Commission Website: National Inquiry into Children in Immigration Detention
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Submission to National Inquiry
into Children in Immigration Detention from
the Refugee Council of Australia
- Introduction
- The
Target Group
- The
Rights of Unaccompanied Minors
- The
Needs of Unaccompanied Minors
- The
Current Situation in Australia
- Some
overseas approaches to guardianship
- Improving
the current system
- How
would the proposed program operate?
- Conclusion
The Refugee Council
of Australia welcomes the Inquiry by the Human Rights and Equal Opportunity
Commission into Children in Immigration Detention. In our opinion, this
is a very timely and important Inquiry into an area of great significance
to Australia as a nation and to the way that Australia is perceived internationally.
The Refugee Council
is aware of the considerable interest in this Inquiry and the fact that
the Commission will receive submissions from a large number of organisations
and individuals with expertise in relevant areas including the law, medicine
and child development. For this reason, the Council sees no point in replicating
material we know will be covered by other submissions. Instead we have
elected to focus on an area that we suspect might not have as wide coverage,
that of the guardianship arrangements for unaccompanied minors seeking
asylum, because this is an area where the Council can hopefully add value
by drawing on our international experience and contacts with counterpart
organisations overseas.
Before going down
this path, however, we would like to make some introductory statements.
The Refugee Council:
- strongly opposes
the current Government's policy of mandatory non-reviewable detention;
- believes that
the current detention policy contravenes many of Australia's international
treaty obligations, in particular:
- Article 9
of the International Covenant on Civil and Political Rights
and Article 37 of the Convention on the Rights of the Child,
which prohibit arbitrary detention;
- Article 37
of the Convention on the Rights of the Child which prohibits
detention of children except as a last resort and for the shortest
appropriate period of time;
- Article 9
of the International Covenant on Civil and Political Rights and
Article 37 of the Convention on the Rights of the Child,
which recognise a right to take legal proceedings to challenge detention;
- Article 22
of the Convention on the Rights of the Child, which requires
the state to provide appropriate protection and humanitarian assistance
to refugee and asylum seeker children, especially in relation to
family reunion.
- Article 9
- considers that
the current detention policy also fails to comply with the UNHCR Detention
Guidelines, Excom Conclusion No. 44;
- is deeply concerned
about the impact that the conditions in immigration detention centres
have on the development and psychological well-being of children;
- argues that there
are alternatives to the current detention policy that meet the Government's
expressed desire to control entry to this country while at the same
time are legally and morally defensible.
This being said,
it is the intention of this submission to highlight the major shortcomings
of the current provisions in the guardianship of unaccompanied minors
seeking asylum in Australia which is seriously compromised by the many
areas in which there is conflict of interest and complicated by complex
federal-state demarcations. In this regard, the submission relates specifically
to the 3rd of the Terms of Reference of the current Inquiry.
RCOA argues that
there is a significant need for a greater and more effective level of
support for unaccompanied minors as they move through the asylum process
and after a decision is made as to their refugee status. It is further
argued that there needs to be continuity of support for the entire period
that the minor is in Australia, irrespective of whether they are in detention
or the community. In this context, RCOA examines international models
of guardianship of unaccompanied minors and recommends a system of active
guardianship that seeks to marry the lessons learnt elsewhere with the
local conditions.
2. The Target
Amongst those who
arrive in Australia seeking refugee status are a number of unaccompanied
minors. Under Australian law, an unaccompanied minor is defined as a person
under 18 years old who is either alone or accompanied by a person or relative
under the age of 21. [1]
Unaccompanied minor
asylum seekers are not a numerically large group [2]
, but they do require particular attention because of their vulnerability
as children and their rights as children and as potential refugees. Unaccompanied
minors may have lost their parents or other key carers. They may have
lost physical items such as their home and material possessions. They
have lost familiar surroundings and familiar ways of doing things. The
children may also have experienced trauma in the form of warfare, destruction
of their homes, rape, violent death of family and friends, arrest and/or
torture, shortage of food and water, and fear of discovery or arrest.
In addition to children
defined as "unaccompanied", there are also children who arrived
with a parent or guardian and subsequently separated from them. These
are generally referred to as "separated" minors. To all intents
and purposes, their needs are the same as unaccompanied minors and for
the purpose of this submission, the two groups will be linked together
under the general descriptor of "unaccompanied minors".
