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Submission to the National Inquiry into Children in Immigration Detention

from

from the United Nations High Commissioner for Refugees


In accordance with

its supervisory responsibilities and Article 35 of the 1951 Convention

relating to the Status of Refugees, the Office of the United Nations High

Commissioner for Refugees (UNHCR) welcomes the opportunity to provide

a submission to the Human Rights and Equal Opportunity Commission (HREOC)

on its national inquiry into Children in Immigration Detention.

UNHCR wishes to

inform the HREOC that it has consistently conveyed to the Australian Government

its concerns regarding detention issues affecting asylum-seekers, while

recognising the Government's legitimate concern to combat people smuggling.

UNHCR, through this

submission, re-iterates its position on the matter, which is as follows:

I. Detention in General:

1. UNHCR views the

detention of asylum-seekers as inherently undesirable. The 1999 Guidelines

on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers

("UNHCR Detention Guidelines") set out under which exceptional

circumstances the detention of asylum-seekers may be resorted to. The

guidelines also spell out specific recommendations on the conditions of

detention. They are not binding, but represent UNHCR's reference point,

drawing upon the 1951 Convention relating to the Status of Refugees, relevant

conclusions of the Executive Committee [1] , and human

rights law and standards such as, inter alia, the Convention on

the Rights of the Child (CRC), the International Covenant on Civil and

Political Rights (ICCPR), and the 1990 U.N. Rules for the Protection of

Juveniles deprived of their Liberty.

2. The position of

asylum-seekers differs fundamentally from that of ordinary immigrants

in that they may not be in a position to comply with the legal formalities

for entry. This element, as well as the fact that asylum-seekers have

often had traumatic experiences, should be taken into account. In UNHCR's

view, detention of asylum-seekers may be exceptionally resorted to, if

prescribed by national law, for the following reasons, which are set out

in Excom Conclusion No.44:

a) to verify identity;

b) to determine

the elements on which the claim to refugee status or asylum is based;

c) to deal with

cases where refugees or asylum-seekers have destroyed their travel and/or

identity documents, or have used fraudulent documents in order to mislead

the authorities of the State in which they intend to claim asylum; or

d) to protect national

security or public order.

3. Australia's detention

policy applies to all unauthorised arrivals and does not single out asylum-seekers

as such. However, the vast majority of illegal arrivals are asylum-seekers.

In UNHCR's view, Australia's policy of mandatory detention of all asylum-seekers

arriving illegally is not consistent with applicable international standards,

including Executive Committee Conclusions. [2]

4. In UNHCR's view,

Australia's policy of mandatory detention does not fall within the exceptions

provided for in Excom Conclusion No.44. Under Australia's policy, detained

asylum-seekers are only released after they are issued a visa. The policy

does not take into account whether:

a) the asylum-seeker's

identity is already established;

b) the asylum-seeker

possessed valid documents, or if without documents, had no intention

to mislead, or has cooperated with the authorities;

c) the elements

on which the claim for refugee status is based have already been determined;

and

d) there is no

evidence that the asylum-seeker has criminal antecedents and/or affiliations

which are likely to pose a risk to national security or public order.

5. It is UNHCR's

view that the 'determination of the elements on which the asylum-seeker's

claim for refugee status is based', as spelt out in Excom Conclusion No.44,

does not mean the duration of the entire refugee status determination

procedure, or an unlimited period of time. In UNHCR's view, this means

that detention is exclusively for the purposes of a preliminary interview

to identify the basis of the asylum claim. This would only involve obtaining

essential facts from the asylum-seeker as to why asylum is being sought

and would not extend to a determination of the merits or otherwise of

the claim. In Australia, a protection visa is issued only once an asylum-seeker

is recognised as a refugee after undergoing the entire status determination

process. The Minister for Immigration and Multicultural and Indigenous

Affairs can issue a bridging visa and release the detained asylum-seeker

before status is finally determined. However, this power is exercised

as an exception and is discretionary, non-reviewable and non-compellable.

