Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
the Equal Opportunity Commission
of Victoria
of legal status and entitlements of child refugees with temporary protection
visas (TPV)
duty of non-discrimination under the Convention on the Rights of the
Child (CROC)
language and culture rights
language rights
to special consideration based on children's needs
to education
right to a safe educational environment
to higher education
to employment
by employers
to material and other assistance
Overview
The Equal Opportunity
Commission of Victoria (the Commission) commends the enquiry by the Human
Rights and Equal Opportunity Commission into the circumstances of children
in immigration detention and the longer-term effects of detention on children
who have entered the Australian community. This submission considers the
post-detention experience and treatment of children and young adults released
into the community as recognised refugees, with particular reference to,
Ø the status
and rights of children who have entered the community following a period
of immigration detention to maintain links with a previous culture and
language; and to participate in the areas essential to children's development
such as education and employment;
Ø whether
the post-detention treatment of children complies with the duty of non-discrimination
under the Convention on the Rights of the Child (CROC) and reflected in
Australian human rights legislation.
In preparation for
this submission, the Commission consulted with a range of people involved
in the care and support of children and young adults who have entered
the Victorian community following a period of immigration detention, including
parents, a teacher, and community and volunteer workers. The Commission
also consults on an on-going basis with communities in which there is
a strong representation of refugees, notably, Arabic-speaking communities
[1] in Victoria.
Overview
of legal status and entitlements of child refugees with temporary protection
visas (TPV)
Children entering
the Australian community as a result of their (or their parents') application
for refugee status through the on-shore humanitarian program are entitled
to similar benefits available to adult TPV holders, subject to the following,
- unaccompanied
children released into the community remain in the care of the Minister
for Immigration, Multicultural and Indigenous Affairs who is their legal
guardian;
- unaccompanied
children may be entitled to state government-sponsored programs such
as the Refugee Minor Program (provided by the Community Care Division
of the Victorian Department of Human Services) [2]
and other programs established for the protection of this most vulnerable
group of children.
Subject to these
exceptions, children in the community issued with a TPV are subject to
the same restrictions imposed on adult TPV holders, including ineligibility
for family reunion rights; intensive English classes; Higher Education
Contribution Scheme (HECS); and the refugee settlement programs provided
to children holding permanent protection visas (PPV).
It is noted that
subsequent to a period of immigration detention, child refugees who are
identified at being at risk in the community may be eligible for services
in addition to the limited services provided by the Commonwealth to holders
of a TPV. These services are predominantly provided by local and state
government agencies, community and volunteer organisations and members
of the children's ethnic communities. It is also noted that some of these
services receive partial Commonwealth financial assistance. This submission
does not seek to address the adequacy or otherwise of these services or
the arrangements relating to their funding, but instead focuses on the
services that are formally provided to child refugees in the community
through Australia's humanitarian program and in particular those services
provided to children who become refugees through the off-shore humanitarian
program.
The duty
of non-discrimination under the Convention on the Rights of the Child
(CROC)
Freedom from discrimination
is an unequivocal right protected under the CROC. This right is given
expression in Article 2:
"1. States
parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination
of any kind, irrespective of the child's or his or her parent's or legal
guardian's race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability or
other status.
2. States Parties
shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the
status, activities, expressed opinions, or beliefs of the child's parents,
legal guardians, or family members."
This right is also
protected under the Convention on the Status of Refugees (Article 3) and
the International Covenant on Civil and Political Rights (ICCPR, Article
2.1). Insofar as this right is applicable to children, the right to freedom
from discrimination should be distinguished from 'second-tier' rights,
such as the right to state-sponsored childcare and education that are
contingent on states' progressive capacity to provide these services.
That is, states who have agreed to ratify these instruments may not depart
from their obligation to refrain from discrimination against children
based on issues related to the state's rate of economic development or
other internal or administrative matters.
The Commission has
argued in other forums that the right to freedom from discrimination is
one that should be advanced concomitantly with other rights; that it is
not a right that can be suspended in the purported exercise of other rights
.[3]
The equal enjoyment
by children of the rights encapsulated in the CROC, in the Commission's
submission, requires states to acknowledge the diverse needs of children
and to respond to specific instances of disadvantage by providing increased
assistance and support to children as is appropriate to their identified
needs. This approach accords with the widely recognised principle of substantive
equality stipulated by Tanaka J of the International Court of Justice
in the South West Africa Case (Second Phase) [1966] ICJ Rep 6 at
304-05:
"The principle
of equality before the law does not mean the absolute equality, namely
the equal treatment of men without regard to individual, concrete circumstances,
but it means the relative equality, namely the principle to treat equally
whare are equal and unequally what are unequal To treat unequal
matters differently according to their inequality is not only permitted
but required."
