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Submission to National Inquiry

into Children in Immigration Detention from

Southern Communities Advocacy

Legal & Education Service (SCALES)


Summary

of Recommendations from SCALES

1.

INTRODUCTION

2.

DEFINITIONS

3.

STRUCTURE OF SUBMISSION

4.

BARRIERS TO PARTICIPATION

5.

ARRIVAL AND RECEPTION

6.

APPLICATION DETERMINATION

7.

POST DETERMINATION


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)

  • disadvantaged

    PV applicants in the community (Perth Metropolitan area)

  • disadvantaged

    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:

  • disadvantaged

    PV applicants (including Temporary Protection Visa holders) in the community

    (Perth Metropolitan area)

  • disadvantaged

    non-PV applicants in the community (Perth Metropolitan area)

    (2) Immigration advice to disadvantaged members of the community (Perth

    Metropolitan area)

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

categories:

  • Unaccompanied

    minors in the community on Temporary Protection Visas (TPVs)

  • Children and

    young people in detention applying for Protection Visas in their own

    right

  • Children and

    young people in the community applying for Protection Visas in their

    own right

  • 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

seekers.

In representing and

advising young people and children SCALES' philosophy is to focus on trying

to elicit their views and choices.

Acknowledgements

The development and

research for these submissions was prepared by the law students enrolled

in Advanced Clinical Legal Education L300 in Summer 2001/2002

Natalie Barton

Maria Fifield

Lisa Howells

Marisha Jurek

Yvette Wiklund

Supervised by Mary

Anne Kenny, Clinic Director and Senior Lecturer in Law, Murdoch University.


Summary of Recommendations

from SCALES

Definitions

  • That the use

    of the term unaccompanied children be replaced by the term "separated

    children" in accordance with the UNHCR (see page 6).

Procedures upon

arrival

  • 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).

  • 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) (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).

  • Unaccompanied

    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).

Visa determination

procedures

  • The Migration

    Act and Migration Regulations be amended to provide a clearer

    statutory scheme for children to apply for a protection visa (see page

    26).

  • 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).

  • 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.

      (see page 30)

  • 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).

Post Determination

issues

  • Provide permanent,

    rather than temporary, protection visas for all children found to be

    refugees (see page 45).


1. INTRODUCTION

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

[1], as of 1 February 2002:

  • The total number

    of women and children in mainland Australian Immigration Detention Centres

    is 637.

  • 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:

  • International

    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

    Asylum (1997).

  • "Statement

    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.

2. DEFINITIONS

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

as "refugees."

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. [2]

"Separated

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.

Recommendation:

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
  • Application/processing

    of claims

  • 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:

  • Developmental

    capacity

  • Cultural and

    language differences

  • Torture trauma
  • Separation from

    family

  • Detention environment

These will be considered

below.

4.1 Developmental

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. [3]

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. [4]

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. [5]

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.

[6] Following decisions such as Gillick v Norfolk

and Wisbech Area Health Authority [7] in the House

of Lords and the High Court's decision in Marion's case , [8]

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. [9]

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. [10]

4.2 Culture and

Language

Although children

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. [11]

Accessing professional

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 [12]

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

    and obligations.

  • 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. [13]

4.3 Torture/Trauma

During interviews

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. [14]

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.

Unaccompanied children

exist in virtually every emergency situation in the world. [15]

Despite the fact that many unaccompanied children "confront additional

risks of murder, torture, rape . . . imprisonment, abduction, enslavement,

robbery, and starvation." [16] The loss of family

care and protection is perhaps the greatest loss to these children.[17]

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." [18]

As one commentator

noted:

"For a

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."

[19]

Some commentators

that have argued for a specific convention to deal with unaccompanied

children seeking asylum. [20]

From Danish Refugee

Council, Unaccompanied Children in the Danish Asylum Process, April 2000

"The experience

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.

