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 Organising Committee for
Seminar on Children and Families in Immigration and Detention Centres.
Social Justice and Social
Change Research, University of Western Sydney.
Committee
Members
Ms Brenda Bartlett
Dr Natalie Bolzan
Mr Micheal Darcy
Ms Justine O'Sullivan
Professor Jan Mason.
The assistance of
Dr Leanne Craze of Craze Lateral Solutions, in the preparation of this
submission is acknowledged.
May 2002
of Human Rights violations experienced by children and young people
in Australian Immigration Detention Centres
Violations of human rights instruments
Introduction
This submission has
been prepared following a public seminar held on 4 March 2002 to discuss
the experiences of children in Immigration Detention Centres in Australia.
The seminar, held at the University of Western Sydney (Macarthur - Bankstown),
was convened by Childhood and Youth Policy Research Unit of the Social
Justice and Social Change Research Centre, University of Western Sydney
in association with Defence for Children International (Australia) and
the Association of Child Welfare Agencies.
The purpose of the
seminar was to inform the research process of community agencies and other
interested groups who were seeking to prepare submissions for the Inquiry.
Approximately fifty people attended the seminar.
Addressing the seminar
were:
- Three young people
who spoke of their experiences prior to coming to Australia and in immigration
detention, from transcripts in English. These were read by Brenda Bartlett,
Justine O'Sulllivan, lecturers at UWS and Natalie Bolzan, senior lecturer
at UWS.
- Fran Gale, social
worker and lecturer at UWS, who gave details of a recent visit to the
Immigration Detention Centre at Woomera;
- Jackie Everett,
Lawyer and worker at Edmund Rice Centre and Jesuit Refugee Services.
who told of her discussions with children and young people during visits
to Immigration Detention Centres; and
- Chris Sidoti,
adjunct professor at UWS who outlined relevant international human rights
instruments and their implications for Australia's care of children
and young people in Immigration Detention Centres.
The seminar was chaired
by Judy Cashmore, President Defence for Children International (Australia).
This submission provides
an overview of the seminar's proceedings and deliberations and concludes
with a discussion of the vulnerability and special needs of refugee children.
Recommendations are made concerning action that is required of the Australian
Governments.
Observations concerning
the recounted experiences of children and young people in Immigration
Detention Centres
Quotations from transcripts
and discussions with children and young people about their experiences
in Immigration Detention Centres are provided in the following two sections.
Observations on
the voices of unaccompanied minors
Called by number
The young people
told of how throughout their detention they were called by officials by
their numbers and never by name:
'Police' call
us by our number, not our names
'police' didn't ask us what our names were, just called us by number
.
felt lonely, called by number, felt like a number
Roll call was done by number
Held by 'police'
The young people
knew and referred to the detention centre officers as 'police':
'Police' ran
the place..
'Police' should be helpful
Police should call us by name
Closed section
cramped and tense
The young people
told of how after they were initially interviewed they were detained in
a closed section for 25 days.
Very cramped
just like a small room
Main memories of closed section a lot of pressure
No playing, no space, all close, we couldn't go outside
20 beds in one room, we were all under 18 years of age
bad when it was very hot
nothing to do
Nothing to do
and no education
Young people told
of how there was nothing for them to do and how precious time was lost
when they could have been learning English and learning how to live in
the community.
Someone came
and talked about Australia - may be one hour, 2-3 times a week.
Wanted to study . Where there was a teacher .. We wanted
to learn English, have proper classes, learn grammar, wanted a serious
class
When released we couldn't speak English . But detained for nine
months at school I don't understand English, I can't do my homework
Couldn't initiate
interviews with authorities and weren't kept informed
The young people
told of how there was nothing they could do to initiate an interview and
how they were not kept informed about the process, what was happening
and what would happen next.
People were
told they could have a visa but didn't get it for another two or three
months cause a lot of anger process was finished
.. delay in getting visa . People didn't know what their rights
were
We assumed that those who went in first or were interviewed first would
be released first but it didn't happen like that didn't understand
time
Didn't get answers
Not able to get answers to questions
Not given option of a lawyer
Could not get an interview just told to wait
Just told to wait didn't understand what was wanted of us
Didn't get medical
treatment just punished
Young people told
of how when they or others self-harmed themselves out of frustration and
in some instances because of a pre-existing injury that was hurting causing
distress. After self-harming the young people told of how they were placed
in isolation.
'Police' just
say if you want to kill yourself you can
'police' took me to dark room called India kept there for
five days by self small area just about 3 by 4 metres, camera
there, no chair to sit on, small amount of light kept asking
me 'why did you hurt yourself'
difficult to get any medical help .. just put in 'India'
Wanting to die
Young people told
of how many just anted to die.