The provision of
substantive equality to marginalised and disadvantaged children is also
inherent in the notion of the best interests of the child, a principle
that underpins the CROC (Article 3.1) and much domestic Australian law.
Children's
language and culture rights
Children displaced
from their country of birth, or born in a country other than that of their
parents', receive particular recognition in the CROC. Significantly, the
CROC recognises the right of children displaced from their country of
birth, and members of minority communities in another state, to maintain
culture and language appropriate to the child's background and needs.
To this effect, Article 29(1) of the CROC states,
"State parties
agree that the education of the child shall be directed to (c)
The development of respect for the child's parents, his or her own cultural
identity, language and values, for the national values of the country
in which the child is living, the country from which he of she may originate,
and for civilizations different from his or her own".
Children entering
the community following (an often long) period of detention and, before
that, transit through other countries of asylum, are under Article 29(1)
entitled to assistance to gain knowledge of and familiarity with Australian
society and to re-establish links with the culture, language and traditions
of the community from which children have been forcibly displaced. This
right is particularly important for unaccompanied children who may have
had little or no contact with members of their immediate family and community
throughout the duration of their asylum. Children who are denied the appropriate
assistance after their release into the Australian community may have
exacerbated feelings of isolation and marginalisation, which has consequences
for the child's ability to establish lasting relationships in the community
with peers from the child's ethnic community and with the broader community.
These values are concomitant with the goals identified by those who specialise
in the treatment of children and adults who have endured situations of
conflict, torture, and trauma. These goals have particular relevance to
children. They are,
- to restore safety
and enhance control and reduce the disabling effects of fear and anxiety;
- to restore attachment
and connections to other human beings who can offer emotional support
and care;
- to restore meaning
and purpose to life; and
- to restore dignity
and value which includes reducing excessive shame and guilt .[4]
Whilst children who
enter the community through the on-shore humanitarian program are entitled
to counselling to overcome the worse effects of their asylum experience,
it is submitted that children within this group, through their limited
or complete lack of access to particular services, are denied an appropriate
environment and assistance to familiarise themselves with the mainstream
Australian community and to re-establish links with their original culture
and language. This in turn undermines the ability of children to achieve
the more challenging recovery goals mentioned above.
It is widely acknowledged
that children recovering from upheaval and traumatic events can benefit
from stability, in home, in relationships and routine [5].
In the Commission's submission, children released from detention and settled
in the Australian community are essentially denied a stable environment
conducive to recovery and integration into the community. In particular,
this group is denied the range of settlement support services provided
by the Commonwealth to refugees entering the community through the off-shore
humanitarian program such as short-term housing, provision of basic needs
such as furniture, clothing and food, and assistance accessing benefits
and programs such as intensive English instruction (each of these is discussed
in more detail below). These services are not provided to children recently
introduced to the Australian community except through the charity of state
government agencies, community and church organisations and volunteers
who at any one time may have insufficient resources to comprehensively
provide for the needs of child refugees, and, if accompanied, their families.
In this environment, child refugees and their families are treated as
emergency clients and a prioritised accordingly with other vulnerable
members of the community in need of assistance. The ability of these organisations
to organise and coordinate efforts to assist recent refugee arrivals is
frustrated by the short notice provided to them by the Commonwealth before
their release from detention [6]. Children not provided
with a stable environment upon release in the community are at greater
risk of homelessness, contact with the criminal justice system and psychological
problems [7].
