Submission to National Inquiry
into Children in Immigration Detention from
Southern Communities Advocacy
Legal & Education Service (SCALES)
of Recommendations from SCALES
STRUCTURE OF SUBMISSION
BARRIERS TO PARTICIPATION
ARRIVAL AND RECEPTION
This submission has
been prepared by staff and law students from the Southern Communities
Advocacy Legal and Education Service Inc (SCALES). The students worked
on this submission as part of a course offered through Murdoch University
School of Law in Advanced Clinical Legal Education. This unit is conducted
at the School's Law Clinic - SCALES which is also a community legal centre
that provides free legal advice, information and representation to low
income people living in the Kwinana, Rockingham and Mandurah areas. This
is an "in-house" clinical teaching facility where students are
responsible for providing legal services to clients under the supervision
of legal practitioners who are also lecturers employed at Murdoch University.
SCALES has received
funding from the Department of Immigration, Multicultural and Indigenous
Affairs (DIMIA) over the last few years through the Immigration Advice
and Application Assistance Scheme (IAAAS).
From July 1999 -
June 2001 it was to provide
(1) Application assistance to:
- Protection Visa
(PV) applicants in immigration detention (Perth IDC)
PV applicants in the community (Perth Metropolitan area)
non-PV applicants in the community (Perth Metropolitan area)
(2) Immigration advice
to disadvantaged members of the community (Perth Metropolitan area)
From July 2001 -
June 2002 it was to provide:
(1) Application assistance to:
PV applicants (including Temporary Protection Visa holders) in the community
(Perth Metropolitan area)
non-PV applicants in the community (Perth Metropolitan area)
(2) Immigration advice to disadvantaged members of the community (Perth
As part of its immigration
work we have advised and assisted asylum seekers and refugees both pre
and post detention in the Perth Immigration Detention Centre, Curtin IRPC
and the Port Hedland IRPC.
SCALES has assisted
refugee and asylum seeker children in immigration matters in the following
minors in the community on Temporary Protection Visas (TPVs)
- Children and
young people in detention applying for Protection Visas in their own
- Children and
young people in the community applying for Protection Visas in their
- Children and young
people in the community who are included in their parents application
for a Protection Visa as a member of the family unit.
SCALES works closely
with the Association for Services to Survivors of Torture and Trauma Survivors
(ASeTTS), Amnesty International Australia and the Coalition Assisting
Refugees After Detention (CARAD). SCALES has been involved with community
education on the refugee issue, delivering numerous talks and lectures
at Universities, conferences, public forums and community groups.
We have two solicitors
at SCALES who have previously worked with the Youth Legal Service (WA)
and the Youthlaw Unit at Legal Aid (WA). As such once we became involved
with the provision of immigration advice and assistance we have always
had an interest in the treatment and representation of children asylum
In representing and
advising young people and children SCALES' philosophy is to focus on trying
to elicit their views and choices.
The development and
research for these submissions was prepared by the law students enrolled
in Advanced Clinical Legal Education L300 in Summer 2001/2002
Supervised by Mary
Anne Kenny, Clinic Director and Senior Lecturer in Law, Murdoch University.
Summary of Recommendations
- That the use
of the term unaccompanied children be replaced by the term "separated
children" in accordance with the UNHCR (see page 6).
- That provision
be made for the release of children from detention with their parent
or carer once basic security, identity and health assessments are complete.
In that regard we support the Alternative Detention Models proposed
by HREOC in its Submission to the Senate Legal and Constitutional References
Committee inquiry into Australia's refugee and humanitarian program
(see page 15).
- The determination
as to whether a person should be released on a bridging visa from detention
on health grounds should be performed by a DIMIA officer who is separate
from the detention centre and independent medical evidence should be
considered, particularly on review of any decision to reject by an independent
review body such as the Migration Review Tribunal (see page 15).
- There should
be minimum procedural safeguards afforded to asylum seeking children
and their families, in accordance with UNHCR Revised Guidelines on
Applicable Criteria and Standards relating to the Detention of Asylum
Seekers special procedures should be set out for unaccompanied minors
that accord with Guidelines on Policies and Procedures in dealing
with Unaccompanied Children Seeking Asylum (see page 17).
government departments and professionals involved in providing services
to unaccompanied children must cooperate to ensure that the welfare
and rights of unaccompanied children are enhanced and protected. (Statement
of Good Practice, UNHCR & Save the Children) (see page 23).
- An organisation
independent of the Department of Immigration (such as the relevant state
child protection organisation) appoint a guardian or adviser as soon
as unaccompanied children arrive and are identified. The guardian or
adviser should have the necessary expertise to ensure the child's legal,
social, medical and psychological needs are safeguarded in accordance
with Article 5.7 of Guidelines on Policies and Procedures in dealing
with Unaccompanied Children Seeking Asylum(see page 23).
children seeking asylum should not be refused access to a territory
in accordance with Article 4 of the UNHCR's Guidelines on Policies
and Procedures in dealing with Unaccompanied Children Seeking Asylum
(1997) (see page 25).
- The Migration
Actand Migration Regulations be amended to provide a clearer
statutory scheme for children to apply for a protection visa (see page
- Children included
with their family's application, depending on their age and maturity
should be separately advised on and their views sought in accordance
with Article 12 of CROC (see page 26).
of children and young people:
- Children who
arrive in a family unit should have access to separate legal advice
Agents who represent children and young people should have skills
and experience in interviewing and working with children and young
- Children and
young people should be represented at all levels of the determination
for the preparation and lodgment of submissions on behalf of children
should be dictated by the times that are suitable for them.
- Funding of
representation of children should not be done on a tender basis.
(see page 30)
- Children who
- Section 48(2)(aa)
of the Migration Act be amended to ensure an exception exists
to allow children make an independent application where their interests
were not adequately represented (see page 32).
- The asylum seekers
currently located in Nauru, Manus Island and Christmas Island be given
the opportunity to access independent immigration advice(see page 36).
- Children should
be interviewed by people trained and experienced in child interview
techniques and in working with interpreters. The information needs to
be obtained from children in a manner that will elicit the most information
from them (see page 41).
- Provide permanent,
rather than temporary, protection visas for all children found to be
refugees (see page 45).
In 2000/2001, 1103
children were held in immigration detention centres in Australia, out
of a total 8401 detainees.
Offshore there are
approximately 278 children held in Manus, Christmas Island, Nauru and
Cocos, of which there are 37 unaccompanied in Christmas Island (Source:
UNHCR Feb 2002).
Figures from DIMIA
, as of 1 February 2002:
- The total number
of women and children in mainland Australian Immigration Detention Centres
- This number comprises
of 259 adult women, 224 male children, 141 female children.
- 13 unaccompanied
minors in detention.
- 9 unaccompanied
minors placed into alternative care of the South Australian Department
of Human Services provided through Family and Youth Services.
In deciding on the
content of this submission it was decided to focus on Chapter 7 "Legal
Status" of the background papers. The touchstone of this submission
will be measuring the treatment of child asylum seekers and refugees against
the standards that are set out in:
treaties particularly Convention on the Rights of the Child (1989)
("CROC") and the Convention relating to the Status of Refugees
(1951) and its 1967 Protocol (the "Refugee Convention").
- Guidelines relating
to refugee children from the United Nations High Commissioner for Refugees
(UNHCR) including: Guidelines on Refugee Children (1988), Refugee
Children: Guidelines on Protection and Care (1994) and Guidelines
on Policies and Procedures in dealing with Unaccompanied Children Seeking
of Good Practice" of the Separated Children in Europe Programme
(Save the Children/ UNHCR) (2000) and the European Council on Refugees
and Exiles Position on Refugee Children of November 1996
- UNHCR Revised
Guidelines on Applicable Criteria and Standards relating to the Detention
of Asylum Seekers(February 1999)
Some comparison and
examples will be drawn from the treatment of asylum seeking children in
other countries such as the US, Canada, UK and Denmark.
This submission will
consider the situation of children who arrive in Australia either with
other family members or on their own.
Whilst awaiting a
determination of their own claim or their parent/guardians claim for protection
under the Refugee Convention they are known as "asylum seekers."