It is important to
note that amongst unaccompanied and separated minors, there could be children
who are the victims of trafficking [3] that adds another
dimension to their need for protection. The fact that a minor has been
trafficked is an issue entirely separate from whether the minor has Convention-related
protection needs and the mode of arrival should never preclude the lodgment
of an application for a protection visa if such is considered appropriate.
Before moving on,
however, it is important to stress that all members of the target group
are first and foremost children and the fact that they are also asylum
seekers must not over rule their rights and needs as children.
3. The Rights
There is considerable
guidance in international law about the rights of unaccompanied minors
and the responsibilities states have towards them. This is supplemented
by various non-binding but aspirative guidelines and conclusions from
UNHCR.
The Convention on the Rights of the Child (CROC), to which the Australian
Government is a signatory, states that "in all actions concerning
children the best interests of the children shall be a primary
consideration" (Article 3.1).
The CROC also sets out that:
- every child who
is seeking refugee status has a right to protection and humanitarian
assistance in the enjoyment of the rights contained in treaties and
declarations pertaining to refugees (Article 22.1);
- children who
are capable of forming his or her own view should be consulted in matters
affecting the child and be provided with the opportunity to be heard
(either directly or through a representative) in any judicial or administrative
proceedings affecting the child (Article 12);
- children deprived
of their families are entitled to special protection and assistance
(Article 20.1);
- states shall
assist guardians to carry out child rearing responsibilities (Article
18.2).
The UNHCR Handbook
on Procedures and Criteria for Determining Refugee Status, in paragraph
214, states that a legal guardian should be appointed to promote a decision
that is in the best interests of an unaccompanied or separated child.
The UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied
Children Seeking Asylum, in paragraph 5.7, re-enforce the necessity of
ensuring the appointment of guardians.
4. The Needs of
First and foremost,
it is important to stress that children can also be the victims of persecution
and can be refugees in their own right. Sometimes the grounds for persecution
will be the same as for adults, as in the case of race or religion. In
some instances, however, the persecution is age-specific, for example
under-aged conscription, female genital mutilation or indentured labour.
It is internationally
recognized that unaccompanied minors need additional support during and
after the refugee status determination process. This support is required
in relation to:
- advocacy
during the determination process. While some older minors may have an
understanding of the context of the persecution they have experienced
and the reasons for their flight, this is not always the case. Then
in the case of younger unaccompanied minors (noting that there have
been some as young as 8), it is unrealistic to expect them to be able
to articulate their reasons for needing protection. If the refugee status
determination process is to operate efficiently [5],
and if the best interests of the child are to be protected [6]
, someone is required to be an advocate for the child and to take responsibility
for signing legal documentation on his/her behalf. It is stressed that
this role cannot be filled by the legal representative whose responsibilities
are clearly defined and quite different. Further, it is not only in
relation to the determination process that a child might need an advocate.
It could also be in relation to access to support or programs, tracing
family members, securing release from detention or other matters concerning
the best interests of the child;
- protection:
the sad reality is that children are vulnerable to abuse. The chances
of abuse are increased when children are in an environment where people
are in a state of tension and where social mores have been eroded. Detention
centres are such environments. It stands to reason that children who
do not have a parent or caregiver are more likely to be subjected to
sexual or physical abuse. While the risk might be lessened for minors
in the community, unsupervised adolescents are subject to many pressures
from peers and from unscrupulous adults who prey on their need for a
sense of "belonging" to undertake criminal acts;
- care: younger
unaccompanied minors need day to day care - someone to make sure that
they are, for example, being properly fed, getting enough sleep, washing
regularly, in possession of suitable clothes and attending school. Someone
is needed to monitor child development and to seek help if there are
medical, psychological or educational problems. Someone is also need
to give the child affection and support given the trauma that these
children have gone through. And while some of the older minors might
not need the same level of care, it is inappropriate to assume that
they can cope alone. They too need care - but more in the form of mentoring,
guidance and knowing that they are not alone to cope with all of the
complexities and decisions life in an unfamiliar environment requires.
