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Submission to the National

Inquiry into Children in Immigration Detention from

the Equal Opportunity Commission

of Victoria


Overview

Overview

of legal status and entitlements of child refugees with temporary protection

visas (TPV)

The

duty of non-discrimination under the Convention on the Rights of the

Child (CROC)

Children's

language and culture rights

Children's

language rights

Right

to special consideration based on children's needs

Right

to education

The

right to a safe educational environment

Right

to higher education

Right

to employment

Discrimination

by employers

Summary

Right

to material and other assistance

Conclusion


Overview

The Equal Opportunity

Commission of Victoria (the Commission) commends the enquiry by the Human

Rights and Equal Opportunity Commission into the circumstances of children

in immigration detention and the longer-term effects of detention on children

who have entered the Australian community. This submission considers the

post-detention experience and treatment of children and young adults released

into the community as recognised refugees, with particular reference to,

Ø the status

and rights of children who have entered the community following a period

of immigration detention to maintain links with a previous culture and

language; and to participate in the areas essential to children's development

such as education and employment;

Ø whether

the post-detention treatment of children complies with the duty of non-discrimination

under the Convention on the Rights of the Child (CROC) and reflected in

Australian human rights legislation.

In preparation for

this submission, the Commission consulted with a range of people involved

in the care and support of children and young adults who have entered

the Victorian community following a period of immigration detention, including

parents, a teacher, and community and volunteer workers. The Commission

also consults on an on-going basis with communities in which there is

a strong representation of refugees, notably, Arabic-speaking communities

[1] in Victoria.

Overview

of legal status and entitlements of child refugees with temporary protection

visas (TPV)

Children entering

the Australian community as a result of their (or their parents') application

for refugee status through the on-shore humanitarian program are entitled

to similar benefits available to adult TPV holders, subject to the following,

  • unaccompanied

    children released into the community remain in the care of the Minister

    for Immigration, Multicultural and Indigenous Affairs who is their legal

    guardian;

  • unaccompanied

    children may be entitled to state government-sponsored programs such

    as the Refugee Minor Program (provided by the Community Care Division

    of the Victorian Department of Human Services) [2]

    and other programs established for the protection of this most vulnerable

    group of children.

Subject to these

exceptions, children in the community issued with a TPV are subject to

the same restrictions imposed on adult TPV holders, including ineligibility

for family reunion rights; intensive English classes; Higher Education

Contribution Scheme (HECS); and the refugee settlement programs provided

to children holding permanent protection visas (PPV).

It is noted that

subsequent to a period of immigration detention, child refugees who are

identified at being at risk in the community may be eligible for services

in addition to the limited services provided by the Commonwealth to holders

of a TPV. These services are predominantly provided by local and state

government agencies, community and volunteer organisations and members

of the children's ethnic communities. It is also noted that some of these

services receive partial Commonwealth financial assistance. This submission

does not seek to address the adequacy or otherwise of these services or

the arrangements relating to their funding, but instead focuses on the

services that are formally provided to child refugees in the community

through Australia's humanitarian program and in particular those services

provided to children who become refugees through the off-shore humanitarian

program.

The duty

of non-discrimination under the Convention on the Rights of the Child

(CROC)

Freedom from discrimination

is an unequivocal right protected under the CROC. This right is given

expression in Article 2:

"1. States

parties shall respect and ensure the rights set forth in the present

Convention to each child within their jurisdiction without discrimination

of any kind, irrespective of the child's or his or her parent's or legal

guardian's race, colour, sex, language, religion, political or other

opinion, national, ethnic or social origin, property, disability or

other status.

2. States Parties

shall take all appropriate measures to ensure that the child is protected

against all forms of discrimination or punishment on the basis of the

status, activities, expressed opinions, or beliefs of the child's parents,

legal guardians, or family members."