Once their claim has been determined and they are accepted they are known
The term "separated
children" seems to be one that is now replaced the term "unaccompanied
minor" by international agencies such as the UNHCR. "Separated
children" are children under 18 years of age who are outside their
country of origin and separated from both parents, or their previous legal/customary
primary caregiver. Some children may be totally alone while others may
be living with extended family members. All such children are separated
children and entitled to international protection under a broad range
of international and regional instruments. 
children may be seeking asylum because of fear of persecution or the lack
of protection due to human rights violations, armed conflict or disturbances
in their own country. They may be the victims of trafficking for sexual
or other exploitation, or escap[ing] conditions of serious deprivation."
(From "Statement of Good Practice" of the Separated Children
in Europe Programme, Save the Children/UNHCR, 2000, at page 3)
As the term "unaccompanied
minor" is still used by DIMIA and courts in Australia it is easier
in this submission to refer to them as such for consistency. However there
appear to be good reasons to make recommendations that government agencies
adopt this name change.
That the use of the
term unaccompanied children be replaced by the term "separated
children" in accordance with the UNHCR.
3. STRUCTURE OF SUBMISSION
We would first like
to examine the barriers that refugee and asylum seeking children face
when engaged in legal processes.
This submission will
then examine the legal status of child asylum seekers and refugees:
- Arrival and reception
- Post - determination
processes and settlement in the community
The processing of
those people seeking asylum in Australia was altered dramatically in September
2001. We will consider the stages of processing under the pre-September
2001 and post-September 2001 regimes.
4. BARRIERS TO PARTICIPATION
The Australian legal
process in determining whether a child is a refugee requires a great deal
of personal responsibility and initiative, which is unusual to demand
of a child or young person. In the determination process, the asylum seeker
is ultimately responsible for providing relevant and adequate information
in order for the authorities to consider the case.
For the vast majority
of asylum seekers the application process is one that is stressful as
the stakes are so high.
In considering processes
that are appropriate to both allow real participation in the process and
that takes into account what is in a child's best interest there are a
number of factors to consider:
- Cultural and
- Torture trauma
- Separation from
- Detention environment
These will be considered
and Legal Capacity
In order to participate
in legal processes children are required to understand the processes and
have the intellectual, emotional and psychological skills necessary to
negotiate and pursue the process. The assumptions have traditionally been
that children are not developmentally mature in order to be able to participate
successfully in legal processes without assistance. 
Based on these general
assumptions, children have been excluded and viewed as incompetent to
give evidence. Traditionally the assumptions were that children were untruthful,
suggestible, prone to fantasy and unable to make accurate and reliable
observations about events. 
Because of assumptions
about children's incapacity, based on their age, some children are by
definition ineligible to participate in some legal processes. In addition
they are prohibited from being parties to civil actions and questioned
about soundness of their judgement and capacity to make fair and accurate
assessments of their interests. 
More recently there
has been a re-evaluation of children's capacities to participate in legal
processes, following psychological studies on children's cognitive abilities.
 Following decisions such as Gillick v Norfolk
and Wisbech Area Health Authority  in the House
of Lords and the High Court's decision in Marion's case , 
the focus has been on the individual child rather than on general rules
for all children.
Article 12 of CROC
embodies this principle of an evolving capacity to participate. Where
children are seen to be capable of forming a view, then they have a right
to express that view and have it taken into account and given due weight
in accordance with age and maturity of the individual child. 
Although a child
may be considered capable to participate in legal processes, there may
still be barriers to implementing appropriate participation by children.
The processes themselves are not designed for participation by children,
but made and implemented by adults, with adult attributes. The language
is jargonistic and the systems are complicated and can be overwhelming
to the child participant. 
4.2 Culture and
from culturally and linguistically diverse backgrounds (CALD) are not
a homogenous group, they may often face common difficulties with regard
to their participation in legal processes. In general, children of CALD
tend to find the legal processes involved in obtaining these services
bewildering and marginalising. 
interpreters is often a critical issue when dealing with CALD children.
There are many different dialects from one country and often government
officers are not aware of the subtle complexities of an individual's language
needs. As an example there are no NAATI qualified Mon 
interpreters in Australia. The Mon Haka dialect has no similarity to the
Burmese language, yet Burmese interpreters are used.
If an interpreter
is, or is perceived to be, from a background that the client may not feel
comfortable with (e.g. for ethnic or religious reasons) this will inhibit
free and open communication.
Another issue to
be sensitive to in respect of interpreters are factors such as the ethnicSensitivity
to cultural issues regarding the use of interpreters must be
Children of CALD
may also encounter:
- Inadequate and
inappropriately targeted information concerning law, procedures, rights
- Problematic relations
with authority/detention officers.
- Inadequate research
and evaluation of multicultural issues in the youth area.
From the child's
point of view, DIMIA Officers are authority figures and foreign government
officials. Children may have had experiences which give them good reason
to distrust persons in authority.
Children in some
cultures are taught to listen to adults but not to speak in their presence
at all. Other children may have spent time in school or other environments
where providing answers to questions is expected and saying "I don't
know" is typically discouraged. 
in a protection visa case the children are expected to explain their background,
the motive for applying for asylum, political activities of the child
or family-members etc. The interviews are almost always dealing with themes
that are emotionally disturbing to the child, such as physical assaults
on the child or family-members, violence and war, detention, torture,
death and fear.
Research within cognitive
psychology has shown that the ability to acquire knowledge and solve problems
is reduced during conditions of anxiety and depression. The experience
of traumas can thus affect the cognitive competence of the child and the
ability of the child to pass on information during interviews in the asylum
process. This should be taken into account when considering whether the
individual child is sufficiently mature to take part in the asylum process
and how to conduct the interviews. 
4.4 Special considerations
- unaccompanied children
Many of these children
have witnessed atrocities that adults cannot even imagine-death by the
masses, violence, and separation. Some unaccompanied children have even
seen their own family members slaughtered during flight. Others have been
forced to act as soldiers. Consequently, unaccompanied child asylum seekers
or refugees generally suffer extreme psychological trauma which requires
counselling and other psychological services.
exist in virtually every emergency situation in the world. 
Despite the fact that many unaccompanied children "confront additional
risks of murder, torture, rape . . . imprisonment, abduction, enslavement,
robbery, and starvation."  The loss of family
care and protection is perhaps the greatest loss to these children.
Thus, "even when they reach the apparent safety of a refugee or displaced
person camp, their problems-physical, mental, material, and cultural-may
be far from over." 
As one commentator
child, it is a terrifying experience in itself to have to flee to an
unknown land, having been abruptly wrenched away, under bombing or gunfire,
from home, school, friends, everything that was comforting, that gave
meaning to life . . . [however, if] the child loses his or her parents-the
only remaining reassuring link-and is left alone, it is absolutely atrocious."
that have argued for a specific convention to deal with unaccompanied
children seeking asylum. 
From Danish Refugee
Council, Unaccompanied Children in the Danish Asylum Process, April 2000
of separation and traumas can have a profound impact on the child's
emotional, cognitive and moral development. The table compares
the preconditions for a successful identity-process for teenagers with
the psychosocial reality of unaccompanied children. Mirroring the two
concepts clearly shows that the refugee children are especially vulnerable.
This fact must be reflected at all levels in a policy on their reception
and processing in the asylum procedure.
for a Successful Identity-process
Reality of Unaccompanied Children
and Sørensen 1999 p. 138)
are mostly in isolated outposts making provision of legal services difficult
and often only accessible via teleconferencing rather than face to face
contact. Children in remote communities face particular hardships in relation
to availability of services such as education, support services and other
needed resources.  Welfare and community services
are either inadequate or inaccessible and access to legal processes are
limited and more costly due to long distance communication.
The detention environment
also causes additional emotional stress. Detention centres hold many individuals
who have been exposed to high levels of trauma either in their countries
of origin or during their journey to Australia. 
After arrival, other factors may contribute or exacerbate existing psychological
distress including: witnessing acts of self-harm by other detainees, separation
from family, interviews with immigration officials and stress associated
with waiting for an outcome from the asylum application process. If detention
is prolonged there is also the experience of social isolation, boredom
and frustration. 
5. ARRIVAL AND RECEPTION
5.1 Pre- September
People who arrive
in Australia without authority can come either by boat or air. If an unlawful
non-citizen is detected they must be detained until they are either granted
a bridging visa or a substantive visa, or removed from Australia. 
provide clear grounds for acceptable, temporary detention of asylum-seekers.
