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Submission to the National

Inquiry into Children in Immigration Detention from

the Organising Committee for

Seminar on Children and Families in Immigration and Detention Centres.

Social Justice and Social

Change Research, University of Western Sydney.


Committee

Members

Ms Brenda Bartlett

Dr Natalie Bolzan

Mr Micheal Darcy

Ms Justine O'Sullivan

Professor Jan Mason.

The assistance of

Dr Leanne Craze of Craze Lateral Solutions, in the preparation of this

submission is acknowledged.

May 2002


Introduction

Aspects

of Human Rights violations experienced by children and young people

in Australian Immigration Detention Centres

Current

Violations of human rights instruments

Recommendations


Introduction

This submission has

been prepared following a public seminar held on 4 March 2002 to discuss

the experiences of children in Immigration Detention Centres in Australia.

The seminar, held at the University of Western Sydney (Macarthur - Bankstown),

was convened by Childhood and Youth Policy Research Unit of the Social

Justice and Social Change Research Centre, University of Western Sydney

in association with Defence for Children International (Australia) and

the Association of Child Welfare Agencies.

The purpose of the

seminar was to inform the research process of community agencies and other

interested groups who were seeking to prepare submissions for the Inquiry.

Approximately fifty people attended the seminar.

Addressing the seminar

were:

  • Three young people

    who spoke of their experiences prior to coming to Australia and in immigration

    detention, from transcripts in English. These were read by Brenda Bartlett,

    Justine O'Sulllivan, lecturers at UWS and Natalie Bolzan, senior lecturer

    at UWS.

  • Fran Gale, social

    worker and lecturer at UWS, who gave details of a recent visit to the

    Immigration Detention Centre at Woomera;

  • Jackie Everett,

    Lawyer and worker at Edmund Rice Centre and Jesuit Refugee Services.

    who told of her discussions with children and young people during visits

    to Immigration Detention Centres; and

  • Chris Sidoti,

    adjunct professor at UWS who outlined relevant international human rights

    instruments and their implications for Australia's care of children

    and young people in Immigration Detention Centres.

The seminar was chaired

by Judy Cashmore, President Defence for Children International (Australia).

This submission provides

an overview of the seminar's proceedings and deliberations and concludes

with a discussion of the vulnerability and special needs of refugee children.

Recommendations are made concerning action that is required of the Australian

Governments.

Observations concerning

the recounted experiences of children and young people in Immigration

Detention Centres

Quotations from transcripts

and discussions with children and young people about their experiences

in Immigration Detention Centres are provided in the following two sections.

Observations on

the voices of unaccompanied minors

Called by number

The young people

told of how throughout their detention they were called by officials by

their numbers and never by name:

'Police' call

us by our number, not our names…

'police' didn't ask us what our names were, just called us by number

….

felt lonely, called by number, felt like a number…

Roll call was done by number

Held by 'police'

The young people

knew and referred to the detention centre officers as 'police':

'Police' ran

the place..

'Police' should be helpful

Police should call us by name

Closed section

cramped and tense

The young people

told of how after they were initially interviewed they were detained in

a closed section for 25 days.

Very cramped…

just like a small room

Main memories of closed section … a lot of pressure

No playing, no space, all close, we couldn't go outside

20 beds in one room, we were all under 18 years of age

bad when it was very hot

nothing to do

Nothing to do

and no education

Young people told

of how there was nothing for them to do and how precious time was lost

when they could have been learning English and learning how to live in

the community.

Someone came

and talked about Australia - may be one hour, 2-3 times a week.

Wanted to study …. Where there was a teacher ….. We wanted

to learn English, have proper classes, learn grammar, wanted a serious

class

When released we couldn't speak English …. But detained for nine

months … at school I don't understand English, I can't do my homework…

Couldn't initiate

interviews with authorities and weren't kept informed

The young people

told of how there was nothing they could do to initiate an interview and

how they were not kept informed about the process, what was happening

and what would happen next.