Precondition

for a Successful Identity-process

The Psycho-social

Reality of Unaccompanied Children

  • presence

    of role-models

  • possibility

    of a level of integration between

  • the individual

    identity and the identity of the group

  • integration

    between the past, the present and the future

  • the necessary

    time for independence

(Erikson,

E. 1968)

  • loss of

    emotionally close relations

  • individual

    identity is damaged

  • lack of

    group-identity

  • the past:

    separation from culture

  • uncertain

    future

  • the present:

    coping with traumatic experiences

  • huge responsibility

    (in the asylum procedure, with feigned identity and responsibility

    for the family)

(Lindskov

and Sørensen 1999 p. 138)

4.5 Detention

Detention facilities

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. [21] 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. [22]

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. [23]

5. ARRIVAL AND RECEPTION

5.1 Pre- September

2001

5.1.1 Mandatory

Detention

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. [24]

International standards

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" [25]

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:

"States shall

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.

5.1.2 Bridging

Visas

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.

The determination

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.

Recommendations:

  • 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

  • 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

    Tribuna

5.1.3 Screening

Procedures

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. [26]

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. [27] 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. [28]

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. [29]

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.

[30]

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

found:

Section 193

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. [31]

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. [32]

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."

[33]

Recommendation

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

5.1.4 Guardianship

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;[34]

French J in Jaffari v Minister for Immigration and Multicultural Affairs

[35] 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.

Immigration (Guardianship

of Children) Act 1946 (Cth) ("IGOC Act") came into

operation on 30 December 1946 states in s.6:

The Minister

shall be guardian of the person, and of the estate in Australia, of

every non-citizen child [36] 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 … .

5.1.4.1 Legislative

history of IGOC Act

The legislative history

of this provision was considered by French J in Jaffari v Minister

for Immigration and Multicultural Affairs:

"The Second

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:

"2.40 The

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

Department.

"2.41 In

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 … [37]

"2.68 The

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."

[38]

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. [39]

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

priority. [40]

5.1.4.2 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

Act:

"DIMA provided

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."

[41]

The Senate Committee

found:

"2.71 The

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

Regulations:

…envisaged

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. [42]

(emphasis added)

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

v. MIMA:

"There

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

State Department."

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:

"35. At

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.

"36. DCD

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. [43]

The difficulties

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.

"REPORTER:

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?

PHILIP RUDDOCK:

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...

REPORTER: So

you ignored the DOCS report. If it says the whole family should be released

into the community.

PHILIP RUDDOCK:

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.

REPORTER: Can

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?

PHILIP RUDDOCK:

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."

[44]

On this point it

is interesting to pay heed to a comment made by the Senate Committee in

the Lost Innocents enquiry:

"5.35 The

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." [45]

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." [46]

Recommendations:

Inter-organisational

Co-operation

  • 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)

Independent Guardian

  • 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

5.2

Arrivals Post September 2001

Australia's turning

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.

5.2.1 Legislative

Changes

Migration Amendment

(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

[47] 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:

"Although

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."

[48]

5.2.2 Unaccompanied

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

territory.

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

Australia.

Recommendation: the

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)

which states:

  • 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

States Parties

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

Child.

6.1 Process Pre-

September 2001

6.1.1 How children may be involved in the application process

Clearly children,

even an infant can be a "refugee" [49] 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:

"39 The

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

position clarified."

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.

Recommendations:

  • 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

- IAAAS

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

Scheme (IAAAS).

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.[51] 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.

Case example

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

that day.

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

"Some observers,

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" [52]

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:

In relation

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 lawyer.

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

work.

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

difficulties.

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.

Recommendations

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

6.1.3 DIMIA/RRT

Interviews

At present the procedure

for processing asylum seekers in Australia does not distinguish between

children and adults. [53] 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

claims. [54]

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.

6.1.4 Determination

of claims - issues

6.1.4.1 Applications

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, [2001] 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,[55]

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.

Recommendation

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.

6.1.4.2 Credibility

Findings in relation

to the credibility of an asylum seeker has become absolutely crucial in

order for a claim to be successful.

Credibility issues

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

    or ages.

6.1.4.3 Nexus

Requirement

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.