The UNHCR has stated that "in view of the hardship which it involves,
detention should normally be avoided" 
Conclusion 44 (1986) of the Executive Committee of the UN High Commissioner
for Refugees (UNHCR) provides that detention should only be in exceptional
cases and on any of these grounds not be automatic or prolonged:
(a) to verify his
or her identity
(b) to determine the elements on which the claim to protection is based
(c) to deal with cases where refugee or asylum seekers have destroyed
their travel and/or identification documents, or
(d) to protect national security and public order.
To detain people
in order to act as a deterrent is counter to Article 31 of Refugees Convention:
not impose penalties, on account of their illegal entry or presence, on
refugees who, coming directly from a territory where their life or freedom
were threatened ... enter or are present in their territory without authorisation,
provided they present themselves without delay to the authorities and
show good cause for their illegal entry or presence."
CROC provides in
article 37(b) and (d) that detention of children shall be used only as
"a measure of last resort" and for the "shortest period
of time" and that a child have the right to legal assistance and
that detention be subject to prompt judicial or independent review.
There is provision
for children to be released from detention if granted a Bridging Visa
E (Subclass 051). We can see two possible grounds:
1. The applicant
is an eligible non-citizen as identified in sub-reg. 2.20(7), amongst
other things i.e. they have not turned 18 and a child welfare authority
of a State or Territory has certified that release from detention is
in the child's "best interests".
2. The applicant
is an eligible non-citizen as identified in sub-reg 2.20(9), i.e. they
have a special need (based on health or previous experience of torture
or trauma) in respect of which a medical specialist appointed by Immigration
has certified that the person cannot properly be cared for in a detention
environment; and in respect of whom the Minister is satisfied that adequate
arrangements have been made for his or her support in the community.
of eligibility for a bridging visa is processed by an officer from DIMIA.
From experience in assisting detainees in the making applications for
bridging visas, SCALES understands that it is DIMIA's policy to give the
processing of such bridging visas to the particular Centre Manager where
the detainee is located. In our submission this raises issues of a potential
conflict of interest as the criteria require an assessment that the individual's
best interests are not served by continuing to stay in that detention
centre. A Centre Manager, who has responsibility for the particular centre
may be loathe to make this particular finding regarding the centre they
are responsible for managing as it may imply a fault of the facilities.
Few children are
released on bridging visas as there is no basis for a parent or carer
to be released with them and so to release them may therefore not considered
in their "best interests."
Further comment will
be made with respect to unaccompanied children below at section 5.1.4.
We would like to
make some comment with respect to bridging visas granted on health grounds.
Under current Migration Regulations detainees cannot have a their
own medical expert to provide an opinion which could then be determined
by an independent body.
- That provision
be made for the release of children from detention with their parent
or carer once basic security, identity and health assessments are
complete. In that regard we support the Alternative Detention Models
proposed by HREOC in its Submission to the Senate Legal and Constitutional
References Committee inquiry into Australia's refugee and humanitarian
- The determination
as to whether a person should be released on a bridging visa from
detention on health grounds should be performed by a DIMIA officer
who is separate from the detention centre and independent medical
evidence should be considered, particularly on review of any decision
to reject by an independent review body such as the Migration Review
This consists of
medical screening, security and intelligence debriefings. New arrivals
are separated from other detainees in the centre to which they are sent.
The DIMIA Manager at each centre co-ordinates the Department's process
of examining applications for protection. 
The initial process
involves DIMIA accumulating all individuals' information including their
identity, reason for coming to Australia, route taken to Australia, and
information regarding the person's claim that may engage Australia's protection
obligations.  Using this information, DIMIA then
determines whether there are any prima facie issues that engage Australia's
protection obligation under the Convention. As a result of this initial
process, asylum seekers are "screened in" or "screened
out" of the refugee determination process. 
The asylum seekers
who are screened out are placed in "separation detention" until
they are removed from Australia, while asylum seekers screened in move
into the refugee determination process. 
An inquiry by the
Joint Standing Committee on Foreign Affairs, Defence and Trade DIMIA's
initial processing was both intimidating and threatening. Detainees commented
they had no knowledge of Australian law, the term "refugee"
in Australia differed from the term elsewhere, along with the difficult
interrogatory process of interviewing and claims of racial discrimination.
SCALES has been told
by adult asylum seekers that these initial periods after arrival are confusing
and unsettling. Some have told us that they did not know where they were
being taken; why they were going to a detention centre, what detention
actually meant and how long they were going to be in detention.
In terms of accessing
legal assistance when in isolation Peter Mares in his recent book Borderline
of the [Migration] Act effectively removes any obligation on an officer
of the Commonwealth to inform a detainee of his or her legal rights,
if that detainee has not successfully cleared immigration. Boat people
seeking asylum fall into this category and since late 1994 it has become
routine departmental practice not to advise them of their right to seek
a lawyer or of their right to apply for refugee status. 
There are minimal
guidelines with respect to the reception of unaccompanied minors. We were
only able to find two references:
1. DIMIA Procedure
Advice Manual unaccompanied minors are identified "special
needs applicants." In "order of priority for processing"
unaccompanied minors are placed after torture trauma cases, but before
those seeking a new protection visa. 
2. DIMIA Immigration
Detention Standards provides only that "unaccompanied minors
are detained under conditions which protect them from harmful influences
and which take account of the needs of their particular age and gender."
There should be minimum
procedural safeguards afforded to asylum seeking children and their
families, in accordance with UNHCR Revised Guidelines on Applicable
Criteria and Standards relating to the Detention of Asylum Seekers
special procedures should be set out for unaccompanied minors that
accord with Guidelines on Policies and Procedures in dealing with
Unaccompanied Children Seeking Asylum
Arrangements for Separated Children on Arrival
By definition unaccompanied
children have no responsible adult to represent and protect their best
interests. The major issue in Australia is: who is their responsible guardian
and what are their guardianship obligations?
Issues relating to
the guardianship of separated children have not been the subject of much
discussion or debate by commentators. It has only been considered recently
in a few decisions in the Federal Court, by North J in two judgements
in X v Minister for Immigration and Multicultural Affairs;
French J in Jaffari v Minister for Immigration and Multicultural Affairs
 there will also be a consideration of the issue
in the upcoming Full Court decision in Odhiamo v. Minister for Immigration
and Multicultural Affairs and Martizi v. Minister for Immigration
and Multicultural Affairs.
of Children) Act 1946 (Cth) ("IGOC Act") came into
operation on 30 December 1946 states in s.6:
shall be guardian of the person, and of the estate in Australia, of
every non-citizen child  who arrives in
Australia after the commencement of this Act to the exclusion of the
father and mother and every other guardian of the child, and shall have,
as guardian, the same rights, powers, duties, obligations and liabilities
as a natural guardian of the child would have, until the child reaches
the age of 18 years or leaves Australia permanently .
history of IGOC Act
The legislative history
of this provision was considered by French J in Jaffari v Minister
for Immigration and Multicultural Affairs:
Reading Speech for the Immigration (Guardianship of Children) Bill 1946
stated the purpose of the Act was "... to enable the Minister to
act as legal guardian of all children who will be brought to Australia
in future as immigrants under the auspices of any governmental or non-governmental
migration organisation" (Parl Deb H of R 31.7.46 p 3369). Arrangements
had been made prior to the enactment of the Act that "...the Commonwealth
Minister would be the legal guardian of the children, and shall delegate
his authority to the State departments" (Parl Deb H of R p 4090)."
The background of
the Act was also considered in detail in a recent report from the Senate
Community Affairs References Committee, Lost Innocents: Righting the
Record (2001) (the Lost Innocents Enquiry). The following passages
explain the Act's post - war migration context:
Commonwealth Government had only limited involvement with child migration
until after World War II. Before this time, immigration schemes were
largely handled by the individual States, each having its own Immigration
1920, the Commonwealth and the States entered into a joint scheme in
relation to migration, with the States' responsibilities being reception,
settlement and after-care. The Department of Immigration and Multicultural
Affairs stated that 'from the information available it appears that
State/Territory child welfare legislation and the general law covered
custody and guardianship arrangements for the children'. There was no
Commonwealth legislation governing the migration, settlement or guardianship
of migrant children prior to 1946 until the enactment of the Immigration
(Guardianship of Children) Act 1946 
legislative basis in Australia for post-war child migration was the
Immigration (Guardianship of Children) Act 1946 (IGOC Act). As noted
previously, prior to 1946 the Commonwealth Government had not legislated
for child migration. The IGOC Act placed legal guardianship in the Minister
for Immigration for child migrants when they arrived in Australia until
the child reached the age of 21 years. The intention of the Act was
to enable uniformity in regard to legal guardianship of the children."