'Police' didn't
like us not to eat .. people fainted . Some unconscious
bad place better to die that be there
They were scared
of some of the detainees
people very stressed
there, mentally sick . Fights happened, scary things happening in
restaurant scared that something will happen
Temporary visa
results in a 'Catch 22' situation
Young people discussed
the unfairness of the practice and rules surrounding temporary visas.
If studying
full-time, special benefit stopped .. it's the law
Without a permanent visa I can't see my family
We are told we should go back home now that things are better .
But we know things aren't better . But Australian government is
telling us we should go back
Want a normal life want to study ,, worry we will be told our
visa has expired
Now that they have left the detention centre
The uncertainty is bothering us, worrying us, can't focus, can't work,
don't have permission
Hard to work if we don't know English but can't study English
full-time or we lose money
Shouldn't be putting everyone on a temporary visa just as a matter of
routine individual cases should be assessed as individual cases.
Observations on
the experiences of children in detention
Presenters told of
children's observations about their experience in Immigration Detention
Centres
Unwelcoming
Children told of
how barren the detention centres were:
- Hot dusty
- No shade
- No trees, no
grass, no flowers
Nothing to do
Children told of
how they was nothing for them to do.
- No school
- No play ground
As if in prison
Children could not
understand why they are in prison and why there were 'soldiers' at the
centres. Children also told of being called by their number.
Centres are terrifying
Children have told
of how terrifying the centres are, particularly when:
- fights and riots
break out;
- their parents
become ill, sad and distressed;
- they see their
parents treated disrespectfully and not afforded dignity;
- their parents
are punished and put in isolation;
- they see people
attempting suicide or hurting themselves; and
- blood has not
been washed out of the toilets and shower facilities;
Unaccompanied minors
felt particularly unsafe. Children also reported feeling unsafe in the
toilet and bathroom areas.
Aspects of
Human Rights violations experienced by children and young people in Australian
Immigration Detention Centres
On the basis of the
research process in conducting the seminar we have compiled an analysis
of aspects of human rights violations experienced by children and young
people held in Australian Immigration Detention, particularly those held
in the remote centres.
Incongruent and
unjust policies and practices
The policy and
practice of detaining unaccompanied minors
Unaccompanied minors held in Immigration Detention Centres are rendered
vulnerable in 'at risk' situations. These young people have not offended
but yet there are treated worse than Australian authorities are allowed
to treat juvenile offenders. Juvenile offenders are not detained in adult
facilities.
Incongruent definitions
and assumptions
Terms of 'queue-jumpers', 'self-selecting refugees' and 'economic
refuges' are embedded in current Australian policies and procedures concerning
people seeking asylum and refuge. For many people arriving illegally in
Australia there is no queue for them to jump. Many people have fled their
countries in an effort to save their lives. It is a false assumption to
make that because they have paid to leave their country, they are necessarily
'economic refugees' or 'self-selecting refugees'. Policies underpinned
by these concepts and terms often do not match the experiences and situation
of those who have arrived in Australia illegally.
Policies and practices
that place children and their families in situations of risk
Automatic detention of children and their families in immigration
detention centres, particularly the remotely isolated centres, places
them in situations of risk. The conditions in the remote centres are experienced
by children and their families as dehumanising, inhumane and traumatising
(or more correctly, re-traumatising.
Policies and practices
that set parents and families up to fail
When children are further traumatised by the conditions in immigration
detention centres, children lose trust in their parents' capacity to protect
them and look after them. Parents lose faith in their own capacity to
look after their children and blame themselves for what their children
are experiencing. As time in detention draws on, families lose hope in
their lives and their futures, hence the focus on suicide.
Policies and practices
that do not address the psychological, developmental and social needs
of children and young people
The automatic detention of children and young people seeking asylum
and refuge in Australia results in further traumatisation and suffering.
The children and young people view themselves as being punished. This
view is reinforced by the harshness of the conditions where they are kept
(i.e. in the remote centres) regarding those who supervise them as 'police'.
Children and young people are not receiving the educational, health and
psychological services they require. Neither are their social and age-specific
needs being met. Despite neither the parents nor the children having offended
their opportunities for education recreation and leisure are significantly
less than for adult prisoners. The conditions in which children and young
people seeking refuge and asylum are kept in the remote immigration detention
centres would not be tolerated in any correctional jurisdiction in Australia.