Recent amendments

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.

[56]

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.

6.1.4.4 Interview

Techniques

Again there are no

requirements or guidelines to be followed by DIMIA officers in the interviewing

of children.

We note that the

UNHCR Guidelines provide:

"8.2 Minimum

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….…..

"8.4 The

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."

6.2. Processing

Off-shore

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. [57]

UNHCR official Ellen

Hansen said:

"We consider

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." [58]

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:

"The Department

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.

Recommendation: that

the asylum seekers currently located in Nauru, Manus Island and Christmas

Island the opportunity to access independent immigration advice.

6.3 Procedures

used in other countries

6.3.1 Canada

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"

children.

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

duties are:

  • 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

    those decisions

  • 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

more comprehensive.

Essentially the guidelines

recognise the special difficulties that children face, and aim to counter

this as much as possible via such provisions as:

  • "Child-friendly"

    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.

6.3.3 Denmark

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.

6.3.4 Experiences

from Sweden, Norway and the Netherlands

From the Danish

Refugee Council:

"Following

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)

"In 1996

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)

"In the

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.

"In Norway

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."

Recommendation

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).

This recommendation

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.

(Article 4.2)

7. POST DETERMINATION

Standards set

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).

7.1 Application

Accepted

7.1.1 Temporary

Protection Visas On shore

The ("TPV")

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

in Australia.

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;

      or

    • through the

      offices of the United Nations High Commissioner for Refugees located

      in that country.

7.1.2 Temporary

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

permanent residence?

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.

Obviously, however,

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.

7.1.5 Importance

of permanency

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.

Case Study

SCALES

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.

7.1.6 Reunification

of family

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

community.

Resolution adopted

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

families

Recommendation

Provide permanent,

rather than temporary, protection visas for all children found to

be refugees.

7.2 Application

Rejected

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. [59]

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:

"The Act

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."


1.

http://www.immi.gov.au/detention/women.htm

2. CROC, Arts. 1 & 22; Hague Convention for the Protection

of Children, 1996, Art.6 ; UNHCR Guidelines on Policies and Procedures

in dealing with Unaccompanied Children Seeking Asylum (1997), para.3.1;

3. Australian Law Reform Commission 84, 4 Children in

the legal process.

4. Ibid.

5. Ibid.

6. Ibid.

7. Gillick v Norfolk and Wisbech Area Health Authority

(1985) 3 All ER 402.

8. Secretary, Department of Health and Community Services

v JWB and anor (1992) 175 CLR 215, 293.

9. ALRC 84, 4. Children in the legal process.

10. SA dept of Family and Community Services IP Submission

100 in ALRC 84, 4. Children in the legal process.

11. Multicultural Interest Group IP Submission 137, in

ALRC 84, 4 Children in the legal process.

12. Mon is a language spoken by the Mon people in Burma

(Myanmar) an ethnic minority.

13. See Immigration and Naturalisation Service, Guidelines

For Children's Asylum Claims, December 10, 1998.

14. Danish Refugee Council, Unaccompanied Children in

the Danish Asylum Process, April 2000, at page 5.

15. Everett M. Ressler et al., Unaccompanied Children:

Care And Protection In Wars, Natural Disasters, And Refugee Movements

121-22 (1988).

16. S. Maslen, "Relevance of the Convention on the

Rights of the Child to Children in Armed Conflict", 6 TRANSNAT'L

L. & CONTEMP. PROBS. 329, 334 (1996).

17. "Repatriation and Reintegration of Unaccompanied

Refugee Children", MIGRATION WORLD MAG., Jan. 1, 1998, available

in 1998 WL 15705012.

18. Maslen, supra note 16 , at 334

19. C. Berthiaume, "Alone in the World," (1994)

Refugees Magazine, available through http://www.unhcr.ch

20. C. Gates, "IMMIGRATION PROJECT: Working Toward

a Global Discourse on Children's Rights: The Problem of Unaccompanied

Children and the International Response to Their Plight" (1999) 7

Ind. J. Global Leg. Stud. 299.