Children's
language rights
Community workers
with children from refugee backgrounds have reported to the Commission
that children with limited English are likely to experience greater difficulty
establishing links in the community, adapting to social customs and learning
and finding employment than their peers. In turn this makes them vulnerable
to far greater levels of racism and intolerance. It is also observed that
children's proficiency in English is largely dependent on the individual
circumstances of the child in their country of origin and the events and
degree of upheaval since displacement from their country of origin. Accordingly,
children entering the Australian community through the humanitarian program
have vastly different language tuition needs and this is recognised through
the provision of English classes, including intensive language instruction,
to children who enter the community through the offshore humanitarian
program. This recognition can be contrasted to the position of child TPV
holders who are denied Commonwealth funded English tuition, irrespective
of the language needs of this group. Effectively, then, children reaching
Australia through the off-shore program and with relatively advanced English
proficiency may receive up to 510 hours of Commonwealth funded English
tuition whilst those arriving through the on-shore program and who may
have relatively limited English skills receive little or no language tuition
except in cases where this is provided by community organisations or volunteers.
Under Article 29
of the CROC children have a distinguishable right to maintain their connections
with traditional culture and language. This a significant right not only
for children re-establishing links with minority communities in Australia
but also for children who through enforced separation have had little
of no contact with members of their own culture for extended periods.
The right of child TPV holders to maintain their previous language and
cultural traditions does not appear to be protected by the Commonwealth
in any formal way. This only appears to occur through the ad hoc
services provided by community services and volunteers. For example, provision
of ethnic language tuition is usually carried out by volunteers during
after-school programs. A teacher of Arabic informed the Commission that
the comparative inexperience of teachers of Arabic in his experience had
reduced students' enthusiasm to maintain their learning of Arabic.
Right to
special consideration based on children's needs
The CROC recognises
that children living in exceptionally difficult circumstances require
special consideration in order for them to be able to enjoy the range
of other rights available to them [8] . This principle
is particularly applicable to children whose various experiences result
in a wide range of impairments that may become apparent during or subsequent
to a period of immigration detention in Australia . [9]
Broadly speaking,
the special needs of children from refugee backgrounds entering the Australian
community can be characterised as follows:
Diagram 1: Relative
support and other needs of children entering the community through Australia's
humanitarian program
It is acknowledged
that children exhibiting more serious symptoms of psychological harm as
a result of their asylum experiences can access specialised assistance,
such as torture and trauma counselling (as is required under Article 39
of the CROC). In the Commission's submission however, and according to
the principle of non-discrimination, all children who enter the community
following upheaval and a period of enforced detention may be at continuing
risk of psychological or developmental impairment and are entitled to
receive appropriate and targeted assistance beyond what is currently provided
to child TPV holders. This assistance is especially crucial during the
initial days and weeks of children's introduction to the community, when
the burden of securing basic living needs such as accommodation and employment
for the child's parents may take priority over the child's less urgent
but equally important needs such as psychological counselling. This early
period following release from detention can be seen as a window of opportunity
for healing, which if not taken will lead to further damage being done
to a child's development, self-esteem and well being.
The Commission submits
that there is an obligation on the Commonwealth to provide immediate assessment
of the needs of children who have endured upheaval and enforced detention
and provision of these needs, given that,
- children provided
with temporary residency status live in state of uncertainty concerning
their future eligibility to remain in Australia. This can create stress
and anxiety for children in the long-term ;[10]
- it is not appropriate
to expect schools to have the appropriate expertise to recognise and
respond to childhood development problems associated with the extraordinary
events endured by child refugees;
- parents of children
exhibiting psychological symptoms may not appreciate that professional
assistance beyond that offered by schools and general practitioners
may be required to ensure the child's long-term development; or parents
may not themselves be comfortable with referring their children to counsellors;
- following settlement
in the community, children (and, if accompanied, their parents) can
experience stress as a result of their sudden immersion in another culture.
This can lead to more serious problems for the child's development,
requiring counselling to assist them through this transition ;[11]
- children who appear
to adapt in the initial stages to life in the Australian community can
nevertheless accumulate the stress and despair of their parents over
time as the right to remain in Australia and the possibility of forced
removal from Australia continues.
The Commission submits
that Australia's obligation of non-discrimination under the CROC requires
the early identification of the special needs of children who, due to
experiences associated with seeking asylum, require additional and targeted
assistance and support. This should be ensured through a structured early
assessment and intervention service, independently administered, and made
available to children immediately upon release from detention. This service
should include referral where appropriate to other services that can assist
children's psychological and social integration into the community.
Special needs
of unaccompanied children
Unaccompanied child
asylum seekers are a particularly vulnerable group following release into
the community, and this is recognised to some extent though the provision
of specialised services to this group, such at the Refugee Minor Program,
administered by the Victorian Department of Human Services.
