deep mistrust of government officials and systems
Feel isolated and abandoned
One 17-year-old fled Afghanistan after being threatened by the Taliban. He was moved between Christmas Island and Manus Island, where he felt lost and deeply anxious. He told RACS:
“We feel torture in present and they treat us like criminals.”
Another 17-year-old escaped Pakistan after his home was burned down and his father was killed. He told RACS he was so stressed about his family’s safety that he wanted to end his life.
When people experience deep trauma, they often struggle to remember past events clearly. Trauma also changes the way our brains actually store and recall memories. However, in asylum cases, decision-makers expect precise and detailed memories of what happened – and the process of seeking protection in Australia requires individuals to repeat their experiences multiple times.
Anxiety, depression, and PTSD can make it extremely difficult for people to explain their case in a way that neatly meets these expectations and legal requirements. Some of our clients have been so unwell that we worry they cannot even understand their legal situation or give instructions to their lawyer.
On top of this, the rules about seeking asylum are more onerous on those in immigration detention than those in the community seeking protection. This includes being subject to shorter timeframes for responding to requests for information or appealing government decisions. For example, where applicants in the community have 35 days to respond to a permanent visa refusal, applicants in immigration detention have historically only had 7 days (recently increased to 14 days).
Why trauma-informed legal practice matters
A trauma-informed legal approach considers the emotional and psychological needs of clients. It helps people seeking asylum, refugees and the lawyers working with them.
Trauma-informed practice means:
Understanding how past trauma affects clients
Learning the skills to work with them in a supportive way
Avoiding actions that could make their trauma worse
Supporting both clients and legal workers to prevent burnout
Traditional legal approaches can be harsh and stressful, while trauma-informed approaches focus on care, respect, and understanding. Here’s how they differ:
Traditional legal service
Minimises coping strategies
Manage or eliminate bad client behaviour
Using labels to describe clients, e.g. “victim of DV”
Authoritative
Lawyer- and Court- or Department-focused
Creates systems that make clients work for support
Lawyers should come to work every day at their best and perform to leadership expectations
Trauma-informed legal service
Behaviour is communication and has a function
Provide opportunities for clients to heal from their trauma
Reframe behaviour to identify strengths
Collaborative
Whole client focused
Clients receive support regardless of their need
Leaders create strong organisational culture to combat trauma and stress associated with working with traumatised clients
In fact, if a lawyer tries to obtain instructions on sensitive topics without building rapport or relationship with the client, the client can feel unsafe or uncomfortable. They can be made to feel like they have no agency or control over their situation. That’s why it’s crucial for lawyers to be mindful of the power dynamics between themselves and their clients.
Better legal outcomes for refugees and people seeking asylum
Australia’s detention system isolates and disempowers people, making their suffering worse. It also complicates their legal cases, even when they have a strong need for protection.
By using trauma-informed legal practices, we can help people feel safe, respected, and empowered to tell their stories. This is not only the right thing to do—it also improves legal outcomes for refugees and people seeking asylum.
Our Trauma-Informed Legal Practice Toolkit includes guidance on how to provide better legal support to people affected by trauma.