21. C Croce "Towards a national rural youth policy"

(1994) Transitions 26.

22. D. Silove, Z. Steel & C. Watters, "Policies

of deterrence and the mental health of asylum seekers," (2000) 284

Journal of the American Medical Association 604 - 611.

23. Human Rights and Equal Opportunity Commission. Those

Who've Come Across the Seas: The Report of the Commission's Inquiry Into

the Detention of Unauthorised Arrivals. Canberra: Commonwealth of Australia;

1998.

24. Migration Act 1958 ss 189, 196.

25. Conclusion 44 (1986) of the Executive Committee of

the UNHCR.

26. Joint Standing Committee on Foreign Affairs, Defence

and Trade, "Processing and Related Issues" in Completed Inquiry:

Visit to immigration centres 2001 at www.aph.gov.au/house/committee/jfadt/

73.

27. Ibid.

28. Ibid at 74.

29. Ibid.

30. Ibid at 78.

31. At page 37.

32. Section 2.4.1 of the Procedures Advice Manual

33. 9.2.1in Procedures Advice Manual 3

34. X v Minister for Immigration & Multicultural

Affairs (1999) 92 FCR 524 and X v Minister for Immigration & Multicultural

Affairs [2000] FCA 704 (29 May 2000).

35. [2001] FCA 985 (26 July 2001)

36. Defined in s 4AAA for these purposes as a child who

has "not turned 18; enters Australia as a non-citizen; and intends,

or is intended, to become a permanent resident of Australia."

37. Senate Community Affairs References Committee, Parliament

of Australia, Lost Innocents: Righting the Record (2001) at page 20.

38. Ibid at page 26

39. See comments by French J Jaffari v MIMA

40. See M. Rayner, "Political Pinballs: The plight

of child refugees in Australia" 2001 Walter Murdoch Lecture, 31 October

2001 (http://wwwcomm.murdoch.edu.au/lectures/murdoch_rayner.html)

41. Senate Community Affairs References Committee, Parliament

of Australia, Lost Innocents: Righting the Record (2001) footnote number

59 at pp 26 - 27

42. Ibid at pp 27 - 28 quoting from DIMA's submission.

43. See section 5.1.2 of these submissions.

44. Transcript from the Sunday Programme, Channel Nine,

"The Trauma of Refugee Children" May 5, 2002 available at http://news.ninemsn.com.au/sunday/cover_stories/article_1045.asp

45. Senate Community Affairs References Committee, Parliament

of Australia, Lost Innocents: Righting the Record (2001) at p 114

46. Jaffari v Minister for Immigration & Multicultural

Affairs [2001] FCA 1516 at para 43.

47. From US Committee for Refugees, Sea Change: Australia's

New Approach to Asylum Seekers, February 2002.

48. Ibid at page39.

49. Chen Shi Hai v Minister for Immigration and Multicultural

Affairs (2000) 74 ALJ

50. [2001] FCA 313.

51. US Committee for Refugees, Sea Change: Australia's

New Approach to Asylum Seekers, February 2002, at page 19.

52. Ibid.

53. Human Rights Commission Report no 6, The Observation

of Human Rights at Villawood Immigration Detention Centre. Australian

Government Publishing Service, Canberra, 1983: 21.

54. Department of Immigration and Multicultural Affairs,

Refugee and Humanitarian Visa Applicants Guidelines on Gender Issues for

Decision Makers, July 1996, Paras 3.12 and 3.13: reprinted in International

Journal of Refugee Law (special issue, Autumn 1997) at 195.

55. Section 48B Migration Act.

56. Section 91R(1)

57. "UN body refuses to process Tobruk asylum seekers,"

AAP Newsfeed, 10-2-01

58. "UNHCR rules out assessing Tobruk asylum seekers,"AAP

Newsfeed, 10-2-01

59. Migration Legislation Amendment (Judicial Review)

Act 1998 which came into force on 27 September 2001.

Last

Updated 9 January 2003.