However the treatment
of unaccompanied minors, and in particular, their ineligibility for family
reunion rights appears to undermine the long-term health and welfare of
members of this group. The lack of family reunion rights for this group
also appears to breach the rights accorded to children separated from
family and community as a result of persecution, upheaval and displacement
from home and family. This right is expressly recognised in Articles 9
and 10(2) of the CROC. Furthermore, ineligibility for family reunion rights
appears to breach the obligation on states to ensure that parents can
exercise their responsibility for the care and upbringing of their children
(Article 18).
Children with
disabilities
The obligation of
provision of assistance to children with special needs is extended in
Article 23 of the CROC, which provides,
'1. States Parties
recognize that a mentally or physically disabled child should enjoy
a full and decent life, in conditions which ensure dignity, promote
self-reliance and facilitate the child's active participation in the
community.'
As mentioned in the
previous section, children entering the community following a period of
detention are particularly vulnerable to a range of psychological impairments,
some subtle, others more severe; this may be in addition to physical impairments
inflicted on children through exposure to conflict, torture or other forms
of abuse perpetuated in the child's country of origin; or through self-harm
whilst in detention.
Child TPV holders,
like adults, are entitled to full Medicare services and to torture and
trauma counselling services. Unlike those entering the community through
the offshore program, however, TPV holders do not receive formal assistance
(except through community and volunteer services) to lodge their Medicare
application, and incorrect lodgement of a Medicare application can delay
the provision of a Medicare card to the recipient. Furthermore, the task
of dealing with Australian officials can itself be a daunting - if not
terrifying - experience for children who either as a result of their prolonged
detention in Australia or persecution in their country of origin have
developed a profound fear and distrust of bureaucracy . [12]
These factors, it is submitted, frustrate the ability of parents, guardians
and others responsible for the care of children with disabilities to seek
appropriate assistance and to establish links with the necessary services
in the initial stages of settlement into the community.
Right to
education
It is widely recognised
that education plays a crucial role in the long-term development of children
and assists their integration into the community. The right of children
to enjoy a comprehensive education is clearly recognised in the CROC;
moreover it is a right extended to all children irrespective of whether
a child is a recognised citizen of the country in which he or she is detained
or has been released from any form of detention (CROC, Article 28).
Children who enter
the Australian community through the on-shore humanitarian program are
reported in many cases to have endured severe disruption to their education.
This disruption can occur in a number of ways:
- in the child's
country of birth, if, due to sex, race, ethnicity or religion or other
reason, a child is refused enrolment in a state-run school; or where,
for example, children are subject to compulsory military service ;[13]
- as a result of
a child's transit through other countries while seeking asylum, in refugee
camps or in detention facilities, where it is unlikely that structured
education is provided; and/or
- in immigration
detention whilst in Australian, where education provided to child asylum
seekers is not integrated into the mainstream education system.
It is also understood
that children's ability to fully participate in and benefit from education
can be diminished by previous exposure to traumatic events [14].
Children in this group may require additional and targeted assistance
to facilitate integration into the mainstream education system. The principle
of special consideration expressed in the CROC requires that children
with additional learning requirements should receive appropriate and timely
special assistance. This assistance should address the range of needs
of child TPV holders including factors outside the school environment
that may interfere with a child's ability to fully engage in their education,
such as lack of stable accommodation, drug abuse and criminal justice
issues.[15]
The right
to a safe educational environment
The right of children
to participate in education entails that education is provided in a safe
environment that is free from harassment, bullying and other harmful behaviours
of which vulnerable children are at greater risk. Child TPV holders and
other child refugees are a highly visible and hence vulnerable group in
the community. There is evidence that children in this group have been
subject to marginalisation and vilification within and outside the school
community [16]. Other incidents reported to the Commission
include,
- the parent of
a 13 year old child recounted that when asked by his teacher about his
expectations later in life, the child responded that he had no future
expectations and that this was due to his being a temporary resident;
- the practice of
children calling other children who have arrived in Australia through
informal means 'FOB' ('fresh off the boat');
- a parent of a
child who is a TPV holder stated that his child is inclined to conceal
his TPV status from his peers at school.