Adolescents also need monitoring in terms of school attendance and advice
about vocational choices.
It is the view of
the Refugee Council that these needs can only be met where there is active
oversight by a legal guardian, supplemented by a comprehensive program
of care and protection.
5. The Current
The current situation
relating to the guardianship of unaccompanied minor asylum seekers and
refugees is complex and varies according to the mode of arrival and immigration
status of the child.
It is not the intention of the Refugee Council to give a detailed analysis
of the current situation as we are aware that many of the other agencies
preparing submissions to this Inquiry are doing exactly this. Rather,
what we intend to do in this section is to highlight some of the key problems
of the current system so as to develop the rationale for the changes we
propose.
5.1. Unaccompanied
Minors in Detention
Where a minor seeks
to enter Australia without authorisation with the intention of seeking
refugee status, he/she is taken into immigration detention for the duration
of the determination process. While the Minister for Immigration and Multicultural
and Indigenous Affairs (the Minister) has discretionary powers to release
these children into the community, in most cases the Minister chooses
not to exercise these powers.
While the children
remain in detention, the Minister is their legal guardian. RCOA argues
that inherent in this guardianship is significant conflict of interest.
The Minister is required to be both:
- guardian and
jailer;
- guardian and decision
maker.
There is no way that
the Minister can give due regard to what are inherently contradictory
functions. Nor is it possible that a Minister of the Crown can take an
active role in monitoring the welfare of every child under his guardianship.
In practice, the
guardianship is delegated, in the first instance formally to the Department
of Immigration and Multicultural and Indigenous Affairs (DIMIA) manager
in the detention centre and then, informally to the staff of Australasian
Correctional Management (ACM). This delegation, however, does nothing
to resolve the problems of conflict of interest. The DIMIA manager is
the Minister's delegate in the centre and as such, has the same responsibilities
- and conflicts - as the Minister and while ACM does have a responsibility
for the care and welfare of the detainees, it also acts as their custodians.
This system leads
to many legally questionable practices, such as a DIMIA officer signing
the minor's application for refugee status, or worse still, the minor
signing him/herself.[7] It also leaves minors exposed
to neglect and abuse in the detention centres as regular staff rotation
means that there cannot be continuity of care.
As things stand at
present, there is no delegation of guardianship to a person who has the
best interests of the child as his/her sole and unambiguous responsibility
and who will have responsibility for the child for as long as he/she remains
in Australia or until the child reaches majority. There is therefore no
designated individual who can:
- ensure that the
child is properly represented during the refugee status determination
procedures and take legal responsibility for signing documents on his/her
behalf;
- act as an advocate
for the child if there are problems in the refugee status determination
process or with welfare or other issues;
- oversee the care
and management of the child;
- ensure that the
child is not exposed to abuse or neglect.
While in no way fully
compensating for this shortcoming, it is relevant to note that there has
been activity between the Federal and State Governments on the issue of
child protection within immigration detention centres. Most notable is
the recently drafted Memorandum of Understanding (MOU) between DIMIA and
the South Australian Department of Human Services (DHS), which relates
to child protection notifications and Child Welfare Issues pertaining
to children in immigration detention in South Australia.
On the matter of
unaccompanied children, the MOU (at section 11.2) requires " that
on request from DIMIA, DHS will provide advice and assessments on appropriate
care arrangements for unaccompanied minors in immigration detention in
South Australia". This is a step in the right direction but the inherent
conflict of interest in the role of DIMIA or its appointed officer's remains.
Nonetheless, this
agreement gives added protection to all children in danger of sexual,
physical or emotional abuse whilst in detention. It also allows provision
for the special needs of unaccompanied minors to be addressed, although
it does not ensure this.
The MOU explicitly
excludes a number of activities including:
a) the processing
and decision making in relation to applications for visas for persons
in immigration detention and any merits or judicial review related to
such decisions;
b) the conduct of negotiations with foreign governments and international
agencies on questions related to the removal from Australia of foreign
nationals;
c) the interpretation of international agreements to which Australia
is a party, which might impact on the delivery of Australia's immigration
detention functions and policies.
In addition to formal
agreements between some states and the Commonwealth, there are a number
of NGOs working with asylum seekers both in and outside detention centers.