This right is also

protected under the Convention on the Status of Refugees (Article 3) and

the International Covenant on Civil and Political Rights (ICCPR, Article

2.1). Insofar as this right is applicable to children, the right to freedom

from discrimination should be distinguished from 'second-tier' rights,

such as the right to state-sponsored childcare and education that are

contingent on states' progressive capacity to provide these services.

That is, states who have agreed to ratify these instruments may not depart

from their obligation to refrain from discrimination against children

based on issues related to the state's rate of economic development or

other internal or administrative matters.

The Commission has

argued in other forums that the right to freedom from discrimination is

one that should be advanced concomitantly with other rights; that it is

not a right that can be suspended in the purported exercise of other rights

.[3]

The equal enjoyment

by children of the rights encapsulated in the CROC, in the Commission's

submission, requires states to acknowledge the diverse needs of children

and to respond to specific instances of disadvantage by providing increased

assistance and support to children as is appropriate to their identified

needs. This approach accords with the widely recognised principle of substantive

equality stipulated by Tanaka J of the International Court of Justice

in the South West Africa Case (Second Phase) [1966] ICJ Rep 6 at

304-05:

"The principle

of equality before the law does not mean the absolute equality, namely

the equal treatment of men without regard to individual, concrete circumstances,

but it means the relative equality, namely the principle to treat equally

whare are equal and unequally what are unequal…To treat unequal

matters differently according to their inequality is not only permitted

but required."

The provision of

substantive equality to marginalised and disadvantaged children is also

inherent in the notion of the best interests of the child, a principle

that underpins the CROC (Article 3.1) and much domestic Australian law.

Children's

language and culture rights

Children displaced

from their country of birth, or born in a country other than that of their

parents', receive particular recognition in the CROC. Significantly, the

CROC recognises the right of children displaced from their country of

birth, and members of minority communities in another state, to maintain

culture and language appropriate to the child's background and needs.

To this effect, Article 29(1) of the CROC states,

"State parties

agree that the education of the child shall be directed to…(c)

The development of respect for the child's parents, his or her own cultural

identity, language and values, for the national values of the country

in which the child is living, the country from which he of she may originate,

and for civilizations different from his or her own".

Children entering

the community following (an often long) period of detention and, before

that, transit through other countries of asylum, are under Article 29(1)

entitled to assistance to gain knowledge of and familiarity with Australian

society and to re-establish links with the culture, language and traditions

of the community from which children have been forcibly displaced. This

right is particularly important for unaccompanied children who may have

had little or no contact with members of their immediate family and community

throughout the duration of their asylum. Children who are denied the appropriate

assistance after their release into the Australian community may have

exacerbated feelings of isolation and marginalisation, which has consequences

for the child's ability to establish lasting relationships in the community

with peers from the child's ethnic community and with the broader community.

These values are concomitant with the goals identified by those who specialise

in the treatment of children and adults who have endured situations of

conflict, torture, and trauma. These goals have particular relevance to

children. They are,

  • to restore safety

    and enhance control and reduce the disabling effects of fear and anxiety;

  • to restore attachment

    and connections to other human beings who can offer emotional support

    and care;

  • to restore meaning

    and purpose to life; and

  • to restore dignity

    and value which includes reducing excessive shame and guilt .[4]

Whilst children who

enter the community through the on-shore humanitarian program are entitled

to counselling to overcome the worse effects of their asylum experience,

it is submitted that children within this group, through their limited

or complete lack of access to particular services, are denied an appropriate

environment and assistance to familiarise themselves with the mainstream

Australian community and to re-establish links with their original culture

and language. This in turn undermines the ability of children to achieve

the more challenging recovery goals mentioned above.

It is widely acknowledged

that children recovering from upheaval and traumatic events can benefit

from stability, in home, in relationships and routine [5].