People were

told they could have a visa but didn't get it for another two or three

months … cause a lot of anger …… process was finished

.. delay in getting visa…. People didn't know what their rights

were

We assumed that those who went in first or were interviewed first would

be released first but it didn't happen like that … didn't understand

time

Didn't get answers

Not able to get answers to questions

Not given option of a lawyer

Could not get an interview … just told to wait

Just told to wait … didn't understand what was wanted of us

Didn't get medical

treatment just punished

Young people told

of how when they or others self-harmed themselves out of frustration and

in some instances because of a pre-existing injury that was hurting causing

distress. After self-harming the young people told of how they were placed

in isolation.

'Police' just

say if you want to kill yourself you can

'police' took me to dark room… called India … kept there for

five days by self … small area just about 3 by 4 metres, camera

there, no chair to sit on, small amount of light … kept asking

me 'why did you hurt yourself'

difficult to get any medical help .. just put in 'India'

Wanting to die

Young people told

of how many just anted to die.

'Police' didn't

like us not to eat ….. people fainted …. Some unconscious

… bad place … better to die that be there

They were scared

of some of the detainees

people very stressed

there, mentally sick…. Fights happened, scary things happening in

restaurant … scared that something will happen

Temporary visa

results in a 'Catch 22' situation

Young people discussed

the unfairness of the practice and rules surrounding temporary visas.

If studying

full-time, special benefit stopped .. it's the law

Without a permanent visa I can't see my family

We are told we should go back home now that things are better ….

But we know things aren't better …. But Australian government is

telling us we should go back

Want a normal life … want to study ,, worry we will be told our

visa has expired

Now that they have left the detention centre

The uncertainty is bothering us, worrying us, can't focus, can't work,

don't have permission

Hard to work if we don't know English … but can't study English

full-time or we lose money

Shouldn't be putting everyone on a temporary visa just as a matter of

routine … individual cases should be assessed as individual cases.

Observations on

the experiences of children in detention

Presenters told of

children's observations about their experience in Immigration Detention

Centres

Unwelcoming

Children told of

how barren the detention centres were:

  • Hot dusty
  • No shade
  • No trees, no

    grass, no flowers

Nothing to do

Children told of

how they was nothing for them to do.

  • No school
  • No play ground

As if in prison

Children could not

understand why they are in prison and why there were 'soldiers' at the

centres. Children also told of being called by their number.

Centres are terrifying

Children have told

of how terrifying the centres are, particularly when:

  • fights and riots

    break out;

  • their parents

    become ill, sad and distressed;

  • they see their

    parents treated disrespectfully and not afforded dignity;

  • their parents

    are punished and put in isolation;

  • they see people

    attempting suicide or hurting themselves; and

  • blood has not

    been washed out of the toilets and shower facilities;

Unaccompanied minors

felt particularly unsafe. Children also reported feeling unsafe in the

toilet and bathroom areas.

Aspects of

Human Rights violations experienced by children and young people in Australian

Immigration Detention Centres

On the basis of the

research process in conducting the seminar we have compiled an analysis

of aspects of human rights violations experienced by children and young

people held in Australian Immigration Detention, particularly those held

in the remote centres.

Incongruent and

unjust policies and practices

The policy and

practice of detaining unaccompanied minors

Unaccompanied minors held in Immigration Detention Centres are rendered

vulnerable in 'at risk' situations. These young people have not offended

but yet there are treated worse than Australian authorities are allowed

to treat juvenile offenders. Juvenile offenders are not detained in adult

facilities.

Incongruent definitions

and assumptions

Terms of 'queue-jumpers', 'self-selecting refugees' and 'economic

refuges' are embedded in current Australian policies and procedures concerning

people seeking asylum and refuge. For many people arriving illegally in

Australia there is no queue for them to jump. Many people have fled their

countries in an effort to save their lives. It is a false assumption to

make that because they have paid to leave their country, they are necessarily

'economic refugees' or 'self-selecting refugees'. Policies underpinned

by these concepts and terms often do not match the experiences and situation

of those who have arrived in Australia illegally.