A further significant
impediment to the provision of a safe and stable learning environment
to children from refugee backgrounds is the non-availability, under the
Commonwealth humanitarian program, of intensive language classes to child
TPV holders. In the Commission's submission, the inability of children
in this group to set goals (academic or otherwise) beyond the three years'
duration of their residency status appears to underlie the difficulties
faced by children in this group, their parents and educators.
Right to
higher education
Article 28 of the
CROC provides,
"1. State
parties recognise the right of the child to education, and with a view
to achieving this right progressively and on the basis of equal opportunity,
they shall, in particular
(c) Make higher education accessible to all on the basis of capacity
by every appropriate means".
Whilst child TPV
holders are entitled to access primary and secondary education on the
same terms as other children, including PPV holders, this parity discontinues
at the tertiary education stage. Children and young adults who are TPV
holders and wish to participate in higher education are required to pay
full up-front fees and are not entitled to utilise the higher education
contribution scheme (HECS).
Whilst these conditions
are equivalent to those applied to overseas fee-paying students, their
application to children and young adults who have been granted refugee
status following their arrival in Australia has additional implications,
in particular,
- children and their
families who arrive in Australian through the humanitarian program have
frequently spent a large part - if not all - of their life assets seeking
and obtaining passage to a country of asylum [17].
Refugees in this group are not likely, immediately or even in the long-term,
to be able to afford the cost of entry to higher education in Australia;
- the option of
studying part-time is generally not available to children and young
adults with TPVs as most part-time courses would extend beyond the maximum
30 months of residency guaranteed by their visa;
The ability of child
and young TPV holders to access higher education is further impacted by
the denial to this group of intensive English classes.
In addition, the
Commission has become aware of many instances in which educational scholarships
are only offered to permanent Australian citizens and residents, thereby
excluding those with temporary residency status. This is the case under
many Commonwealth-funded training and apprenticeship schemes. Additionally,
many state education institutions also limit scholarships and other programs
to those with permanent residency status.
The harm to children
and young adults denied access to higher education can be significant,
particularly where children are encouraged by their families to pursue
a higher education as a way to gain acceptance in the country in which
they have been granted refugee status.
In the Commission's
submission, the conditions for entry into higher education in Australia
effectively exclude, and so indirectly discriminates against, those who
experience financial hardship as a result of their passage to Australia
or who, due their refugee status, are denied access to scholarships only
offered to permanent Australian residents. It is the Commission's view
that this exclusion is a breach of Article 28(1)(c) of the CROC.
In summary, the conditions
and restrictions of a child or young adult's temporary resident status
under the TPV arrangements constitute a significant barrier to this group
to participate in education to the highest level, a right enjoyed by permanent
Australian residents. As a consequence, children and young TPV holders
are effectively prevented from gaining the skills and qualifications necessary
for their long-term integration into the Australian workforce and their
self-sufficiency.
Right to
employment
The right to participate
in the workforce is formally extended to all refugees entering the community
irrespective of visa status. However, there are significant qualifications
to this right, which can be detrimental to children and young adults seeking
to enter the workforce for the first time. The most significant of these
- the ineligibility of child and young TPV holders for Commonwealth employment
services, such as Newstart and Job Network - can be seen to impact on
young people unfamiliar with the Australian workforce to a greater degree
than their peers. Child and young adult TPV holders denied assistance
to find suitable employment in Australia may experience particular difficulty
in view of the following:
- child and young
adults from refugee backgrounds often come from societies where work
is a highly valued institution and the pressure to obtain employment
considerable;
- children and young
adults recognised as refugees in Australia often attempt to raise money
to send to family members in their country of origin or in transit countries
[18]. This is in addition to the expenses of paying
rent and purchasing basic commodities;
- as previously
noted, child TPV holders generally cannot afford the cost of higher
education, due to the requirement to pay full up-front fees and employment
is the only remaining option to this group; and
- it is documented
that amongst the refugee community, there is stigma associated with
receiving government support, and in particular, the special benefit.
Discrimination
by employers
The Commission is
aware of anecdotal information that clearly indicates that refugees with
temporary visa status face disproportionate discrimination by employers
when applying for employment. Commonwealth job advertisements also frequently
state that applicants must be permanent Australian residents. Child and
young TPV holders may face the additional barrier of not being able to
provide Australian-based referees; or of not having secure and stable
accommodation, a frequent requirement of employers. As previously noted,
many child and young TPV holders have limited English and are not eligible
for intensive language assistance, which is a considerable barrier to
finding employment in a competitive and highly skilled job market.