In the Commission's submission, children released from detention and settled

in the Australian community are essentially denied a stable environment

conducive to recovery and integration into the community. In particular,

this group is denied the range of settlement support services provided

by the Commonwealth to refugees entering the community through the off-shore

humanitarian program such as short-term housing, provision of basic needs

such as furniture, clothing and food, and assistance accessing benefits

and programs such as intensive English instruction (each of these is discussed

in more detail below). These services are not provided to children recently

introduced to the Australian community except through the charity of state

government agencies, community and church organisations and volunteers

who at any one time may have insufficient resources to comprehensively

provide for the needs of child refugees, and, if accompanied, their families.

In this environment, child refugees and their families are treated as

emergency clients and a prioritised accordingly with other vulnerable

members of the community in need of assistance. The ability of these organisations

to organise and coordinate efforts to assist recent refugee arrivals is

frustrated by the short notice provided to them by the Commonwealth before

their release from detention [6]. Children not provided

with a stable environment upon release in the community are at greater

risk of homelessness, contact with the criminal justice system and psychological

problems [7].

Children's

language rights

Community workers

with children from refugee backgrounds have reported to the Commission

that children with limited English are likely to experience greater difficulty

establishing links in the community, adapting to social customs and learning

and finding employment than their peers. In turn this makes them vulnerable

to far greater levels of racism and intolerance. It is also observed that

children's proficiency in English is largely dependent on the individual

circumstances of the child in their country of origin and the events and

degree of upheaval since displacement from their country of origin. Accordingly,

children entering the Australian community through the humanitarian program

have vastly different language tuition needs and this is recognised through

the provision of English classes, including intensive language instruction,

to children who enter the community through the offshore humanitarian

program. This recognition can be contrasted to the position of child TPV

holders who are denied Commonwealth funded English tuition, irrespective

of the language needs of this group. Effectively, then, children reaching

Australia through the off-shore program and with relatively advanced English

proficiency may receive up to 510 hours of Commonwealth funded English

tuition whilst those arriving through the on-shore program and who may

have relatively limited English skills receive little or no language tuition

except in cases where this is provided by community organisations or volunteers.

Under Article 29

of the CROC children have a distinguishable right to maintain their connections

with traditional culture and language. This a significant right not only

for children re-establishing links with minority communities in Australia

but also for children who through enforced separation have had little

of no contact with members of their own culture for extended periods.

The right of child TPV holders to maintain their previous language and

cultural traditions does not appear to be protected by the Commonwealth

in any formal way. This only appears to occur through the ad hoc

services provided by community services and volunteers. For example, provision

of ethnic language tuition is usually carried out by volunteers during

after-school programs. A teacher of Arabic informed the Commission that

the comparative inexperience of teachers of Arabic in his experience had

reduced students' enthusiasm to maintain their learning of Arabic.

Right to

special consideration based on children's needs

The CROC recognises

that children living in exceptionally difficult circumstances require

special consideration in order for them to be able to enjoy the range

of other rights available to them [8] . This principle

is particularly applicable to children whose various experiences result

in a wide range of impairments that may become apparent during or subsequent

to a period of immigration detention in Australia . [9]

Broadly speaking,

the special needs of children from refugee backgrounds entering the Australian

community can be characterised as follows:

Diagram 1: Relative

support and other needs of children entering the community through Australia's

humanitarian program

 

It is acknowledged

that children exhibiting more serious symptoms of psychological harm as

a result of their asylum experiences can access specialised assistance,

such as torture and trauma counselling (as is required under Article 39

of the CROC). In the Commission's submission however, and according to

the principle of non-discrimination, all children who enter the community

following upheaval and a period of enforced detention may be at continuing

risk of psychological or developmental impairment and are entitled to

receive appropriate and targeted assistance beyond what is currently provided

to child TPV holders. This assistance is especially crucial during the

initial days and weeks of children's introduction to the community, when

the burden of securing basic living needs such as accommodation and employment

for the child's parents may take priority over the child's less urgent

but equally important needs such as psychological counselling. This early

period following release from detention can be seen as a window of opportunity

for healing, which if not taken will lead to further damage being done

to a child's development, self-esteem and well being.