These NGOs often liaise with relevant authorities to assist cases of special
need where and when they arise. This too is ad hoc and ultimately at the
discretion of DIMIA and ACM.
In the Australian
context guardianship of unaccompanied minors in detention has become a
minimalist and legal notion unable to address their range of needs. Guardianship
as undertaken by the Minister and his delegates cannot adequately support
a minor in detention and does not prepare the child for a constructive
and positive life outside detention. Some/many of these children will
ultimately remain in Australia and it is in both the child's and the country's
interests that they are given adequate support as they grow towards adulthood.
5.2. Guardianship
of Unaccompanied Minor Asylum Seekers in the Community
On those occasions
where the Minister has elected to exercise his discretion and release
an accompanied minor into the community, the minor is issued with a bridging
visa and guardianship is transferred to the state department responsible
for child welfare. [8]
There have also been
a small number of unaccompanied minors who have entered Australia lawfully
and then applied for refugee status. They too are issued with bridging
visas (which enable them to remain lawfully in the community when their
substantive visa expires) and they too are referred to the relevant state
welfare agency.
The level of support
the minor receives from the state government agency varies according to
the age and needs of the asylum seeker and the state in which the minor
is residing. The younger the minor, the greater the level of support provided.
Typically for minors over the age of 16, there is very little intervention
by the state and thus it can be argued that care and protection needs
are not being effectively met.
In no states is a
person appointed to act as legal guardian for the purposes of the refugee
status application procedure and thus the child has no effective advocate
in this or other interactions with authorities.
5.3. Guardianship
of Unaccompanied Minor Refugees
The situation with
respect to unaccompanied minors who have been determined to be refugees
closely approximates that of asylum seekers. Their guardianship is delegated
by the Minister to the relevant state authority. In some states, Queensland
being an example, the state agency further delegates responsibility to
a community-based organisation, in this case Mercy Family Services.
Concern has been
raised about:
- the level of
resources available to the state agencies to undertake this role; [9]
- the ability of
the state agencies to provide adequate support given the limited resources
and the many other pressing demands on their services;
- whether the level
of support afforded to "wards of the state" is sufficient
to meet the complex legal and social needs of unaccompanied refugees.
While this is in
no way intended as criticism of any state agency, it does point to a system
unequal to the task it is required to perform and to the fact that there
can be no guarantees that the advocacy, protection and welfare needs of
unaccompanied minor refugees are being met in a coordinated and comprehensive
fashion.
6. Some oversees
approaches to guardianship [10]
The current system
in Australia has many flaws and in no way can be said to operate in the
best interests of the child. It is therefore important to look for alternatives.
Given that many other
western asylum countries receive vastly greater numbers of unaccompanied
minors than does Australia, RCOA thought that there would be merit in
examining how other countries respond to unaccompanied minors to see what
lessons can be learnt.
Whilst some of these models have inherent deficiencies, more often than
not the result of funding shortfalls, the intention of each is to protect
the best interests of the child. By and large these models are structured
to deal with children outside detention, some focusing primarily on care
provision, others having a stronger focus on guardianship.
6.1. Canada
In Canada, the care
arrangements vary from province to province but all provinces are required
by Federal law to appoint a 'Designated Representative' for the child
in relation to the asylum procedures.
In British Colombia,
for example, the unaccompanied minors amongst the large influx of Chinese
boat arrivals in 1999 were taken into care and guardians were appointed
for them. In Quebec there is a specialist social service agency that works
with refugees and immigrants, and which provides a classic social work
service to all unaccompanied children. There are, as yet, no legal guardianship
arrangements but these are being developed. In Ontario, the province with
large numbers of asylum seekers, it is the practice to make unaccompanied
minors under 16 wards, a status equivalent to guardianship.
6.2. Europe
Before examining
what individual states are doing in Europe, it is worth noting that the
Council of Ministers of the European Union passed a resolution in 1997
on unaccompanied minors. This resolution identifies the need for the representation
of separated children as soon as possible after arrival, however, the
means of ensuring this is left open to interpretation by individual states.