The Commission has
considered the situation of individuals who may experience discrimination
in the employment market because of their TPV status, and is of the view
that it is often unlikely that present anti-discrimination laws would
provide a means of redress. Accordingly, TPV holders are not only at risk
of greater levels of discrimination, they are potentially denied the right
to complain about such treatment. This is not to suggest that the solution
necessarily rests with altering the definition of discrimination, rather
the cause (and thus the solution) appears to lie in the differential terms
attached to TPVs that can make discrimination against TPV holders reasonable
in certain circumstances.
An additional barrier
- and significant disincentive - for children and young adults with TPV
status seeking employment is the withdrawal of the special benefit when
a person accumulates 5,000 dollars or more in assets (this is not a restriction
that applies to other forms of benefits, such as Newstart). Concurrently,
any income earned by a TPV holder is offset through the payment of the
special benefit so that for every dollar earned, a dollar comes off the
recipient's special benefit. Loss of special benefit also entails loss
of other benefits, such as a Health Care card. A further consequence is
that children and young adult TPV holders who manage to find employment
can find themselves earning less money than they would earn under Special
Benefit. These factors have the potential to entrench chronic disadvantage
amongst members of this group, by ensuring that those on the level of
subsistence are penalised if they begin to acquire stability through employment.
It is also noted that the costs of finding and maintaining employment,
such as transport, uniform, and tools is likely to be beyond the reach
of a person with 5,000 dollars in assets.
Summary
Children and young
adults entering the job market for the first time are clearly placed at
a disadvantage compared to other job seekers, including those holding
permanent visas. Furthermore, child or young adult TPV holders who are
able to find employment risk losing their entitlement to other Commonwealth
assistance, such as Special Benefit and Health Care Card, which can have
serious implications for the person's health and welfare. The Commission
has been informed that this situation pushes child and young adults TPV
holders into positions of hardship; to the point, for example, where members
of this group have resorted to borrowing off moneylenders.
The overall effects
of the restrictions placed on children and young adults seeking employment,
it is submitted also appears to breach Article 17 of the Convention on
the Status of Refugees, which provides,
"Article
17. Wage-earning employment
1. The Contracting States shall accord to refugees lawfully staying
in their territory the most favourable treatment accorded to nationals
of a foreign country in the same circumstances, as regards the right
to engage in wage-earning employment."
In summary, the TPV
regime appears to compel children and young adults to choose between commencing
employment or, if a person can afford to, pursue their education. It is
submitted that this predicament places children and young people in a
position of over-reliance on government, community organisation or volunteer
assistance and affects their self-esteem. This situation is incompatible
with the obligation on states to recognise the right of every child to
a standard of living adequate for the child's physical, mental, spiritual,
moral and social development. [20]
Right to
material and other assistance
Article 27(3) of
the CROC provides,
'States Parties,
in accordance with national conditions and within their means, shall
take appropriate measures to assist parents and others responsible for
the child to implement this right and shall in case of need provide
material assistance and support programmes, particularly with regard
to nutrition, clothing and housing.'
Read in conjunction
with Article 2 of the CROC, children and young adults entering the community
and recognised as refugees are entitled to receive the assistance outlined
in Article 27(3) without distinction of any kind.
The denial to TPV
holders of most important of the support services provided to permanent
protection refugees calls into question the extent to which this right
is upheld in relation to this highly vulnerable and impoverished group.
And whilst it is acknowledged that state-based community service providers
and volunteers play a crucial role in the provision of these needs to
the extent that their resources allow, as signatory to the CROC and the
Convention on the Status of Refugees, the primary obligation for providing
these needs rests with the Commonwealth. There is also a question about
the ability of state-based community services to provide material and
other assistance to child and youth refugees who, following release, move
of their own accord interstate, away from the service providers with whom
they have had initial contact .[21]
Conclusion
It is widely recognised
that children released into the community following a period of immigration
detention constitute the most impoverished and traumatised group of children
in the Australian community. All children in this group, it is submitted,
are at risk of harm as a result of their experiences and this assumption
should influence every aspect of the treatment of children subsequent
to their release into the community. Australia has clearly stated obligations
under the CROC to ameliorate the worse effects of the experiences associated
with asylum seekers and also to assist children integrate into a stable
environment favourable to their recovery. These goals are also fundamental
to the notion of the best interests of children. It is the Commission's
view that the legal regime to which children who enter Australia by informal
means are submitted is fundamentally incompatible with these goals.