The Commission submits

that there is an obligation on the Commonwealth to provide immediate assessment

of the needs of children who have endured upheaval and enforced detention

and provision of these needs, given that,

  • children provided

    with temporary residency status live in state of uncertainty concerning

    their future eligibility to remain in Australia. This can create stress

    and anxiety for children in the long-term ;[10]

  • it is not appropriate

    to expect schools to have the appropriate expertise to recognise and

    respond to childhood development problems associated with the extraordinary

    events endured by child refugees;

  • parents of children

    exhibiting psychological symptoms may not appreciate that professional

    assistance beyond that offered by schools and general practitioners

    may be required to ensure the child's long-term development; or parents

    may not themselves be comfortable with referring their children to counsellors;

  • following settlement

    in the community, children (and, if accompanied, their parents) can

    experience stress as a result of their sudden immersion in another culture.

    This can lead to more serious problems for the child's development,

    requiring counselling to assist them through this transition ;[11]

  • children who appear

    to adapt in the initial stages to life in the Australian community can

    nevertheless accumulate the stress and despair of their parents over

    time as the right to remain in Australia and the possibility of forced

    removal from Australia continues.

The Commission submits

that Australia's obligation of non-discrimination under the CROC requires

the early identification of the special needs of children who, due to

experiences associated with seeking asylum, require additional and targeted

assistance and support. This should be ensured through a structured early

assessment and intervention service, independently administered, and made

available to children immediately upon release from detention. This service

should include referral where appropriate to other services that can assist

children's psychological and social integration into the community.

Special needs

of unaccompanied children

Unaccompanied child

asylum seekers are a particularly vulnerable group following release into

the community, and this is recognised to some extent though the provision

of specialised services to this group, such at the Refugee Minor Program,

administered by the Victorian Department of Human Services.

However the treatment

of unaccompanied minors, and in particular, their ineligibility for family

reunion rights appears to undermine the long-term health and welfare of

members of this group. The lack of family reunion rights for this group

also appears to breach the rights accorded to children separated from

family and community as a result of persecution, upheaval and displacement

from home and family. This right is expressly recognised in Articles 9

and 10(2) of the CROC. Furthermore, ineligibility for family reunion rights

appears to breach the obligation on states to ensure that parents can

exercise their responsibility for the care and upbringing of their children

(Article 18).

Children with

disabilities

The obligation of

provision of assistance to children with special needs is extended in

Article 23 of the CROC, which provides,

'1. States Parties

recognize that a mentally or physically disabled child should enjoy

a full and decent life, in conditions which ensure dignity, promote

self-reliance and facilitate the child's active participation in the

community.'

As mentioned in the

previous section, children entering the community following a period of

detention are particularly vulnerable to a range of psychological impairments,

some subtle, others more severe; this may be in addition to physical impairments

inflicted on children through exposure to conflict, torture or other forms

of abuse perpetuated in the child's country of origin; or through self-harm

whilst in detention.

Child TPV holders,

like adults, are entitled to full Medicare services and to torture and

trauma counselling services. Unlike those entering the community through

the offshore program, however, TPV holders do not receive formal assistance

(except through community and volunteer services) to lodge their Medicare

application, and incorrect lodgement of a Medicare application can delay

the provision of a Medicare card to the recipient. Furthermore, the task

of dealing with Australian officials can itself be a daunting - if not

terrifying - experience for children who either as a result of their prolonged

detention in Australia or persecution in their country of origin have

developed a profound fear and distrust of bureaucracy . [12]

These factors, it is submitted, frustrate the ability of parents, guardians

and others responsible for the care of children with disabilities to seek

appropriate assistance and to establish links with the necessary services

in the initial stages of settlement into the community.