Policies and practices

that place children and their families in situations of risk

Automatic detention of children and their families in immigration

detention centres, particularly the remotely isolated centres, places

them in situations of risk. The conditions in the remote centres are experienced

by children and their families as dehumanising, inhumane and traumatising

(or more correctly, re-traumatising.

Policies and practices

that set parents and families up to fail

When children are further traumatised by the conditions in immigration

detention centres, children lose trust in their parents' capacity to protect

them and look after them. Parents lose faith in their own capacity to

look after their children and blame themselves for what their children

are experiencing. As time in detention draws on, families lose hope in

their lives and their futures, hence the focus on suicide.

Policies and practices

that do not address the psychological, developmental and social needs

of children and young people

The automatic detention of children and young people seeking asylum

and refuge in Australia results in further traumatisation and suffering.

The children and young people view themselves as being punished. This

view is reinforced by the harshness of the conditions where they are kept

(i.e. in the remote centres) regarding those who supervise them as 'police'.

Children and young people are not receiving the educational, health and

psychological services they require. Neither are their social and age-specific

needs being met. Despite neither the parents nor the children having offended

their opportunities for education recreation and leisure are significantly

less than for adult prisoners. The conditions in which children and young

people seeking refuge and asylum are kept in the remote immigration detention

centres would not be tolerated in any correctional jurisdiction in Australia.

Policies and provisions

that set up families to fail on release

Current policies and practices with families seeking asylum and refuge

in Australia do not assist successful settlement in the community. Those

released into the community leave without:

  • Sufficient information

    about their rights and entitlements;

  • Lack of information

    about the local area into which they are to settle;

  • Being linked into

    support networks and community agencies;

  • Being linked

    into health services that can assist with immediate needs;

  • Having been provided

    with the opportunity of learning English whilst in detention; and

  • Practical assistance

    in the early stages after leaving detention

Temporary visa

policies and procedures that provide families with self-defeating options

Temporary visa policies and procedures result in families being placed

in 'limbo' and undermine the capacity of families to live independently

in the Australian community. Options provided under the policies are self-defeating

eg

  • Lack of English

    and qualification makes employment difficult, but if a person studies

    full-time they cannot receive special benefit;

  • Unaccompanied

    young people or members of families cannot leave the country to see

    other family members who have been left behind either in their country

    of origin or in another country;

Australian policy

and procedures concerning people seeking refuge and asylum do not provide

mechanisms for their voices to be heard

In contrast with prisons where there are official visitors and a

raft of complaints mechanisms, both internal and independent, there do

not appear mechanisms for children and young people to have their voices

heard. They do not appear any mechanisms for children to complain or to

ask questions and receive information.

Current Violations

of human rights instruments

Having studied the

Convention on the Rights of the Child and the Refuge Convention, we have

used the articles contained therein as benchmarks against which to assess

the Australian Governments treatment of children and young people who

are seeking asylum or refuge in Australia. Outlined below is our assessment

of some of the rights from the Convention that are currently being violated

in Australian Immigration Detention Centres.

  • The right of

    all children to enjoy all the rights of the Convention without discrimination

    of any kind (article 2)

Currently children

who are seeking refuge in Australia are discriminated against on the grounds

of their refugee status and because of the country of their nationality.

  • The right to

    survival and development (article 6)

    Children and young people in Australian Immigration Detention Centres

    have frequently come from situations of violence and hardship. In detention

    they experience and/or witness violent and frightening events including

    serious assaults, sexual abuse, people suiciding or self-harming and

    people in heightened states of anxiety and distress. Some children and

    young people are reported to be at risk of suicide. Acts of self-harm

    are also reported among children and young people. The conditions in

    which children and young people are held are adverse to their healthy

    development.

