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Commission Website: National Inquiry into Children in Immigration Detention

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Submission to the National

Inquiry into Children in Immigration Detention from

the Refugee

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

in Australia.

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.

The right

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.

Unauthorised arrivals

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.

The aforementioned

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.

Deportations

of 'screen outs' and children

Following

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

them.

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.

Recommendations:

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.

Last

Updated 9 January 2003.