In 1998 a continent-wide
program was established by UNHCR and the International Save the Children
Alliance. This program aimed to establish the numbers of unaccompanied
and separated minors, to monitor what was occurring in various states
and to develop measurable standards for their care. The 'Separated Children
in Europe Program' (www.sce.gla.ac.uk)
created a European-wide framework of good practice, (the Statement of
Good Practice) which looks in depth at the experiences of separated children,
with a view to highlighting ways in which the situation could be improved.
Also relevant to
note is the adoption by the European Union's Justice and Home Affairs
Council on 26th April 2002 of minimum standards for the reception of asylum
seekers in member states. The directive, which will eventually be reflected
in national legislation throughout all EU member states, contains some
provisions that will result in an overall improvement in general reception
conditions in several EU countries. Included in this is guidance on dealing
with specific groups of asylum seekers, including unaccompanied minors.
(http://europa.eu.int/comm/justice_home/unit/immigration_en.htm)
On a country-by-country
basis, it is worth noting:
i. The Netherlands
According to the
Dutch civil code, the civil court assigns a guardian to any separated
child who applies for asylum in the Netherlands and who is not over 17
years and 6 months old. If there is no relative or friend living in the
Netherlands, a staff member of an NGO will be appointed as guardian. Each
one of these court-appointed NGO guardians has approximately 25 wards.
The role of the guardian includes:
- integrating the
child into Dutch society and providing general guidance. For this purpose,
he or she will see the child every month and will also be in contact
with relevant organizations such as the school, the 'new arrivals"
office, the government immigration office, lawyers and the organizations
responsible for the child's daily care in the reception centre;
- deciding how
the child will be cared for on a long-term basis. The guardian will
decide this after consulting those who took care of the child in the
reception centre during the first three months in the country;
- advising on educational
pathways;
- arranging for
the child to receive financial support;
- assisting the
child if he or she wants to find other family members. If this is the
case, the guardian will represent the child at the tracing department
of the Dutch Red Cross.
ii. Norway
Under the Norwegian
system, independent guardians are appointed to assist the child until
he or she is 18 years of age. Their role is to ensure that the rights
of separated children are respected and implemented by the responsible
authorities. The children have a right to the support of a guardian throughout
the asylum process - at police interviews, during residence in the asylum
centre, and after settlement by local authorities. The guardian also has
some personal responsibility for the child, but this is not to replace
the social support provided by the child welfare authorities.
iii. Italy
In Italy, the law
stipulates that guardians are appointed to assist the child until he or
she is 18 years old, and they should ensure that the rights of the child
are respected and implemented by the responsible authorities. The theory
is that unaccompanied children should be supported throughout all the
asylum procedure, including the appeal phase. In practice, however, it
can often take a considerable length of time for a guardian to be appointed.
This causes a number of problems, not least because an unaccompanied child
cannot make an asylum application without the agreement of the guardian.
In some cases unaccompanied children have been prevented from being reunited
with recognized refugee family members, as entitled to under the Dublin
Convention, due to delays in appointment of guardians.
iv. Sweden
In Sweden all unaccompanied
children have an adviser appointed (usually from the Board of Guardians),
whose task is to 'protect the interests of the child from a holistic perspective
and with his or her best interests at heart. How this role is carried
out in practice, however, varies significantly as there are no clear guidelines.
v. The United
Kingdom
In 1993 the Social
Services Inspectorate, within the Department of Health, published 'Unaccompanied
Asylum-Seeking Children: A Practice Guide and Training Pack', to address
concerns about the care of this group of children arising within statutory
childcare organizations. We understand this is currently being updated.
This work led to
the establishment of the "Panel of Advisers for Unaccompanied Children"
scheme in 1994. This scheme is funded by the Home Office and administered
by the (British) Refugee Council's Children's Section.
It is the aim of
this scheme to provide an adviser for each newly arrived unaccompanied
minor who can give support and advice, be an advocate for appropriate
care arrangements, be attentive to cultural and religious needs, and ensure
education, health care and legal advice needs are met. Many advisers are
from refugee communities and can work in the child's mother tongue; others
work through interpreters. Advisers were initially matched with the child
for 10 weeks.