  • The best interests

    of the child as a primary consideration in all actions concerning children

    (article3.(1))

    Decisions that affect the well-being and lives of children and

    young people in Australian Immigration Detention Centres do not appear

    to be based on their best interests, rather the decisions appear to

    be based more on their status of a refugee and on their country of origin.

  • The right to

    family life (articles 5,9, 18)

    Families

    are not infrequently separated under Australian immigration law. At

    times, a father might be released and the mother and children detained.

    At other times, a father or both parents might be detained and a placement

    in the community organised for one child, a number of siblings or all

    siblings.

  • Right to the

    highest attainable standard of health (article 24)

    It is clear, that children and young people held in Australian

    Immigration Detention Centres, particular the remote centres, are far

    from receiving the highest attainable level of health care, whether

    this being general or specialist health care or mental health care.

  • Right to education

    - universal, compulsory, free and including primary, secondary and higher

    education (articles 28 and 29)

    Children and young people in detention either do not receive education

    or receive it on an infrequent basis. Rules and regulations surrounding

    temporary visas work against young people receiving the education they

    require.

  • Right to practice

    their culture, language and religion (article 30)

    This right to do this is hampered by life in the detention centres.

  • Right to freedom

    from torture, ill-treatment and abuse (article 37)

    The accounts of children and young people we have examined, demonstrate

    that children and young people held in Australian Immigration and Detention

    Centres do experience ill treatment and abuse.

  • Right to protection

    from all forms of physical or mental violence, sexual abuse and exploitation

    (articles 19 and 34)

    Again, the accounts of children and young people we have examined,

    demonstrate that currently they are not protected from all forms of

    physical or mental violence, sexual abuse and exploitation when they

    are in Australian Immigration Detention Centres. Unaccompanied minors

    are totally unprotected.

  • Right to freedom

    of expression, thought and conscience (articles 13, 14, 15)

    As discussed above they are no mechanisms for refugee children

    and young people to have their voices and views heard.

  • Right to protection

    as a asylum seeking child (article 22)

    Children and young people in Australian detention Centres do not

    receive adequate protection.

  • Right to recovery

    from the effects of neglect, exploitation, abuse, torture or ill-treatment,

    or armed conflicts (article 39)

    Children and young people in Australian Immigration Detention Centres

    witness riots and armed conflict (despite the rudimentary nature of

    the arms). It could also be argued that by reason of the lack of provision

    for age, gender and developmental needs of children and young people,

    they are being neglected. In these circumstances, refugee children and

    young people are not assisted to recovery from what they have experienced

    and witnessed prior tot heir arrival in Australia. Post-trauma recovery

    services are not available to those held in detention.

  • Right not

    to be deprived of liberty unlawfully or arbitrarily, with detention

    only in conformity with the law, as a measure of last resort and for

    the shortest appropriate period of time (article 37)

    We consider the automatic detention of refuge children and young

    people in Australian Immigration Centres to be done in an arbitrary

    manner. Their detention is determined more on the basis of their status:

    • As children

      and young people;

    • Of being

      a refuge; and

    • Of their country

      of nationality or origin.

Policies that

are in place prevent their case being determined fully on its merits and

on their circumstances. Determinations in relation to children and young

people are not individually based.

  • Right to access

    to legal assistance and right to challenge their detention (article

    37)

    From the accounts we have examined, they appear to be practices

    occurring in relation to a person's right to legal assistance that would

    not be tolerated in the Australian criminal justice system. Legal assistance

    is difficult to obtain and people are not informed of their right in

    relation to legal assistance and appeal. Further, the right to appeal

    would appear to be a 'paper' right as the provisions governing appeal,

    make it unlikely that a court of law would grant release.

  • Right to rest

    and play (article 31)

    It is difficult to rest when witnessing high levels of distress

    and turmoil. Australian Immigration Detention Centres, particularly

    the remote centres, lack age and gender specific toys and recreational

    facilities. As discussed above, this situation would not be tolerated

    in any juvenile justice detention Centre in Australia.