Policies and provisions
that set up families to fail on release
Current policies and practices with families seeking asylum and refuge
in Australia do not assist successful settlement in the community. Those
released into the community leave without:
- Sufficient information
about their rights and entitlements;
- Lack of information
about the local area into which they are to settle;
- Being linked into
support networks and community agencies;
- Being linked
into health services that can assist with immediate needs;
- Having been provided
with the opportunity of learning English whilst in detention; and
- Practical assistance
in the early stages after leaving detention
Temporary visa
policies and procedures that provide families with self-defeating options
Temporary visa policies and procedures result in families being placed
in 'limbo' and undermine the capacity of families to live independently
in the Australian community. Options provided under the policies are self-defeating
eg
- Lack of English
and qualification makes employment difficult, but if a person studies
full-time they cannot receive special benefit;
- Unaccompanied
young people or members of families cannot leave the country to see
other family members who have been left behind either in their country
of origin or in another country;
Australian policy
and procedures concerning people seeking refuge and asylum do not provide
mechanisms for their voices to be heard
In contrast with prisons where there are official visitors and a
raft of complaints mechanisms, both internal and independent, there do
not appear mechanisms for children and young people to have their voices
heard. They do not appear any mechanisms for children to complain or to
ask questions and receive information.
Current Violations
of human rights instruments
Having studied the
Convention on the Rights of the Child and the Refuge Convention, we have
used the articles contained therein as benchmarks against which to assess
the Australian Governments treatment of children and young people who
are seeking asylum or refuge in Australia. Outlined below is our assessment
of some of the rights from the Convention that are currently being violated
in Australian Immigration Detention Centres.
- The right of
all children to enjoy all the rights of the Convention without discrimination
of any kind (article 2)
Currently children
who are seeking refuge in Australia are discriminated against on the grounds
of their refugee status and because of the country of their nationality.
- The right to
survival and development (article 6)
Children and young people in Australian Immigration Detention Centreshave frequently come from situations of violence and hardship. In detention
they experience and/or witness violent and frightening events including
serious assaults, sexual abuse, people suiciding or self-harming and
people in heightened states of anxiety and distress. Some children and
young people are reported to be at risk of suicide. Acts of self-harm
are also reported among children and young people. The conditions in
which children and young people are held are adverse to their healthy
development.
- The best interests
of the child as a primary consideration in all actions concerning children
(article3.(1))
Decisions that affect the well-being and lives of children andyoung people in Australian Immigration Detention Centres do not appear
to be based on their best interests, rather the decisions appear to
be based more on their status of a refugee and on their country of origin.
- The right to
family life (articles 5,9, 18)
Familiesare not infrequently separated under Australian immigration law. At
times, a father might be released and the mother and children detained.
At other times, a father or both parents might be detained and a placement
in the community organised for one child, a number of siblings or all
siblings.
- Right to the
highest attainable standard of health (article 24)
It is clear, that children and young people held in AustralianImmigration Detention Centres, particular the remote centres, are far
from receiving the highest attainable level of health care, whether
this being general or specialist health care or mental health care.
- Right to education
- universal, compulsory, free and including primary, secondary and higher
education (articles 28 and 29)
Children and young people in detention either do not receive educationor receive it on an infrequent basis. Rules and regulations surrounding
temporary visas work against young people receiving the education they
require.
- Right to practice
their culture, language and religion (article 30)
This right to do this is hampered by life in the detention centres. - Right to freedom
from torture, ill-treatment and abuse (article 37)
The accounts of children and young people we have examined, demonstratethat children and young people held in Australian Immigration and Detention
Centres do experience ill treatment and abuse.
- Right to protection
from all forms of physical or mental violence, sexual abuse and exploitation
(articles 19 and 34)
Again, the accounts of children and young people we have examined,demonstrate that currently they are not protected from all forms of
physical or mental violence, sexual abuse and exploitation when they
are in Australian Immigration Detention Centres. Unaccompanied minors
are totally unprotected.
- Right to freedom
of expression, thought and conscience (articles 13, 14, 15)
As discussed above they are no mechanisms for refugee childrenand young people to have their voices and views heard.
- Right to protection
as a asylum seeking child (article 22)
Children and young people in Australian detention Centres do notreceive adequate protection.
- Right to recovery
from the effects of neglect, exploitation, abuse, torture or ill-treatment,
or armed conflicts (article 39)
Children and young people in Australian Immigration Detention Centreswitness riots and armed conflict (despite the rudimentary nature of
the arms). It could also be argued that by reason of the lack of provision
for age, gender and developmental needs of children and young people,
they are being neglected. In these circumstances, refugee children and
young people are not assisted to recovery from what they have experienced
and witnessed prior tot heir arrival in Australia. Post-trauma recovery
services are not available to those held in detention.
- Right not
to be deprived of liberty unlawfully or arbitrarily, with detention
only in conformity with the law, as a measure of last resort and for
the shortest appropriate period of time (article 37)
We consider the automatic detention of refuge children and youngpeople in Australian Immigration Centres to be done in an arbitrary
manner. Their detention is determined more on the basis of their status:
- As children
and young people;
- Of being
a refuge; and
- Of their country
of nationality or origin.