Right to

education

It is widely recognised

that education plays a crucial role in the long-term development of children

and assists their integration into the community. The right of children

to enjoy a comprehensive education is clearly recognised in the CROC;

moreover it is a right extended to all children irrespective of whether

a child is a recognised citizen of the country in which he or she is detained

or has been released from any form of detention (CROC, Article 28).

Children who enter

the Australian community through the on-shore humanitarian program are

reported in many cases to have endured severe disruption to their education.

This disruption can occur in a number of ways:

  • in the child's

    country of birth, if, due to sex, race, ethnicity or religion or other

    reason, a child is refused enrolment in a state-run school; or where,

    for example, children are subject to compulsory military service ;[13]

  • as a result of

    a child's transit through other countries while seeking asylum, in refugee

    camps or in detention facilities, where it is unlikely that structured

    education is provided; and/or

  • in immigration

    detention whilst in Australian, where education provided to child asylum

    seekers is not integrated into the mainstream education system.

It is also understood

that children's ability to fully participate in and benefit from education

can be diminished by previous exposure to traumatic events [14].

Children in this group may require additional and targeted assistance

to facilitate integration into the mainstream education system. The principle

of special consideration expressed in the CROC requires that children

with additional learning requirements should receive appropriate and timely

special assistance. This assistance should address the range of needs

of child TPV holders including factors outside the school environment

that may interfere with a child's ability to fully engage in their education,

such as lack of stable accommodation, drug abuse and criminal justice

issues.[15]

The right

to a safe educational environment

The right of children

to participate in education entails that education is provided in a safe

environment that is free from harassment, bullying and other harmful behaviours

of which vulnerable children are at greater risk. Child TPV holders and

other child refugees are a highly visible and hence vulnerable group in

the community. There is evidence that children in this group have been

subject to marginalisation and vilification within and outside the school

community [16]. Other incidents reported to the Commission

include,

  • the parent of

    a 13 year old child recounted that when asked by his teacher about his

    expectations later in life, the child responded that he had no future

    expectations and that this was due to his being a temporary resident;

  • the practice of

    children calling other children who have arrived in Australia through

    informal means 'FOB' ('fresh off the boat');

  • a parent of a

    child who is a TPV holder stated that his child is inclined to conceal

    his TPV status from his peers at school.

A further significant

impediment to the provision of a safe and stable learning environment

to children from refugee backgrounds is the non-availability, under the

Commonwealth humanitarian program, of intensive language classes to child

TPV holders. In the Commission's submission, the inability of children

in this group to set goals (academic or otherwise) beyond the three years'

duration of their residency status appears to underlie the difficulties

faced by children in this group, their parents and educators.

Right to

higher education

Article 28 of the

CROC provides,

"1. State

parties recognise the right of the child to education, and with a view

to achieving this right progressively and on the basis of equal opportunity,

they shall, in particular

…

(c) Make higher education accessible to all on the basis of capacity

by every appropriate means".

Whilst child TPV

holders are entitled to access primary and secondary education on the

same terms as other children, including PPV holders, this parity discontinues

at the tertiary education stage. Children and young adults who are TPV

holders and wish to participate in higher education are required to pay

full up-front fees and are not entitled to utilise the higher education

contribution scheme (HECS).

Whilst these conditions

are equivalent to those applied to overseas fee-paying students, their

application to children and young adults who have been granted refugee

status following their arrival in Australia has additional implications,

in particular,

  • children and their

    families who arrive in Australian through the humanitarian program have

    frequently spent a large part - if not all - of their life assets seeking

    and obtaining passage to a country of asylum [17].

    Refugees in this group are not likely, immediately or even in the long-term,

    to be able to afford the cost of entry to higher education in Australia;

  • the option of

    studying part-time is generally not available to children and young

    adults with TPVs as most part-time courses would extend beyond the maximum

    30 months of residency guaranteed by their visa;

The ability of child

and young TPV holders to access higher education is further impacted by

the denial to this group of intensive English classes.