During the first
year of operation the Panel provided support to 361 children and young
people. During 2000-2001, 4,276 referrals were received, half from the
Asylum Screening Unit or the Immigration Service. As numbers of new arrivals
have grown, the service could not meet its intentions and could no longer
provide an individual adviser to all new arrivals. In an effort to compensate,
a drop-in service has been developed were young people can receive on
the spot assistance with immigration, education, health and housing concerns,
but this does not meet needs for ongoing advice, contact and guidance.
While the UK's Panel of Advisors provides a model for the appropriate
orientation of unaccompanied children on arrival (or subsequently if self
referred or referred by another agency), it does not provide legal guardianship.
In the United Kingdom, the Children Act (1989) does not really serve to
ensure anything equivalent to guardianship, although it does contain provisions
for considering the best interests of the child.
Unaccompanied children
become the responsibility of the Local Authority's Social Services Department
in the area the unaccompanied minors were when drawn to the attention
of the authorities. The level and type of care provided depends on the
Local Authority, in large part because of the differential - and sometimes
inadequate - level of resources devoted to monitoring the welfare of the
young people. Care provided also depends on the age or assumed age of
the child. Minors are variously referred to children's homes, hostels
bed and breakfast accommodation and fostering arrangements. Within this
broad framework there are some specific programs, for example:
- fostering by
culturally matched carers: most London Social Services Departments have
recruited foster carers from refugee and migrant communities, to enable
them to place unaccompanied children with carers from their country/ethnic
or language community of origin. They are trained, supported, supervised
as other foster carers, and expected to provide care to nationally agreed
standards. National standards apply regarding assessment of children
and regular reviewing of placements;
- residential units
and children's homes: there are specialist units run by Social Services
Departments (such as that in the Hillingdon area which works with minors
detected at Heathrow airport) or NGOs (for example The Cedars which
is run by the British Refugee Council). Units vary in size and in the
level of care, with those for older adolescents based more on a semi-independence
model. The programs link the minors to trained workers from the same
language and/or cultural background and ensure they are linked to educational,
health and legal resources. The support networks between young people
and between young people and staff forged at this time typically continue
to function after they leave the facilities;
- a drop in service
for older unaccompanied refugee children: established by the British
Refugee Council in 2000 and extended in 2001 due to the high level of
demand.In addition, the Diana, Princess of Wales Memorial Fund has funded
work with unaccompanied children through 10 different NGOs based mainly
in London. Included in this are the following programs:
- "Befriending",
a program established by the Medical Foundation for the Care of
Victims of Torture for clients of their Child and Adolescent Psychotherapy
team. The program links the unaccompanied minor to a trained adult
who commits to befriend the minor for at least a year. The adult
"friends" receive support and debriefing from the service
during this time;
- "Befriending",
- activity, social
support and sports clubs run by organisations such as Save the Children
Fund.
In addition, there
are two fora that bring service providers and policy makers together around
the issue of unaccompanied minors. One is run by the Department of Health
and the other, the Children's Consortium on Separated Children, is an
NGO initiative. Both have proved very valuable in terms of ensuring information
exchange, monitoring programs and developing best practice frameworks.
7. Improving the
The current system
for dealing with unaccompanied and separated minors who are seeking asylum
in Australia has many flaws. While it does allow for the appointment of
a legal guardian:
- the principal
guardian, the Minister for Immigration, has conflicting and contradictory
responsibilities that will never allow him to focus exclusively on protecting
the best interests of the child;
- the principal
guardian delegates his responsibility to unaccompanied minors in immigration
detention to others who have similar conflicting interests and to people
who are in rotating positions (thereby ensuring no continuity of care
or support);
- the principal
guardian delegates responsibility for unaccompanied minors in the community
to state agencies whose capacity to provide specially targeted services
is limited by lack of resources.
Unaccompanied minors
who seek Australia's protection are not linked to a responsible adult
who will remain with them during the process and who will act as an advocate
on their behalf and oversee their welfare. As a result we have seen unaccompanied
children as young as eight in Woomera for over six months during some
of the worst violence seen at the centre.
