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Submission to the National
Inquiry into Children in Immigration Detention from
Advice Casework Service (RACS)
Refugee Advice Casework
Service (RACS) is a Community Legal Service which provides free legal
advice and representation to asylum seekers in the community and detention
RACS has represented
and provided advice to asylum seekers in Villawood Immigration Detention
Centre (VIDC), Woomera, Port Hedland and Curtin Immigration Reception
and Processing Centres (IRPC). RACS has represented child asylum seekers
as part of families and also those who do not have members of their family
unit in Australia.
RACS receives funding
from the Department of Immigration Multicultural and Indigenous Affairs
to provide application assistance through the Immigration Advice and Application
Assistance Scheme (IAAAS) to protection visa applicants in Villawood and
the remote detention centres and to limited community applicants.
RACS prepares this
limited submission to address two specific issues of concern regarding
the current practices of DIMIA within Australia's detention regime which
impact differentially on children. We advise that the issues contained
in this submission are relevant to points three and five of the terms
of reference. The fist issue is the practical right to apply for asylum
in Australia and the second is the removal of people from Australia. RACS
opposes mandatory detention moreover the detention of children.
to apply for asylum in Australia: 'screening in' and 'screening out' of
people in detention.
People in Australian
immigration detention centers are comprised of two main groups of being
'unauthorised arrivals' and people who have been in the Australia community.
The term unauthorised arrivals refers to people who arrive in Australia
without a valid passport or visa, are not immigration cleared and go directly
to detention. In addition to unauthorised arrivals people are put in immigration
detention if they are in the Australian community but do not have a valid
visa and come to the attention of DIMIA.
are interviewed within a few hours if by plane or a few days or weeks
if by boat by officers of the Department of Immigration and Multicultural
and Indigenous Affairs (DIMIA). The purpose of the interview is to assess
among other things whether the person appears, on the face, to require
protection in Australia. The DIMIA officer assesses the information provided
by the unauthorised arrival with a view to identifying if the person claims
persecution for a reason stipulated in the Convention.
The entry interview
is conducted without the interviewee receiving information about Australia's
protection obligations, or legal advice or representation. We note that
DIMIA refuses to provide copies of the tape or transcripts of these interviews
through the Freedom of Information process. (In the past DIMIA has provided
the record of such interviews through the Freedom of Information process
and therefore some analysis of these interviews is possible.) Problems
identified with the interview process include the duration of the interview,
quality of interpreter, emotional, physical and psychological condition
of the interviewee which all affect his or her ability to answer questions
accurately. There are also concerns about the accountability of the decision-maker
in 'screening in' or 'screening out' the interviewee.
process is no different for children. If a child is part of a family unit
it is uncertain whether a child will even be interviewed by DIMIA. In
our experience DIMIA does not interview children who are part of a family
unit to determine whether they have claims independent of their family.
In this regard the fate of the child resides with the screening of their
family. We have not been able to obtain any DIMIA policy in this regard.
However for children
who are not part of a family unit in which someone is claiming asylum
or are unaccompanied the outcome of the child's 'screening' is determined
by their own statements. These children will need to enunciate reasons
for their fear of return to their country of origin for one of the five
Convention reasons. We note that it does not appear sufficient to be of
a class of people who may be persecuted if those reasons are not expressed.
The interview is not conducted in the presence of a support person or
representative of the child, nor is any information provided to the child
about what are their rights in seeking asylum or the definition of a refugee.
The children do not receive legal representation prior to this interview
and are not informed of their right to obtain advice.
Often the children
being interviewed originate from countries in which there has been severe
political or civil unrest and acts of oppression have been committed by
people in authority. Trauma experienced by children related to persons
in authority as well as the general trauma associated with treatment in
their countries of origin, leaving their country and traveling abroad
and, detention in Australia increase the trauma and distress experienced
by the child. We are concerned that in these circumstances children may
be not able to express their fears or situation completely. We also submit
that a child's subjective fear may be expressed in a manner that does
not reflect a Convention basis for a refugee claim but nevertheless this
Convention nexus may exist.
The Migration Act
1958 (s256) provides that access to legal advice is possible if a request
by the person detained is made. In practice requests for access to legal
advice are difficult unless a person has been screen in for the purposes
of making a protection visa application and are then referred to a migration
agent through the IAAAS program. Apart from s 256 the act is silent on
the rights to access legal advice and no provisions are made for children
who have not been determined by DIMIA to be eligible to apply for a protection
visa to receive legal advice. We also note that the legal advice provided
relates only to migration issues.
of 'screen outs' and children
the entry interview the unauthorised arrival will either become an 'asylum
seeker' or a 'screen out'. The 'asylum seeker' will be referred to a migration
agent and receive migration assistance to lodge a protection visa. On
the other hand a 'screen out' is viewed as someone with no legal basis
to remain in Australia and therefore must be detained and deported at
the earliest opportunity. As detailed in Peter Mares book 'Borderline',
in 1998- 1999, 1457 airport arrivals without valid documentation were
deemed not to invoke protection obligations and were removed from Australia
within 72 hours. The situation in remote detention centers is less clear
because of lack of information.
In the remote detention
centers the 'screen out' is to be held in a different section of the centre
to asylum seekers who are allowed access to legal assistance and allowed
to make a protection visa applications. Those 'screened out' do not receive
legal assistance and in theory do not have contact with people who have
had access to legal assistance not outside the detention centre. These
people are awaiting removal. Due to this lack of contact it is very difficult
to identify when people have been screened out and what has happened to
However, in Woomera
IRPC there have been young people who have made claims that they are from
a particular persecuted ethnic group in Afghanistan, 13-14 years old without
relatives in Australia, and have been 'screened out' or not received legal
assistance for at least a four to five month period. There have also been
people in Villawood IDC claiming to be aged 14 or 15 who after being interviewed
by DIMIA have been taken to the embassy of their country of origin to
obtain travel documents to return home.
During these processes
these people had received no legal advice nor was any other person apart
from DIMIA employees or interpreters present at various interviews with
DIMIA. In considering the procedures of DIMIA to attempt to deport persons
claiming to be children we are concerned that the child involved may not
have legal capacity to consent to DIMIA requests. At the very least we
submit that such consent is not informed when the child is not provided
with information regarding their rights in Australia. We also question
the ability of a DIMIA officer, who is charged with the duty of arranging
removal from Australia and who is also not permitted to explain various
options and legal rights to a person, to obtain consent from a child as
to whether they agree to be deported.
The Migration Act
1958 should be amended to require the provision of legal services for
any unlawful non citizen who claims to be, or is suspected of being, or
has documents to indicate they are under eighteen years old on arrival
in Australia or when they come to the attention of DIMIA or related government
bodies or corporations assisting DIMIA in immigration matters.
Written policy guidelines
be developed within DIMIA regarding the appropriate training, notification
and interviewing procedures to be followed by DIMIA caseofficers.
Updated 9 January 2003.