The IGOC Act was
drafted in times when it was not contemplated the possibility of unaccompanied
minors making applications for visas in circumstances which apply today,
the IGOC Act reflects a regime of post war migration of selecting
and sponsoring children from overseas to come to Australia. It is not
well suited to a situation of "uninvited" children arriving
in Australia and applying for a visa onshore. 
The Minister's guardianship
responsibilities appear to either conflict with his duties to administer
the Migration Act, or to require that the child's best interests take
220.127.116.11 Who is
guardian? State or Federal?
Under section 5 of
the IGOC Act the Minister may delegate to any officer or authority
of the Commonwealth or of any State or Territory all or any of his powers
and functions under the Act.
Historically it appears
that it was intended that State Welfare authorities would assume primary
responsibility for children because of their knowledge and experience
with the local environments. DIMA provided the following advice to the
Lost Innocents enquiry on the definition of guardianship under the IGOC
further advice on the definition of 'guardianship'. The Department stated
that a guardian in relation to a child is 'a person with the right to
make decisions about the long-term needs of the child, as opposed to
the day to day care of the child The Immigration (Guardianship
of Children) Act modifies the traditional role of a guardian. The Act
does not define guardian, so the ordinary understanding of that word,
as discussed above, must be taken as the proper meaning. However, in
ascertaining legal obligations and liabilities by the Act, it must be
recognised that the legislation does in some ways modify the traditional
role of a guardian. For example, the Act envisages delegation of the
powers and functions of the Minister to State welfare authorities; and
together with the regulations, the legislation provides inspection and
other powers to State welfare authorities to supervise custody, and
envisages that the State authority would be primarily responsible for
supervision of the welfare and care of children covered by the Act."
The Senate Committee
Minister delegated his powers as guardian of child migrants to State welfare
authorities shortly after the legislation was enacted. The Department
stated that it was 'not intended that the Commonwealth exercise direct
control over the migrant children, but that State Authorities should assume
that role'. Indentures were made between the delegated State Government
welfare officials and voluntary organisations in which the organisations
agreed to bear the responsibility for the care and welfare of the children
placed under their care. The statutory scheme established by the IGOC
that the State authority would be primarily responsible for the supervision
of the welfare and care of child migrants. The local State authority
was likely to have better knowledge of the rights, powers and responsibilities
of guardians and custodians under child welfare legislation and a better
understanding of local conditions. In addition to this, officers of
the State authority dealing with child welfare matters on a regular
basis were better equipped to deal with these matters than the staff
of the Commonwealth Immigration Department. 
With respect to the
guardianship of unaccompanied minors the roles and responsibilities between
the state and commonwealth is not clear. This has been demonstrated in
the following cases before the Federal Court.
1. Evidence given
by the WA Department of Community Development in the case of Jaffari
are at present two memoranda of understanding being negotiated between
the Department of Immigration and Multicultural Affairs ("DIMA")
and the Western Australian Department of Community Development in relation
to unaccompanied minors who are applicants for protection visas. One
relates to unaccompanied minors released into the community on temporary
protection visas. The other relates to children in detention centres
and predominantly concerns what she described as "child protection
issues". By that term she meant "...concerns expressed about
the health, welfare and safety of children in detention centres; for
example allegations of abuse". There had been an arrangement in
place whereby DIMA advised the Department of Community Development of
the presence of unaccompanied minors at the Curtin Detention Centre
in Derby. That arrangement had ceased at the instigation of DIMA in
mid-May. The Department was still receiving notification of the arrival
unaccompanied minors at the Port Hedland Detention Centre. Ms Gupta
was unable to provide any information about whether any system of reporting
was in place to monitor the time spent by minors in the detention centres.
If a report were made to the Department about the condition of a particular
child in detention, the Department would make contact with DIMA officers
and make arrangements to assess the protection issues in respect of
the child. She was not aware of any role taken by the Director or any
officer of the Department in relation to applications by unaccompanied
minors for protection visas. She agreed with the proposition that there
is very little in the way of administrative procedures or guidelines
for the implementation of the Minister's delegation by officers of the
2. Evidence given
in an affidavit by the Centre Manager at Port Hedland IRPC in the recent
cases of Odhiambo v MIMA and Martizi v. MIMA:
the time of the appellants reception in the Centre, DCD [Department
for Community Development] was not informed, as at that time DCD had
no involvement with the Centre. DCD's involvement with the Centre commenced
in March 2001.
was not requested by DIMIA to become involved with the appellant until
late February 2002."
When the local state
welfare authorities become involved in a case and what their role is obviously
unclear and unsatisfactory. In the cases of the two children at Port Hedland
IRPC, the fact that DCD were not involved meant that then there could
have been no consideration of the appellants' ability to apply for a Bridging
Visa E (Subclass 051) as it specifically requires an opinion from the
relevant authority. 
and tensions in the relationship between the state authorities and DIMIA
is illustrated in the following exchange between a reporter from the Channel
Nine Sunday Programme and the Minister for Immigration. This conversation
was not with regard to an unaccompanied child but with respect to a recommendation
to release a child with his parents.
Minister, DOCS is the relevant authority in New South Wales for the
welfare of children and yet, you ignored their report recommending this
family be released into the community?
Let me just say that the report was not to release the child separately
from the mother and what we say is if the relevant authority recommends
the child be released into the community, that will happen. But if...
you ignored the DOCS report. If it says the whole family should be released
into the community.
Look, State authorities cannot determine that immigration detainees,
adults, be released. They will only be released if there is a lawful
basis upon which that can happen.
I just be clear about this: you're saying you'll ignore the relevant
child welfare authority if it doesn't fit in with your policy?
No, what I'm saying is the law makes it very clear, Commonwealth law,
the Migration Act, as to when people will be released into the community."
On this point it
is interesting to pay heed to a comment made by the Senate Committee in
the Lost Innocents enquiry:
Committee has received considerable documentary evidence from archival
records, in addition to the anecdotal evidence of the former child migrants,
clearly demonstrating a failure in their duty of care by those involved
at all levels with the child migration schemes. The inadequate levels
of monitoring and buck-passing of responsibilities appeared endemic
at all levels." 
It is therefore a
telling criticism that we may see the same patterns occurring again. Commenting
on the current regime French J:
There are dangers
in essaying, in the context of a particular application of a statute,
general observations about its operation and administration. It may
be noted, however, that arrangements for the proper supervision of the
welfare and protection of unaccompanied minors seeking asylum seem to
be somewhat inchoate with a presently ill-defined role on the part of
the Director of Community Development notwithstanding that the current
delegation has been in place for nearly two years. Moreover there appears
to be a significant discrepancy between the guidelines published by
the United Nations High Commissioner on Refugees ("UNHCR")
in respect of unaccompanied minors seeking asylum and the current administration
of the Migration Act in relation to such persons." 
- Organisations, government
departments and professionals involved in providing services to unaccompanied
children must cooperate to ensure that the welfare and rights of unaccompanied
children are enhanced and protected. (Statement of Good Practice,
UNHCR & Save the Children)
- An organisation
independent of the Department of Immigration (such as the relevant
state child protection organization) appoint a guardian or adviser
as soon as unaccompanied children arrive and are identified. The guardian
or adviser should have the necessary expertise to ensure the child's
legal, social, medical and psychological are safeguarded in accordance
with Article 5.7 of Guidelines on Policies and Procedures in dealing
with Unaccompanied Children Seeking Asylum
Arrivals Post September 2001
away of the Tampa in September 2001 and subsequent events signalled
a radically different approach toward Australia's handling of unauthorised
boat arrivals. Australia had previously permitted arrivals to land on
its territory, detained them, and permitted them to lodge asylum claims.