6. In UNHCR's view,

Australia's policy of mandatory detention also does not contain adequate

procedural safeguards. Minimum procedural guarantees to which detained

asylum-seekers are generally entitled in line with international standards,

are, in UNHCR's view, the following:

a) to receive prompt

and full communication of any order of detention, together with the

reasons for the order, and the rights in connection with the order,

in a language and terms they understand;

b) to be informed

of the right to legal counsel and, where possible, to receive free legal

aid;

c) to have the

decision of the detention subject to an automatic review before a judicial

or administrative body independent of the detaining authorities, to

be followed by regular periodic review of the necessity for the continuance

of detention, to which the asylum-seeker or his representative would

have the right to attend; and

d) either personally

or through a representative, to challenge the necessity of the deprivation

of liberty at the review hearing, and to rebut any findings made.

7. In the understanding

of the Office, the mandatory detention regime in Australia does not provide

an avenue for asylum-seekers to seek a judicial or administrative review

of the decision of their detention; or a follow-up mechanism which provides

for regular periodic review of the necessity for the continuance of their

detention; or to challenge the necessity of the deprivation of their liberty.

The Minister for Immigration and Multicultural and Indigenous Affairs

may release asylum-seekers from detention by issuing a bridging visa.

However, the Office understands that this power is discretionary, non-reviewable

and non-compellable.

II. Detention of Persons under

the Age of 18 Years:

8. In UNHCR's view,

as a rule, minors who are asylum-seekers should not be detained. [3]

In addition to the relevant provisions of the CRC, [4]

Article 37(b) of the CRC imposes an obligation on States to detain a child

only as a measure of last resort and for the shortest appropriate period

of time. Alternatives should therefore always be considered. Where possible,

unaccompanied minors should be released into the care of family members

who already have residence within the asylum country. Otherwise, alternative

care arrangements should be made by the competent child-care authorities

for separated minors to receive adequate accommodation and appropriate

supervision. Residential homes for children or foster care may provide

the necessary facilities to ensure that their proper development, both

physical and mental, is catered for while longer-term solutions are being

considered. All appropriate alternatives to detention should also be considered

in the case of children accompanying their parents.

9. It is UNHCR's

understanding that, in the absence of alternatives, detention should be

as a measure of last resort, and for the shortest possible period of time.

If children are detained at airports, immigration holding-centres or prisons,

they should not, in the Office's view, be held under prison-like conditions.

If all efforts to have them released or placed in other accommodation

have been made and proved impossible, special arrangements should be made

for living quarters which are suitable for children and their families.

10. The Office understands

that a number of States do not detain children (or do so only exceptionally).

For example, Canada, Sweden, Finland, Ireland, Norway, Denmark, and Belgium

have adopted regulations, which take into account the age and the vulnerability

of the child asylum-seeker. In Canada, although the Immigration Act permits

the detention of minors based on exceptional grounds, a 1998 Operations

Memorandum issued by the Department of Immigration also states that decisions

to detain minors should be governed by Article 3 of the Convention on

the Rights of the Child, and directs officials to make every effort to

avoid detaining minors. Furthermore, the new Canadian Immigration and

Refugee Protection Act specifies that detention of minors should occur

only "as last resort". In Belgium, following a positive decision

at the admissibility level, separated minors are admitted to the territory

and usually accommodated in a specialised section of an open reception

centre until a decision is taken on their asylum application or, in absence

of a decision, until adulthood. If the children are accompanied by parents

or a guardian, accommodation will be provided in an "open centre".

In Sweden, where child asylum-seekers are only exceptionally detained,

a foreign child under the age of 18 may not be kept in detention for longer

than 72 hours, which can be extended in exceptional cases for a further

72 hours. In other countries where authorities believe that some form

of control or supervision is required, substitutes for detention have

been implemented. Among the various categories of alternative measures,

the supervised release of children to local social services is an option

that the U.K., for example, has implemented.

11. It is the Office's

understanding that children who are illegally in Australia, whether separated

or otherwise, are in general detained. There is no existing legislation

that automatically allows for the release of minors to the care of family

members who already have residency within Australia. There is no existing

mechanism that automatically allows access to alternative care arrangements.