The Commission has
observed that children who enter the community following the asylum and
detention processes are at greater risk of exclusion from the services
that are essential to their immediate and long-term welfare. This situation
is exacerbated by discriminatory attitudes in the community that marginalise
and vilify children who have arrived in Australia by informal means. It
is also apparent that children in this group are undermined by the uncertainty
of their temporary residency status and the anxiety and restlessness this
creates.
Accordingly, the
Commission recommends a comprehensive and rigorous re-evaluation of the
arrangements for the care and treatment of children released from immigration
detention with a view of reaffirming their self-esteem, dignity and self-reliance.
This should primarily occur through the reinstatement of services, including
free language instruction and the range of settlement services, essential
to providing children with a stable and safe environment and assisting
their emotional and psychological recovery. Children without links in
the community to family or community should be placed in the care of an
agency specialising in childcare and with knowledge of culturally appropriate
practices, in addition the right of family reunion should be reinstated
for all unaccompanied children. Finally, children in the Australian community
should receive legal recognition and treatment in accordance with their
affirmed refugee status and irrespective of the circumstances that cause
the children to be separated from his or her country or origin, family
and community.
Bibliography:
Sarah Wise, 'Acculturation,
Childcare Selection and Developmental Wellbeing', paper delivered at the
Refugees, Humanitarian Settlers and Informal Arrivals' symposium, 26 April
2001.
Megan Saunders, 'Refugees
who endure the unthinkable', The Australian, 17 December 2001.
'Australian doctors
concerned over detention of children', Lateline, ABC Television, broadcast
19/3/2002.
Multicultural Affairs
Queensland, 'Temporary Protection Visa Holders in Queensland', 2002.
'Refugees who endure
the unthinkable', Encounter program, 29/7/01, Australian 17/12/01.
'Strangers in our
midst', Encounter, Radio National, 29/07/01.
part of this project, the Commission has appointed a dedicated Arabic-speaking
community educator to work closely with members of Victoria's Arabic-speaking
community.
2. Victorian Multicultural Commission website.
3. For example, the Commission submitted that the right
of single women and lesbians to be free from discrimination should not
be curtailed in the purported exercise of the right of children, under
the CROC, to the care and protection of parents (Cth Senate Legal and
Constitutional enquiry, 21 November 2000, 72.)
4. From teaching materials provided by the Victorian Foundation
for the Survivors of Torture.
5. Sarah Wise, 'Acculturation, Childcare Selection and
Developmental Wellbeing', paper delivered at the Refugees, Humanitarian
Settlers and Informal Arrivals' symposium, 26 April 2001.
6. According to the Victorian Department of Human Services
(DHS), no more than three to four days' notice is provided to State and
community services of refugees being released into the community by the
Department of Immigration, Multicultural and Indigenous Affairs (DIMIA)
(DHS website).
7. Megan Saunders, 'Refugees who endure the unthinkable',
The Australian, 17 December 2001.
9. This issue was discussed in 'Australian doctors concerned
over detention of children', Lateline, ABC Television, broadcast 19/3/2002.
10. 'Australian doctors concerned over detention of children',
ibid.
12. A father who with his child spent several months
in detention told the Commission that the child appeared to be wary of
police officers in the community. The father observed that his child appeared
to associate police officers with staff at the immigration centre at which
they were detained.
13. Amnesty International estimates that more than 300,000
under the age of 18 are fighting in conflicts around the world, Amnesty
International website, 'Child soldiers'.
14. 'Australian doctors concerned over detention of children',
ibid.
15. Part of this service is provided by the Victorian
Foundation for Survivors of Torture (VFST), which operates a school-based
program that, among other things, provides professional development programs
for teaching professionals to enhance the capacity of teachers to support
children and young people from refugee backgrounds.
16. Report by the Australian Arabic Council, 'Racial
vilification against Arabic and Muslim Australians in Light of the September
11th terrorist attacks in the United States', October 2001.
18. 'Strangers in our midst', Encounter, Radio National,
29/07/01.
19. Multicultural Affairs Queensland, 'Temporary Protection
Visa Holders in Queensland', page 23.
Last
Updated 10 October 2002.