(Excision from MigrationZone) Act 2001
Under this law, certain
Australian territories have been "excised" from Australia's
"migration zone" for purposes related to unauthorized arrivals.
Any unauthorized person who arrives in an "excised offshore place"
will not be able to apply for a visa unless the Minister for Immigration
exercises his discretionary power. The affected territories are:
- Ashmore and Cartier
Islands in the Timor Sea.
- Christmas Island
in the Indian Ocean.
- Cocos (Keeling)
Islands in the Indian Ocean.
- Offshore resources
and other installations.
The US Committee
for Refugees has set out how subsequent boat arrivals were dealt with
 in summary:
- Some asylum seekers
were taken to Nauru for processing by the UNHCR
- Other asylum seekers
taken to Nauru are being processed by DIMIA after the UNHCR refused
to process them.
- Some asylum seekers
have been detained on Christmas Island to be processed by DIMIA
- Navy officials
have "pushed back" into international waters two boats from
Indonesia that arrived near Ashmore Reef
In respect of the
"push backs" of boats As the US Committee for Refugees concluded:
Australia may not technically be violating the UN Refugee Convention's
prohibition on refoulement when it pushes boats of asylum seekers back
into international waters, it is certainly violating the spirit of the
Convention-as well as general humanitarian principles-by sending the
asylum seekers to unknown dangers on the high seas or to countries that
may return them to persecution. While there have not as yet been any
known incidents of direct or indirect refoulement of persons pushed
back by Australia, countries in the region that are not signatories
to the Convention, such as Indonesia (which is the likely destination
of boats pushed back by Australia), will not guarantee that asylum seekers
will be protected from return to countries where they could face persecution."
Children off - shore
It is interesting
to note that under the IGOC Act the Minister is the guardian for
all non-citizen children that arrive within "Australia." This
Act has not been amended with respect to the changes made to the Migration
zone. It appears that the Minister is the guardian for all of the children
that are on Christmas Island and those that have come with Australia's
territory whether or not they have been subsequently removed from the
As guardian the Minister
is therefore to act in the children's best interests - which surely must
mean allowing them access to the protection application system within
Australian government should act in accordance with their guardianship
obligations and Article 4 of the UNHCR's Guidelines on Policies and
Procedures in dealing with Unaccompanied Children Seeking Asylum (1997)
- 4.1 Because of his/her
vulnerability, an unaccompanied child seeking asylum should not be
refused access to the territory and his/her claim should always be
considered under the normal refugee determination procedure.
- 4.2 Upon arrival,
a child should be provided with a legal representative. The claims
of unaccompanied children should be examined in a manner which is
both fair and age appropriate."
6. APPLICATION DETERMINATION
shall take appropriate measures to ensure that a child who is seeking
refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied
or accompanied by his or her parents or by any other person, receive
appropriate protection and humanitarian assistance in the enjoyment
of applicable rights set forth in the present Convention and in other
international human rights or humanitarian instruments to which the
said States are Parties. Article 22, Convention on the Rights of the
6.1 Process Pre-
6.1.1 How children may be involved in the application process
even an infant can be a "refugee"  and
can apply for a protection visa in his or her own right or as a member
of a family unit. However the procedure is not clear. It was noted in
the case of Al Raied v Minister for Immigration and Multicultural Affairs:
Act and regulations do not appear to provide a cohesive and comprehensive
scheme which makes clear the position of children, and an infant in
particular, to apply for a protection visa in their own right or be
added to an application of a parent and the position of the child at
the various stages of administrative decision making and review. .
it may be desirable for the statutory scheme to be reviewed and the
Children who arrive
unaccompanied and lodge claims of their own or children who arrive as
part of a family unit and lodge claims as part of the family unit are
all involved in a complex determination process. Unaccompanied children
who are screened in will be provided with their own legal representative
and have direct contact with DIMIA, this process will be examined further
below. While children who arrive with their family may not be consulted
at all about their views during the determination legal process. Their
claims will often be "subsumed" within their families and the
authorities will assume their parent or guardian will advise them of the
process. SCALES has been told by some teenage children that they were
never spoken to by DIMIA authorities or a lawyer about the application.
- The Migration Act
and Migration Regulations be amended to provide a clearer statutory
scheme for children to apply for a protection visa.
- Children included
with their family's application, depending on their age and maturity
should be separately advised on and their views sought in accordance
with Article 12 of CROC.
6.1.2 Legal Representation
If DIMIA determines
that Australia's protection obligations are engaged, the individual is
eligible for an "onshore protection interview," a substantive
interview assessing the applicant's claim for refugee protection. Each
applicant is assigned to a DIMIA protection visa officer as well as to
a registered migration agent who represents the client. DIMIA pays the
migration agents through the Immigration Advice and Application Assistance
The migration agent
visits the asylum seeker at the detention centre, explains the application
process, interviews the person, and completes the protection visa form.
The process is often hurried, as Peter Mares, author of Borderline:
Australia's Treatment of Refugees and Asylum Seekers, explains:
A detail missed
at this initial stage can prove disastrous, but there is pressure on
migration agents to get the job done quickly because applications made
from detention must be completed within three working days. The three-day
rule is usually enforced strictly with "airplane people" who
arrive at major city airports, although, with DIMA's agreement, it has
been relaxed at times with mass boat arrivals, when the very numbers
render such a rule impractical.
DIMIA awards IAAAS
contracts based on a competitive tender process. According to DIMIA, it
gives such repeat business to contractors who demonstrate understanding
of the protection assessment process and an ability to respond quickly
to high volume workloads. Indeed when tendering
for an IAAAS contract to perform asylum seeker application assistance
to people in detention tenderers are required to provide figures on the
basis of seeing and completing at least three applications per day. This
means that the process can be hurried and is not dictated by the pace
at which a child may feel comfortable with.
An unaccompanied Hazara teenage boy from Afghanistan told SCALES that
when he arrived he was approximately 16 years old. He showed us a statement
prepared by his legal representative that was 2 pages long. He says
that he had more to tell his lawyer but she told him not to as he had
told her enough and that as long as "he was a Hazara and from Afghanistan
that was all they needed to show" and she had other people to see
There is no requirement
that tenderers have any experience or training in dealing with interviewing
or representation of children or young people. Indeed SCALES understands
that there are cases where a Migration Agents appointed under IAAAS in
dealing with a family group may only interview and draw up claims for
the parents of the group and not interview the children to determine whether
they have any claims separate to their parents.
There has been some
criticism of the work performed by IAAAS contractors
even some migration agents, say that DIMA has developed too close a
relationship with certain law firms, migration agent firms, or community
legal centers that rely on DIMA for a significant portion of their business,
causing agents to hesitate to criticize DIMA or to "make waves"
while representing clients. Some migration agents, they say, lack creativity
and aggressiveness in performing their work" 
By way of another
example we quote from the HREOC submission to the Full Court of the Federal
Court in Odhiambo v MIMA and Martizi v. MIMA:
to the application for review to the RRT, from the Minister's refusal
of his visa application, it appears that the Appellants had available
to them legal assistance of the same general category as is provided
to all persons in detention pursuant to the Immigration Advice and Application
Assistance Scheme. It is conceded that that Scheme did not extend beyond
assistance with the RRT: it is also apparently conceded that the solicitors
who are meant to assist the Appellants were in Melbourne. Mr Odhiambo
describes the assistance he received from the solicitors in paragraphs
7-9 of his affidavit. The Appellant, Peter Martizi, saw a person whose
name was not known to him, but whom he describes as a lawyer from Macpherson
& Kelley, at Port Hedland. The lawyer apparently attended the interview
and thereafter did not trouble to contact his client. The lawyer did
not assist to fill out an application to the RRT, although he appears
to have been allocated a lawyer from the same firm of solicitors for
the purpose of the hearing. The lawyer apparently attended the RRT hearing
by video conference, but did not speak. He had no further contact from
The IAAAS contract
only provides payment per person assisted at a flat rate. Providers are
Migration Agents and/or lawyers and have professional standards and are
bound to provide clients with full assistance to the best of their professional
responsibilities. Conversely each time a communication is made with a
client it eats into the funds provided, if a profit is sought there may
be a temptation to keep communication to a minimum in order to perform
the job required.