In addition, the

Commission has become aware of many instances in which educational scholarships

are only offered to permanent Australian citizens and residents, thereby

excluding those with temporary residency status. This is the case under

many Commonwealth-funded training and apprenticeship schemes. Additionally,

many state education institutions also limit scholarships and other programs

to those with permanent residency status.

The harm to children

and young adults denied access to higher education can be significant,

particularly where children are encouraged by their families to pursue

a higher education as a way to gain acceptance in the country in which

they have been granted refugee status.

In the Commission's

submission, the conditions for entry into higher education in Australia

effectively exclude, and so indirectly discriminates against, those who

experience financial hardship as a result of their passage to Australia

or who, due their refugee status, are denied access to scholarships only

offered to permanent Australian residents. It is the Commission's view

that this exclusion is a breach of Article 28(1)(c) of the CROC.

In summary, the conditions

and restrictions of a child or young adult's temporary resident status

under the TPV arrangements constitute a significant barrier to this group

to participate in education to the highest level, a right enjoyed by permanent

Australian residents. As a consequence, children and young TPV holders

are effectively prevented from gaining the skills and qualifications necessary

for their long-term integration into the Australian workforce and their

self-sufficiency.

Right to

employment

The right to participate

in the workforce is formally extended to all refugees entering the community

irrespective of visa status. However, there are significant qualifications

to this right, which can be detrimental to children and young adults seeking

to enter the workforce for the first time. The most significant of these

- the ineligibility of child and young TPV holders for Commonwealth employment

services, such as Newstart and Job Network - can be seen to impact on

young people unfamiliar with the Australian workforce to a greater degree

than their peers. Child and young adult TPV holders denied assistance

to find suitable employment in Australia may experience particular difficulty

in view of the following:

  • child and young

    adults from refugee backgrounds often come from societies where work

    is a highly valued institution and the pressure to obtain employment

    considerable;

  • children and young

    adults recognised as refugees in Australia often attempt to raise money

    to send to family members in their country of origin or in transit countries

    [18]. This is in addition to the expenses of paying

    rent and purchasing basic commodities;

  • as previously

    noted, child TPV holders generally cannot afford the cost of higher

    education, due to the requirement to pay full up-front fees and employment

    is the only remaining option to this group; and

  • it is documented

    that amongst the refugee community, there is stigma associated with

    receiving government support, and in particular, the special benefit.

    [19]

Discrimination

by employers

The Commission is

aware of anecdotal information that clearly indicates that refugees with

temporary visa status face disproportionate discrimination by employers

when applying for employment. Commonwealth job advertisements also frequently

state that applicants must be permanent Australian residents. Child and

young TPV holders may face the additional barrier of not being able to

provide Australian-based referees; or of not having secure and stable

accommodation, a frequent requirement of employers. As previously noted,

many child and young TPV holders have limited English and are not eligible

for intensive language assistance, which is a considerable barrier to

finding employment in a competitive and highly skilled job market.

The Commission has

considered the situation of individuals who may experience discrimination

in the employment market because of their TPV status, and is of the view

that it is often unlikely that present anti-discrimination laws would

provide a means of redress. Accordingly, TPV holders are not only at risk

of greater levels of discrimination, they are potentially denied the right

to complain about such treatment. This is not to suggest that the solution

necessarily rests with altering the definition of discrimination, rather

the cause (and thus the solution) appears to lie in the differential terms

attached to TPVs that can make discrimination against TPV holders reasonable

in certain circumstances.

An additional barrier

- and significant disincentive - for children and young adults with TPV

status seeking employment is the withdrawal of the special benefit when

a person accumulates 5,000 dollars or more in assets (this is not a restriction

that applies to other forms of benefits, such as Newstart). Concurrently,

any income earned by a TPV holder is offset through the payment of the

special benefit so that for every dollar earned, a dollar comes off the

recipient's special benefit. Loss of special benefit also entails loss

of other benefits, such as a Health Care card. A further consequence is

that children and young adult TPV holders who manage to find employment

can find themselves earning less money than they would earn under Special

Benefit. These factors have the potential to entrench chronic disadvantage

amongst members of this group, by ensuring that those on the level of

subsistence are penalised if they begin to acquire stability through employment.