The alternative detention arrangement in Woomera is currently on a trial

basis, and for a limited number of persons. In UNHCR's view, the barbed

wire fences surrounding the detention centres, strict security arrangements,

and curtailment of freedom of movement are akin to prison-like conditions.

12. It is the Office's

understanding that, according to international human rights standards,

during detention, children should have the right to an education, which

optimally takes place outside the detention premises in order to facilitate

the continuance of their education upon release. In practice, by contrast,

Australia provides educational services in detention and only allows a

minimal number of children to study outside the detention premises.

13. In UNHCR's view,

children should benefit from the same minimum procedural guarantees as

adults (listed above). These procedural guarantees are not presently available

to them.

14. Likewise, in

UNHCR's view [5] a legal guardian or adviser should be

appointed for minors. In Australia, it is the understanding of the Office

that unattached minors (without parents or a close adult relative over

21 years of age in Australia who can provide care) normally become wards

of the Minister, who delegates his powers under the Immigration (Guardianship

of Children) Act to senior officials of state government welfare departments.

In such cases, a conflict of interest may, however, arise if a minor challenges

a decision made on their behalf by the Minister, such as when a decision

is not for their best interest as required by Article 3 of the Convention

on the Rights of the Child, or to challenge the necessity of deprivation

of liberty.

III. Recommendations concerning

children asylum-seekers in Australia from UNHCR's perspective:

15. Children who

are seeking asylum should, in principle, not be detained, and they should

never be held in prison-like conditions. This is particularly important

in the case of separated children.

16. In accordance

with international standards, alternatives to detention should be considered.

These may be release on bail, reporting requirements, or open centres.

Such options provide a degree of control over the whereabouts of asylum-seekers

while allowing basic freedom of movement.

17. A child who has

adult relatives living in Australia should normally be allowed to reside

with them, pending determination of the asylum application. If this is

not possible, alternative care arrangements should be made to ensure that

the child receives adequate accommodation and appropriate supervision

in an atmosphere of "care" rather than "detention."

18. Consideration

should be given to provide an avenue for asylum-seekers to seek a judicial

or administrative review of the decision of their detention, or a mechanism

which provides for regular periodic reviews of the necessity for the continuance

of their detention.

19. Educational services

should be extended to all children to study outside the detention premises.

20. There is a need

to address the issue of a possible conflict of interest in cases of unattached

minors who are wards of the Minister for Immigration and Multicultural

and Indigenous Affairs, who may challenge decisions made on their behalf

by the Minister. UNHCR therefore recommends the appointment of a guardian

or advisor, trained in child welfare matters, for separated minors seeking

asylum. Given that most children are neither legally independent nor of

sufficient maturity to fully represent their own interests in asylum proceedings,

UNHCR considers it important that a qualified adult be tasked with the

responsibility to ensure that the child's best interests are met. The

guardian should have the necessary training and expertise in the field

of child-caring so as to ensure that the interests of the child are safeguarded,

and that the child's legal, social, medical and psychological needs are

appropriately covered during the refugee status determination procedure

and until a durable solution for the child has been identified and implemented.

UNHCR also considers meaningful access to legal counsel to be critical

in safeguarding the rights of children asylum-seekers. [6]


1.

The Executive Committee, of which Australia is a member, supervises the

UNHCR programme.

2.

See, for example, Executive Committee Conclusions Nos. 46 para f) (1987),

47 para e) (1987), 50 para I) (1989), 65 para c) and j) (1991), 71 para

f) (1993), 85 para cc) and ee) (1998), and 89 (2000).

3.

See also UNHCR's Guidelines on Policies and Procedures in dealing with

Unaccompanied Children Seeking Asylum, Geneva, February 1997; and

UNHCR's Guidelines on Refugee Children (hereafter UNHCR Guidelines

on Refugee Children).

4.

See Articles 2, 3, 9, 22 and 37 of the CRC.

5.

See UNHCR's Guidelines on Policies and Procedures in dealing with Unaccompanied

Children Seeking Asylum, Geneva, February 1997; and UNHCR's Guidelines

on Refugee Children.

6.

As stated in UNHCR's Guidelines on Children Seeking Asylum, "[u]pon

arrival, a child should be provided with a legal representative."

Last

Updated 9 January 2003.