SCALES has dealt
with clients under an IAAAS contract in the Perth Airport Detention Centre.
Clients have on occasion been transferred to Port Hedland IRPC or Curtin
IRPC so we have had to attend those venues in order to perform the contract
Due to the nature
of the contract and the remote location IAAAS operators who provide assistance
in remote areas will often only see their client face to face on a limited
number of occasions: at the initial application stage; the DIMIA interview
and post DIMIA interview. They then leave and return to the eastern states.
Any further queries
regarding the processing of applications must be done by telephone or
letter. Given the lack of English skills the only practical way to communicate
is via telephone with the use of an interpreter. Detention facilities
make private rooms available for telephone calls, but the nature of a
pre-booked call with an interpreter allows little room for a broad discussion.
Time differences between Western Australia and the eastern states where
most IAAAS contractors have their offices also compound communication
If a decision by
the DIMIA is negative an advisor must go over the reasons for the decision
and prepare any further rebuttal evidence over the telephone. Again this
is very difficult and inappropriate in dealing with young people and children,
it makes trying to establish any rapport and pick up non-verbal cues impossible.
The IAAAS contracts
do not extend to actual representation of the applicant before the Refugee
Review Tribunal it will only cover the preparation of written submission.
Representation of children
and young people
- Children who arrive
in a family unit should have access to separate legal advice and assistance
- Migration Agents
who represent children and young people should have skills and experience
in interviewing and working with children and young people
- Children and young
people should be represented at all levels of the determination process
- Timelines for the
preparation and lodgment of submissions on behalf of children should
be dictated by the times that are suitable for them
- Funding of representation
of children should not be done on a tender basis
At present the procedure
for processing asylum seekers in Australia does not distinguish between
children and adults.  This is despite the fact that
children may not be able to articulate their claims to refugee status
in the same way as adults.
There are no guidelines
in place that set out issues officers should to be aware of when interviewing
children and in determining their claims. In contrast DIMIA has Gender
Guidelines that are in place to be used in determining asylum claims from
women. The guidelines were developed in order that DIMIA officers are
more responsive to the substantive and procedural aspects of gender related
This case example
involved an asylum seeker who was in the community. If he were in detention
the preparation and presentation of reports from child/adolescent counsellors
would have been impossible. The case example also illustrates a lack of
consultation with other NGOs and agencies that may have been able to provide
expert advice and guidance on appropriate interview techniques and on
the general processing of the application.
of claims - issues
by Primary Applicant bar to any further applications
Amendments made by
Migration Legislation Amendment Act (No. 6) 2001 to sections 36(2)
and s. 48A of the Migration Act were made to overcome the decision
by the Full Court of the Federal Court in Dranichnikov v Minister for
Immigration and Multicultural Affairs,  FCA 769 (22 June 2001)
which held that any person covered by a family unit application other
than the primary applicant was not an applicant for refugee status and
therefore not barred from lodging a separate application for a protection
visa under s.48 A.
The amendments aim
to exclude persons covered by an unsuccessful family unit application
from reapplying for refugee status in their own right.
In the case of children
who arrive with their families they may not even be interviewed initially
to see if they had any separate claim that could have been considered.
They are then statute barred from lodging a separate claim. There may
be many reasons associated with age and even gender as to why children
will not have provided details of their claims.
All refugee claims
should be assessed on their individual merits. While the Minister proposes
to allow dependent family members to be allowed to put forward refugee
claims at a later stage if there are compelling reasons,
the Minister's non-compellable discretion is an inadequate and inappropriate
safeguard. The inherent dangers of a bar on allowing individuals to present
their own refugee claims outweighs any potential advantage to be gained
by a person in obtaining a short period of additional time in Australia
whilst that application is considered.
Section 48(2)(aa) of
the Migration Act be amended to ensure an exception exists to allow
children make an independent application where their interests were
not adequately represented. This amendment would prevent Australia breaching
its obligations under articles 3(1), 12 and 22 of CROC, which provide
that the best interests of the child must be taken into account and
that the child has a right to participate in proceedings which concern
him or her.
Findings in relation
to the credibility of an asylum seeker has become absolutely crucial in
order for a claim to be successful.
this may arise in relation to a number of topics:
- Whether an applicant
can establish sufficient knowledge of their claimed country of nationality
or habitual residence in order to demonstrate that he/she is actually
from that country. In this respect DIMIA commonly question applicants
regarding political structures, institutions, language, government,
geography, culture and customs. Knowledge of such issues may be outside
the experience of many children and more "child friendly"
and age appropriate questions should be used.
- Whether an applicant
can give a consistent account of their claims across a number of interviews.
Again this may not be appropriate for children who may be reluctant
to talk to a stranger due to embarrassment or emotional upset and past
trauma. The fact that a child may reveal an important issue later in
the determination process should be considered in that context.
- Whether an applicant
can provide a chronological timeline of events. The DIMIA application
forms and interview questions commonly require applicants to provide
dates of certain events. This may not allow for cultural differences
regarding the recollection of events which may not relate to exact dates
This refers to the
requirement that persecution be "on account of" one of the five
Convention grounds: race, religion, nationality, political opinion, or
membership in a particular social group is critical.
The applicant is
required to provide some evidence, either direct or circumstantial, that
the harm he/she suffered is connected to the persecutor's intention to
harm the applicant, based on the applicant's race, religion, nationality,
political opinion, or membership in a particular social group.
contained in Migration Legislation Amendment Act (No. 6) 2001 mean
that in determining claims the decision maker must be satisfied that the
Convention reason is the essential and significant reason for the persecution.
In considering the
asylum claim of a child who has filed a separate asylum application, the
nexus requirement may be particularly difficult to determine because a
child may express fear or have experienced harm without understanding
the persecutor's intent. A child's incomplete understanding of the situation
does not necessarily mean that a nexus between the harm and a protected
ground does not exist.
Again there are no
requirements or guidelines to be followed by DIMIA officers in the interviewing
We note that the
UNHCR Guidelines provide:
procedural guarantees should include determination by a competent authority
fully qualified in asylum and refugee matters; where the age and maturity
of the child permits, the opportunity for a personal interview with
a qualified official before any final decision is made; and a possibility
to appeal for a formal review of the decision . ..
interviews should be conducted by specially qualified and trained representatives
of the refugee determination authority who will take into account
the special situation of unaccompanied children, in order to carry out
the refugee status assessment."
The UNHCR, which
had agreed to process the asylum seekers from the navy vessel the Manoora,
said it would not process a subsequent group, noting that Australia was
not following normal asylum procedures. 
UNHCR official Ellen
that the sort of arrangements of basically intercepting asylum seekers
on their way to a country and taking them elsewhere for processing is
inappropriate and inconsistent with the edifice of asylum that's been
built up over years We think it's more appropriate for them to
come to Australia and be processed under Australian law." 
In terms of the asylum
seekers in Nauru, Manus Island and Christmas Island the Australian government
has said that it will meet its international protection obligations under
the Refugee Convention by assessing any refugee claims. Unfortunately
there is not a great deal of publicly available information about this
process. The Hon. Gary Hardgrave described the process being used as follows:
of Immigration and Multicultural and Indigenous Affairs (DIMIA) has
developed a refugee assessment process for asylum seekers on excised
offshore places and declared countries which matches the UNHCR's refugee
determination arrangements. This process uses specifically trained DIMIA
officers to interview members of these groups. The DIMIA officers actively
identify, explore and assess any claims or information, which may relate
to a need for refugee protection."
A letter from the
MIA to the Minister for Immigration dated 3 May 2002 set out a number
of problems with this process:
1. The process is
not totally independent.
- The UNHCR's process
is one that is independent of the internal politics of any one country.
DIMIA officers may be using the same UNHCR determination process, but
it cannot be seen as fair and equitable when politicians and Australian
Government policy directly influence and control the DIMIA.
2. The process is
not always implemented as stated by the Hon. Gary Hardgrave.
- The MIA has heard
from an interpreter who has spent two months in Nauru that many interpreters
were frequently asked by the DIMIA case officers to take unsupervised
statements from the asylum seekers in relation to their claims.
3. The process does
not allow a "merits review".
- However, the
MIA is aware that if an unsuccessful applicant is brought to Australia
under the Migration Amendment Legislation Transitory Bill 2002, the
applicant has a right of review to the Refugee Review Tribunal that
can be requested after six months of detention in Australia.