It is also noted that the costs of finding and maintaining employment,

such as transport, uniform, and tools is likely to be beyond the reach

of a person with 5,000 dollars in assets.

Summary

Children and young

adults entering the job market for the first time are clearly placed at

a disadvantage compared to other job seekers, including those holding

permanent visas. Furthermore, child or young adult TPV holders who are

able to find employment risk losing their entitlement to other Commonwealth

assistance, such as Special Benefit and Health Care Card, which can have

serious implications for the person's health and welfare. The Commission

has been informed that this situation pushes child and young adults TPV

holders into positions of hardship; to the point, for example, where members

of this group have resorted to borrowing off moneylenders.

The overall effects

of the restrictions placed on children and young adults seeking employment,

it is submitted also appears to breach Article 17 of the Convention on

the Status of Refugees, which provides,

"Article

17. Wage-earning employment

1. The Contracting States shall accord to refugees lawfully staying

in their territory the most favourable treatment accorded to nationals

of a foreign country in the same circumstances, as regards the right

to engage in wage-earning employment."

In summary, the TPV

regime appears to compel children and young adults to choose between commencing

employment or, if a person can afford to, pursue their education. It is

submitted that this predicament places children and young people in a

position of over-reliance on government, community organisation or volunteer

assistance and affects their self-esteem. This situation is incompatible

with the obligation on states to recognise the right of every child to

a standard of living adequate for the child's physical, mental, spiritual,

moral and social development. [20]

Right to

material and other assistance

Article 27(3) of

the CROC provides,

'States Parties,

in accordance with national conditions and within their means, shall

take appropriate measures to assist parents and others responsible for

the child to implement this right and shall in case of need provide

material assistance and support programmes, particularly with regard

to nutrition, clothing and housing.'

Read in conjunction

with Article 2 of the CROC, children and young adults entering the community

and recognised as refugees are entitled to receive the assistance outlined

in Article 27(3) without distinction of any kind.

The denial to TPV

holders of most important of the support services provided to permanent

protection refugees calls into question the extent to which this right

is upheld in relation to this highly vulnerable and impoverished group.

And whilst it is acknowledged that state-based community service providers

and volunteers play a crucial role in the provision of these needs to

the extent that their resources allow, as signatory to the CROC and the

Convention on the Status of Refugees, the primary obligation for providing

these needs rests with the Commonwealth. There is also a question about

the ability of state-based community services to provide material and

other assistance to child and youth refugees who, following release, move

of their own accord interstate, away from the service providers with whom

they have had initial contact .[21]

Conclusion

It is widely recognised

that children released into the community following a period of immigration

detention constitute the most impoverished and traumatised group of children

in the Australian community. All children in this group, it is submitted,

are at risk of harm as a result of their experiences and this assumption

should influence every aspect of the treatment of children subsequent

to their release into the community. Australia has clearly stated obligations

under the CROC to ameliorate the worse effects of the experiences associated

with asylum seekers and also to assist children integrate into a stable

environment favourable to their recovery. These goals are also fundamental

to the notion of the best interests of children. It is the Commission's

view that the legal regime to which children who enter Australia by informal

means are submitted is fundamentally incompatible with these goals.

The Commission has

observed that children who enter the community following the asylum and

detention processes are at greater risk of exclusion from the services

that are essential to their immediate and long-term welfare. This situation

is exacerbated by discriminatory attitudes in the community that marginalise

and vilify children who have arrived in Australia by informal means. It

is also apparent that children in this group are undermined by the uncertainty

of their temporary residency status and the anxiety and restlessness this

creates.