- As children
Policies that
are in place prevent their case being determined fully on its merits and
on their circumstances. Determinations in relation to children and young
people are not individually based.
- Right to access
to legal assistance and right to challenge their detention (article
37)
From the accounts we have examined, they appear to be practicesoccurring in relation to a person's right to legal assistance that would
not be tolerated in the Australian criminal justice system. Legal assistance
is difficult to obtain and people are not informed of their right in
relation to legal assistance and appeal. Further, the right to appeal
would appear to be a 'paper' right as the provisions governing appeal,
make it unlikely that a court of law would grant release.
- Right to rest
and play (article 31)
It is difficult to rest when witnessing high levels of distressand turmoil. Australian Immigration Detention Centres, particularly
the remote centres, lack age and gender specific toys and recreational
facilities. As discussed above, this situation would not be tolerated
in any juvenile justice detention Centre in Australia.
Right to privacy (article 16)
- Right to a standard
of living adequate for physical, mental, spiritual, moral and social
development (article 27)
The conditions in which refugee children and young people are detained
in Australia do not afford this basic right.
- If detained to
be treated with humanity and respect for their inherent dignity and
in a manner which takes into account their age (article 37)
Being called by their number does not equate to be treated with humanity
and respect fort heir inherent dignity.
- A refugee is someone
who 'owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, member ship of a particular social group or political
opinion, is outside the country of his nationality and is unable, or
owing to such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being outside
the country of his former habitual residence as a result of such events,
is unable or, owing to such fear, is unwilling to return to it.' Article
1 (A) (2) Refugee Convention
We are of the view
that the framework of legislation, policy, procedures and practices governing
Australia's response to people seeking refuge in this country, do not
accurately reflect the tenets of this article.
- Non-refoulement
is the principle that prohibits the forcible return f any person to
a country where they risk facing persecution on return. Article 33 (1),
Refugee Convention
- We are of the
view that the framework of legislation, policy, procedures and practices
governing Australia's response to people seeking refuge in this country,
are underpinned by the aim of making people from a specific set of countries
decide to return.
The vulnerability
and special needs of refugee/asylum seeking children and young people
We have studied the
UNHCR's Policy on Refuge Children (1993) and the updated UNHCR Guidelines
on Refugee Children. These guidelines are underpinned by a recognition
of vulnerability and special needs of children and young people seeking
refuge and asylum.
The guidelines reflect
the following concerns:
Refuge children
face far greater dangers to their safety and well being than the average
child. The sudden and violent onset of emergencies, the disruption of
families and community structures as well as the acute shortage of resources
with which most refugees are confronted, deeply affect the physical
and psychological wellbeing of refugee children. It is a sad fact that
infants and young children are often the earliest and most frequent
victims of violence, disease and malnutrition, which accompany population
displacement, and refugee outflows. In the aftermath of emergencies
and in search for solutions, the separation of families and familiar
structures continue to affect adversely refugee children of all ages.
This, helping refugee children to meet their physical and social needs
often means providing support to families and communities.
The guidelines focus
on refugee's children's developmental needs, their gender and cultural
framework, the special requirements of unaccompanied minors, and the particular
problems that arise in the context of repatriation and reintegration.
We are of the view that an independent audit against the UNHCR's guidelines
should be conducted of the framework of legislation, policy, procedures
and practices governing Australia's response to children and minors seeking
refuge in this country.
Recommendations
On the basis of our
research and of information available to us, we make the following recommendations.
- That decision-making
concerning children and young people seeking refuge in Australia be
made in terms of promoting their best interests and on an individual,
case-by-case basis.
- That unaccompanied
minors be placed with culturally appropriate families in the communities.
- That families
not be placed in isolated and remote Immigration Detention Centres.
- That placements
in the community be facilitated for families as soon as possible and
as a priority.
- That provision
be made for the psychological, developmental, educational and social
needs of children and young people seeking refuge in Australia.
- That the health,
psychological and disability needs of children and young people seeking
refuge in Australia be met and that the services and care provided be
in accord with acceptable standards in the community.
- That provision
be made for the needs of men and women as parents or as guardians.
- That the legal
situation concerning the loci of responsibility for the protection of
and accountability for children and minors in immigration detention
centres be clarified in a way which clearly identifies the roles and
responsibilities of the Commonwealth, States and Territories.
- That the Commonwealth
Department of Immigration establish an office of an Independent Inspector
General reporting directly to the Minister responsible for this area.
The responsibilities of this office would include regular reviewing
of immigration detention centres and the investigation and reporting
of complaints.
Last
Updated 10 October 2002.