4. The process does
not allow registered migration agents to be involved.
- At first glance,
it may appear that asylum seekers located in Nauru and on Manus Island
are being treated in the same way as those located in Australia. This
is not entirely correct as applicants in Australia are given the right
to consult a registered migration agent. The MIA believes that not all
asylum seekers are treated equally and that those located in Nauru and
on Manus Island are not being given the independent immigration advice
and assistance to which they are morally entitled. Furthermore, this
gives the Australian public the impression that the Australian Government
does not always act in a fair and just manner.
In a briefing held
at the DIMIA offices in Perth on 9 April 2002 DIMIA officers said that
the asylum seekers on Nauru and Manus Island were not barred from seeking
and having access to legal advice and assistance. The provision of advice
is obviously logistically problematic and in addition it is not clear
what systems DIMIA is using to process applications so it would be hard
to provide useful advice. As the asylum seekers are likely to not have
the funds to pay for legal assistance they will be seeking assistance
from lawyers to provide assistance on a pro bono basis.
the asylum seekers currently located in Nauru, Manus Island and Christmas
Island the opportunity to access independent immigration advice.
used in other countries
The Immigration and
Refugee Board of Canada were the first to introduce specific provisions
for children in 1996 via guidelines pursuant to the Immigration Act.
The guidelines differentiate between "accompanied" and "unaccompanied"
Procedural and evidentiary
issues gives primary consideration to " the best interests of the
child" and provides for the compulsory appointment of a 'designated
representative' for all refugee children, regardless of whether they are
accompanied or not. Mandatory criteria relating to that person's age,
experience, responsibilities and comprehension skills must be satisfied.
The designated representative's
- To retain counsel
- To instruct counsel
or assist the child in instructing counsel
- To make other
decisions with respect to the proceedings or to help the child make
- To inform the
child about various stages and proceedings of the claim
- To assist in
obtaining evidence in support of the claim
- To provide evidence
and be a witness in the claim
- To act in the
best interests of the child.
The following process
indicates how children are dealt with in the asylum process:
1. Processing claims
of unaccompanied children is a priority. Such children are to be identified
as soon as possible, and be given "scheduling and processing priority".
The Refugee Claim Officer (RCO) should be assigned immediately, and it
is preferred that the same staff deal with the same case from its inception.
The same provisions apply to interpreters. These people should be assigned
due to their experience.
2. A pre-hearing
conference is to be scheduled within 30 days of lodgement of application
forms. This can be used to determine what evidence can be provided and
the best way it can be obtained.
3. In the assessment
of evidence in each case should be considered individually according to
the weight to be given to the testimony as well as possible reasons for
any 'gaps' in evidence.
There is a great
deal of detail in the Canadian guidelines. In particular the procedure
of evidence must be explained to the child, ensuring that the nature of
proceedings and obligation to tell the truth is understood. The child's
level of communication should also be assessed and taken into account.
The way in which testimony is heard should be informal, with questioning
done in a sensitive manner. Ultimately, the process should be as time
efficient as possible.
6.3.2 United States
The United States
Immigration and Naturalization Service (INS) issued "Guidelines for
Children's Asylum Claims" in 1998. These guidelines are aimed more
specifically at unaccompanied minors and the directive purports to give
credence to the best interests of the child. Reference to the Canadian
standards is made in the INS. However, the United States document is much
Essentially the guidelines
recognise the special difficulties that children face, and aim to counter
this as much as possible via such provisions as:
asylum interviews, whereby a 'trusted-adult' is present. Asylum officers
must be trained on child specific issues. The guidelines also contain
a copy of an "Opening Statement", meant to put the child at
ease and facilitate their understanding of the process.
- Child sensitive
questioning is defined and great emphasis placed on evaluation of evidence
from the child's point of view.
- There are directives
for the legal analysis of claims, encouraging more sympathetic assessment
of requirements for 'persecution' in children's cases.
- Evidentiary recommendations
include application of a "benefit of the doubt" principle
to be applied where possible.
- All INS officers
in contact with children must read the guidelines and complete an in-service
training course reinforcing children's and cross-cultural issues.
There is no current
obligation on the US government to supply free legal counsel, however
it has been argued that a child's right to counsel should be assessed
on the severity of the matter and its outcome, not the matter itself.
That means that possible deportation would make asylum seekers deserving
of representation. There has not been a test case on this point as yet.
Human Rights groups
have also pointed out a "troubling conflict of interest" that
exists whereby the INS are both guardians of child asylum seekers and
are also responsible for determination of their claims.
When an unaccompanied
minor has been admitted to Denmark, the authorities will initially decide
whether the child is sufficiently mature to explain his or her asylum-motive
in the ordinary asylum determination procedure.
- Children above
the age of 15 are generally considered to be mature and are automatically
called in for an interview with the Immigration Service. On the other
hand children below the age of 12 are generally considered as immature,
and they are then automatically granted a temporary permission to stay
according to the Aliens Act Article 9 (2). The permission to stay is
temporary for three years and then becomes permanent.
- In cases of children
belonging to the age group between 12 and 15 years the police officer,
who conducted the first interview and registration of the child, contacts
the Immigration Service and comments on the maturity of the child. The
caseworker at the Immigration Service will then decide whether the child
is sufficiently mature.
- An unaccompanied
child, who is considered sufficiently mature, is processed in the ordinary
asylum determination procedure for adult asylum seekers. The only exception
is the presence of a representative from the Red Cross at each interview.
The representative ensures that the interview is conducted correctly
but cannot intervene or take any specific action in each case.
from Sweden, Norway and the Netherlands
From the Danish
the regulations of the Swedish Immigration Service, caseworkers interviewing
children must have specific skills, have shown interest in working with
the children and aim to match the interview to the age, maturity and
psychological condition of the child. At present, the four regional
Child- and Youth-Units under the Immigration Service have seven child-caseworkers.
(Frodlund, Save the Children Sweden p. 29)
the Child and Youth-Unit in Stockholm revised the methods of interviewing
unaccompanied children. At present, three caseworkers are dealing with
the children's cases, and they are qualified as a pedagogue, a journalist
and a lawyer. Since the 1996 revision, children at the age of 5-6 years
have been interviewed. The children have between one and six interviews
with the caseworker. The interviews are conducted in a more child-friendly
way and decisions are discussed within the team of child-caseworkers.
All caseworkers interviewing asylum-seekers receive monthly counselling
by a psychologist. (Interview with Ann-Sofie Holm, The Swedish Immigration
Service, in October 1999)
Netherlands former policemen or teachers interview the children, and
the decision in an asylum case is taken by a legal caseworker of the
Immigration and Naturalisation Department of the Ministry of Justice.
Because of a large increase in the number of unaccompanied minors applying
for asylum, the IND has had to employ new interviewers at short notice.
They have been recruited among former teachers and pedagogues, and the
IND has initiated a program of training new staff in interviewing children,
cultural issues etc.
the asylum process is under revision and the interviews of asylum seekers
will be transferred from the police to legal caseworkers at the Ministry
of Justice. Interviews with unaccompanied minors will be handled by
caseworkers who have received specific training."
We have had the benefit
of seeing the submission from the National Children's and Youth Law
Centre that recommends "children .. be interviewed by people trained
and experienced in child interview techniques and in working with interpreters.
The information needs to be obtained from children in a manner that
will elicit the most information from them. The method of obtaining
information from children should be different from that applied to adults."
(at page 18).
is in accordance with the UNHCRs Guidelines of Refugee Children article
5.12 and 5.13 which state that it is desirable that all interviews with
unaccompanied children are carried out by professionally qualified persons
and persons specially trained in refugee and children's issues and as
far as possible, interpreters should also be specially trained persons.
The claims of unaccompanied
children should be examined in a manner which is both fair and age appropriate.
by the Convention on the Rights of the Child
Each child "should grow up in a family environment, in an atmosphere
of happiness, love and understanding" (Preamble).
A child's right to "identity, including nationality, name and family
relations" should be preserved whenever possible (art. 8.1).
In creating alternate care solutions for an unaccompanied minor, "due
regard shall be paid to the desirability of continuity in a child's
upbringing and to the child's ethnic, religious, cultural and linguistic
background" (art. 20.1).