    Right to privacy (article 16)

  • Right to a standard

    of living adequate for physical, mental, spiritual, moral and social

    development (article 27)

    The conditions in which refugee children and young people are detained

    in Australia do not afford this basic right.

  • If detained to

    be treated with humanity and respect for their inherent dignity and

    in a manner which takes into account their age (article 37)

    Being called by their number does not equate to be treated with humanity

    and respect fort heir inherent dignity.

  • A refugee is someone

    who 'owing to well-founded fear of being persecuted for reasons of race,

    religion, nationality, member ship of a particular social group or political

    opinion, is outside the country of his nationality and is unable, or

    owing to such fear, is unwilling to avail himself of the protection

    of that country; or who, not having a nationality and being outside

    the country of his former habitual residence as a result of such events,

    is unable or, owing to such fear, is unwilling to return to it.' Article

    1 (A) (2) Refugee Convention

We are of the view

that the framework of legislation, policy, procedures and practices governing

Australia's response to people seeking refuge in this country, do not

accurately reflect the tenets of this article.

  • Non-refoulement

    is the principle that prohibits the forcible return f any person to

    a country where they risk facing persecution on return. Article 33 (1),

    Refugee Convention

  • We are of the

    view that the framework of legislation, policy, procedures and practices

    governing Australia's response to people seeking refuge in this country,

    are underpinned by the aim of making people from a specific set of countries

    decide to return.

The vulnerability

and special needs of refugee/asylum seeking children and young people

We have studied the

UNHCR's Policy on Refuge Children (1993) and the updated UNHCR Guidelines

on Refugee Children. These guidelines are underpinned by a recognition

of vulnerability and special needs of children and young people seeking

refuge and asylum.

The guidelines reflect

the following concerns:

Refuge children

face far greater dangers to their safety and well being than the average

child. The sudden and violent onset of emergencies, the disruption of

families and community structures as well as the acute shortage of resources

with which most refugees are confronted, deeply affect the physical

and psychological wellbeing of refugee children. It is a sad fact that

infants and young children are often the earliest and most frequent

victims of violence, disease and malnutrition, which accompany population

displacement, and refugee outflows. In the aftermath of emergencies

and in search for solutions, the separation of families and familiar

structures continue to affect adversely refugee children of all ages.

This, helping refugee children to meet their physical and social needs

often means providing support to families and communities.

The guidelines focus

on refugee's children's developmental needs, their gender and cultural

framework, the special requirements of unaccompanied minors, and the particular

problems that arise in the context of repatriation and reintegration.

We are of the view that an independent audit against the UNHCR's guidelines

should be conducted of the framework of legislation, policy, procedures

and practices governing Australia's response to children and minors seeking

refuge in this country.

Recommendations

On the basis of our

research and of information available to us, we make the following recommendations.

  • That decision-making

    concerning children and young people seeking refuge in Australia be

    made in terms of promoting their best interests and on an individual,

    case-by-case basis.

  • That unaccompanied

    minors be placed with culturally appropriate families in the communities.

  • That families

    not be placed in isolated and remote Immigration Detention Centres.

  • That placements

    in the community be facilitated for families as soon as possible and

    as a priority.

  • That provision

    be made for the psychological, developmental, educational and social

    needs of children and young people seeking refuge in Australia.

  • That the health,

    psychological and disability needs of children and young people seeking

    refuge in Australia be met and that the services and care provided be

    in accord with acceptable standards in the community.

  • That provision

    be made for the needs of men and women as parents or as guardians.

  • That the legal

    situation concerning the loci of responsibility for the protection of

    and accountability for children and minors in immigration detention

    centres be clarified in a way which clearly identifies the roles and

    responsibilities of the Commonwealth, States and Territories.

  • That the Commonwealth

    Department of Immigration establish an office of an Independent Inspector

    General reporting directly to the Minister responsible for this area.

    The responsibilities of this office would include regular reviewing

    of immigration detention centres and the investigation and reporting

    of complaints.

Last

Updated 10 October 2002.