Accordingly, the

Commission recommends a comprehensive and rigorous re-evaluation of the

arrangements for the care and treatment of children released from immigration

detention with a view of reaffirming their self-esteem, dignity and self-reliance.

This should primarily occur through the reinstatement of services, including

free language instruction and the range of settlement services, essential

to providing children with a stable and safe environment and assisting

their emotional and psychological recovery. Children without links in

the community to family or community should be placed in the care of an

agency specialising in childcare and with knowledge of culturally appropriate

practices, in addition the right of family reunion should be reinstated

for all unaccompanied children. Finally, children in the Australian community

should receive legal recognition and treatment in accordance with their

affirmed refugee status and irrespective of the circumstances that cause

the children to be separated from his or her country or origin, family

and community.

Bibliography:

Sarah Wise, 'Acculturation,

Childcare Selection and Developmental Wellbeing', paper delivered at the

Refugees, Humanitarian Settlers and Informal Arrivals' symposium, 26 April

2001.

Megan Saunders, 'Refugees

who endure the unthinkable', The Australian, 17 December 2001.

'Australian doctors

concerned over detention of children', Lateline, ABC Television, broadcast

19/3/2002.

Multicultural Affairs

Queensland, 'Temporary Protection Visa Holders in Queensland', 2002.

'Refugees who endure

the unthinkable', Encounter program, 29/7/01, Australian 17/12/01.

'Strangers in our

midst', Encounter, Radio National, 29/07/01.

1. As

part of this project, the Commission has appointed a dedicated Arabic-speaking

community educator to work closely with members of Victoria's Arabic-speaking

community.

2. Victorian Multicultural Commission website.

3. For example, the Commission submitted that the right

of single women and lesbians to be free from discrimination should not

be curtailed in the purported exercise of the right of children, under

the CROC, to the care and protection of parents (Cth Senate Legal and

Constitutional enquiry, 21 November 2000, 72.)

4. From teaching materials provided by the Victorian Foundation

for the Survivors of Torture.

5. Sarah Wise, 'Acculturation, Childcare Selection and

Developmental Wellbeing', paper delivered at the Refugees, Humanitarian

Settlers and Informal Arrivals' symposium, 26 April 2001.

6. According to the Victorian Department of Human Services

(DHS), no more than three to four days' notice is provided to State and

community services of refugees being released into the community by the

Department of Immigration, Multicultural and Indigenous Affairs (DIMIA)

(DHS website).

7. Megan Saunders, 'Refugees who endure the unthinkable',

The Australian, 17 December 2001.

8. CROC, Preamble.

9. This issue was discussed in 'Australian doctors concerned

over detention of children', Lateline, ABC Television, broadcast 19/3/2002.

10. 'Australian doctors concerned over detention of children',

ibid.

11. Sarah Wise, ibid.

12. A father who with his child spent several months

in detention told the Commission that the child appeared to be wary of

police officers in the community. The father observed that his child appeared

to associate police officers with staff at the immigration centre at which

they were detained.

13. Amnesty International estimates that more than 300,000

under the age of 18 are fighting in conflicts around the world, Amnesty

International website, 'Child soldiers'.

14. 'Australian doctors concerned over detention of children',

ibid.

15. Part of this service is provided by the Victorian

Foundation for Survivors of Torture (VFST), which operates a school-based

program that, among other things, provides professional development programs

for teaching professionals to enhance the capacity of teachers to support

children and young people from refugee backgrounds.

16. Report by the Australian Arabic Council, 'Racial

vilification against Arabic and Muslim Australians in Light of the September

11th terrorist attacks in the United States', October 2001.

17. Megan Saunders, ibid.

18. 'Strangers in our midst', Encounter, Radio National,

29/07/01.

19. Multicultural Affairs Queensland, 'Temporary Protection

Visa Holders in Queensland', page 23.

20. CROC, Article 27(1).

21. Megan Saunders, ibid.

Last

Updated 10 October 2002.