Protection Visas On shore
for unauthorised arrivals was introduced in October 1999. The visa lasts
for 3 years (36 months) with people able to apply for permanent protection
visa after 30 months. This means that the first TPV holders will be coming
up for their PPVs to be assessed in 2002. How they will be assessed depends
on whether they lodged their applications for PPVs (form 866) before or
after 27 September 2001.
If the application
lodged before 27 September 2001 to get the Permanent Protection Visa he
or she must show that if he or she still has a continuing need for protection
If the application
is lodged after 27 September 2001 a TPV holder will cannot be granted
a permanent protection visa if he or she has, since leaving his or her
home country resided, for a period of at least 7 days, in a country in
which they could have sought and obtained effective protection:
- of the country;
- through the
offices of the United Nations High Commissioner for Refugees located
in that country.
Protection Visas Offshore
On 27 September 2001,
the Government created a new TPV - Subclass 447 Secondary Movement Offshore
Entry (Temporary). The amendments provide that asylum seekers who arrive
in the territories excised from the Australian migration zone will be
known as "offshore entry persons" (s. 5(1) of Migration Act).
- They are prohibited
from applying for a visa in Australia unless the Minister allows them
to if it is in the "public interest" (s46A)
- In applying from
off-shore they are eligible for Subclass 447 Secondary Movement Offshore
Entry (Temporary) 36 Month temporary visa and they are not eligible
for a PPV (866.214).
The Minister, however,
may waive this requirement if he is satisfied that it is in the public
interest to do so. The power to waive is not personal to the Minister
- it can (and will be) delegated and a refusal to exercise the waiver
will, prima facie, be reviewable by the RRT. It is important to realise
that there is no ban on a subclass 447 visa holder making the application
for the 866 - the application will be valid and must be assessed by DIMA.
However, success depends entirely upon gaining the waiver.
7.1.3 Can holders
of subclass 447 and 785 visa Holders (post Sept 27 2001) visas ever get
While there is no
ban on 447 visa holders applying for a permanent subclass 866 protection
visa. Valid applications can be lodged and must be assessed by the DIMIA.
They will, however,
face the additional hurdles described above. Applicants who are unsuccessful
in obtaining a permanent visa will be assessed against criteria for a
785 visa and, in all probability, will be granted that visa. A failure
to gain permanent protection will not result in people being deported
back to countries where they may face persecution.
this is far from satisfactory. The goal of all refugees is to reestablish
a life, be reunited with family members, recover from trauma and plan
for the future. This is extremely difficult - if not impossible - when
life must be lived on a succession of temporary visas.
7.1.4 Lack of
Information about the process
The process to be
used toward the end of the 30 - 36 month period is leading to high levels
of anxiety among TPV holders.
In WA, SCALES has
been involved in a community project with a number of other NGOs and Community
Legal Centres such as the Association for Torture and Trauma Survivors
(ASeTTS); the Coalation Assisting Refugees After Detention (CARAD) and
the Sussex Street Community Legal Service (SSCLS) in order to provide
assistance to TPV holders in WA.
The project aims
to recruit, train and organise a group of volunteer migration agents,
solicitors, students and refugee advocates to assist TPV holders when
their visas are reviewed. We have had meetings with the WA Executive Director
of DIMIA who advised that they were waiting on a directive from the Minister
as to how to process applications.
The uncertainty of
the process and uncertainty regarding the future leads to high levels
of frustration amongst TPV holders. Similarly it is also very difficult
for refugee advocates to provide advice.
It is clear that
durable solutions particularly for unaccompanied children is vitally important.
It then allows the child to adjust to their new life here and settle.
met with a group of eight unaccompanied minors (15 - 18 years old) from
Afghanistan to explain to them the changes to the TPV made in September
2001. During the discussion it became apparent that the impermanence
of their TPVs had a limiting and subduing effect on their motivation
to integrate into Australian society. The strong sentiment amongst the
boys was that there was no real point to undertaking further education
or forming relationships in Australia as there was a real chance that
they could be back in their country of origin within a few years. They
felt then that if they were to return they would be better served to
work now and save money. There was also a strong feeling of non-acceptance
of them by the Australian government and they showed pessimism regarding
their situation improving.
The effect of the
TPVs in this instance resulted in a fractured nationality, insofar as
they felt like "temporary Australians" or extended visitors.
In a sense, the acquisition of a TPV did not equate to the acquisition
of an Australian nationality or identity for them.
The uncertainty of
their TPVs, the disinclination to continue with education or form meaningful
relationships will certainly have detrimental effects on their long-term
development and integration.
Perhaps the most
difficult aspect of the TPV is that it does not allow for family members
to be sponsored to Australia, nor does it allow the TPV holder to return
to Australia if they want to leave to visit family members.
Statistics from DIMIA
show that in the period between October 1999 and September 2000 42% of
unauthorised arrivals had members of their family unit (i.e. spouse and
or children) overseas.
The importance of
the reunification of the family unit is recognised by the international
by the General Assembly
[on the report of the Third Committee (A/56/578)]
56/136. Assistance to unaccompanied refugee minors
15 February 2002
6. Calls upon all
Governments, the Secretary-General, the Office of the High Commissioner,
all United Nations organizations, other international organizations
and non-governmental organizations concerned to exert the maximum effort
to assist and protect refugee minors and to expedite the return and
reunification with their families of unaccompanied refugee minors;
7. Urges the Office
of the High Commissioner, all United Nations organizations, other international
organizations and non-governmental organizations concerned to take appropriate
steps to mobilize resources commensurate with the needs and interests
of unaccompanied refugee minors and for their reunification with their
rather than temporary, protection visas for all children found to
If an application
for a protection visa is rejected by the Refugee Review Tribunal there
is practically no legal aid for an appeal to the Federal Court. However
judicial review is extremely limited due to recent amendments that further
narrow the grounds of appeal under the Migration Act. 
The fact that unaccompanied
minors are not provided with any legal advice or assistance at the appellate
level is contrary to the guidelines as set by the UNHCR. This was commented
on by French J in Jaffari v. MIMA:
provides little in the way of the kinds of protections contemplated
by the UNHCR guidelines. At the very least, there is a case for considering
the provision of legal advice and assistance to unaccompanied minors
up to and including the point of judicial review. It is of concern that
the application for judicial review in this case was lodged by a 15
year old non-citizen and lodged out of time thus depriving him of such
limited rights of review as he would otherwise have enjoyed."
of Children, 1996, Art.6 ; UNHCR Guidelines on Policies and Procedures
in dealing with Unaccompanied Children Seeking Asylum (1997), para.3.1;
the legal process.
(1985) 3 All ER 402.
v JWB and anor (1992) 175 CLR 215, 293.
100 in ALRC 84, 4. Children in the legal process.
ALRC 84, 4 Children in the legal process.
(Myanmar) an ethnic minority.
For Children's Asylum Claims, December 10, 1998.
the Danish Asylum Process, April 2000, at page 5.
Care And Protection In Wars, Natural Disasters, And Refugee Movements
Rights of the Child to Children in Armed Conflict", 6 TRANSNAT'L
L. & CONTEMP. PROBS. 329, 334 (1996).
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Journal of the American Medical Association 604 - 611.
Who've Come Across the Seas: The Report of the Commission's Inquiry Into
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has "not turned 18; enters Australia as a non-citizen; and intends,
or is intended, to become a permanent resident of Australia."
of Australia, Lost Innocents: Righting the Record (2001) at page 20.
of child refugees in Australia" 2001 Walter Murdoch Lecture, 31 October
of Australia, Lost Innocents: Righting the Record (2001) footnote number
59 at pp 26 - 27
"The Trauma of Refugee Children" May 5, 2002 available at http://news.ninemsn.com.au/sunday/cover_stories/article_1045.asp
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New Approach to Asylum Seekers, February 2002.
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of Human Rights at Villawood Immigration Detention Centre. Australian
Government Publishing Service, Canberra, 1983: 21.
Refugee and Humanitarian Visa Applicants Guidelines on Gender Issues for
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Journal of Refugee Law (special issue, Autumn 1997) at 195.
AAP Newsfeed, 10-2-01
Act 1998 which came into force on 27 September 2001.
Updated 9 January 2003.