The failure of the
current system to provide effective guardianship means that unaccompanied
minors are left without the advocacy, protection and care that they need
and to which they are entitled. It is the Council's opinion that a whole
new approach is required to address the current problems and to make Australian
practice compliant with the Convention on the Rights of the Child and
the 1951 Convention Relating to the Status of Refugees. For this we recommend
the following:
i. Transfer Guardianship
Responsibility:
Guardianship should
be transferred from the Minister for Immigration to the Minister for Children
and Youth Affairs. This would address the issue of conflict of interest
and place the prime responsibility in the portfolio of a Minister whose
mandate is to ensure the protection of children. This transfer would also
result in the engagement of the federal Department of Family and Community
Services (FACS).
ii. Delegation
of Guardianship:
Recognizing that
no Minister can assume the day-to-day responsibilities of guardianship,
it is further recommended that the direct guardianship responsibility
for unaccompanied minor asylum seekers be delegated to members of a Panel
of Advisers. [11]
It is envisaged that
the Panel of Advisers program would be funded by FACS and administered
by a community organisation that had successfully tendered to undertake
this role.
8. How Would the
The Panel of Advisers
would be made up of specially selected people who:
- ideally (but not
exclusively) come from the background of the main entrant groups, noting
as this is said, that there are sub-groups within nationalities that
have to be considered, and that in some instances there are good reasons
why a minor should not be linked to someone from his/her own background;
- have undergone
full police clearances to establish good character;
- have qualifications
or experience in child welfare or a related discipline;
- have undergone
specialist training in the role and responsibilities of a guardian and
about the particular issues confronting unaccompanied minors who are
seeking asylum.
The Advisors would
operate according to a set of Policy and Practice Guidelines drawn up
by FACS, in consultation with the governing NGO, and approved by the Minister
for Children and Youth Affairs.
Each adviser would
work with a number of children (maximum 20) at any one time and would
be responsible for oversight of their legal and welfare arrangements.
They would have the authority to intervene with relevant authorities.
The number of advisers
appointed at any time would be a decision based on existing and projected
needs. Using a mixture of fulltime positions and part time positions would
allow for flexibility to respond to changing needs, while at the same
time enabling continuity and the development of expertise.
Advisers should be
located in major capital cities. This would require that, if an unaccompanied
minor is held in detention (a practice in no way supported by the Refugee
Council but which currently exists), the unaccompanied minor be housed
in a facility in Sydney or Melbourne and not in any of the remote centres.
As soon as an unaccompanied
minor is identified, an Advisor will be appointed. It is envisaged that
this Advisor will retain guardianship responsibilities for the minor until
he/she leaves the country or reaches the age of 18, unless the minor relocates,
the Advisor relinquishes the position or there is a breakdown in the relationship.
In which case, a new Advisor would be appointed.
The responsibilities of the Advisor might include the following: [13]
- to act as an advocate
for the minor and to ensure that all decisions made in relation to the
minor are in his/her best interests;
- to ensure that
the minor has suitable care accommodation, education, language support
and healthcare;
- to ensure that
the minor is not placed in any situation that would place him/her at
risk of psychological trauma, physical danger or sexual abuse;
- to ensure that
the child has competent and child-responsive representation to deal
with his/her asylum claim and/or other legal matters;
- to act as a mentor
to the minor and provide guidance and support;
- to contribute
to finding a durable solution in the minor's best interests;
- to provide a link
between the minor and the various organizations that might provide services
to him/her: DIMIA, ACM (not just centre management but also health workers,
teachers and welfare staff), other Government agencies (Centrelink,
community services, education, health etc) and community welfare agencies;
- to monitor any
foster or care arrangements;
- to assist the
minor with family tracing and reunification.
It would not
be the role of the Advisor to provide care or legal advice. For minors
in detention, day-to-day responsibility for care would rest with ACM and
DIMIA as it does at present. Advisors would have automatic access to detention
centres and to the detention centre managers as the delegated guardian
of the unaccompanied minor.
When the minor is
in the community, case-specific decisions would be taken as to what is
in the best interests of the child. For older adolescents, this could
be shared accommodation, a hostel or independent living. If foster care
is considered appropriate, negotiations could be undertaken with the relevant
state agencies as they are at present, with the key difference being the
involvement of the Advisor.
Given the success
of the Drop-In Centres in the United Kingdom, it is also suggested that
consideration be given to opening Drop-In Centres for young asylum seekers
and refugees in major centres. These would provide a safe place for the
young people to gather and participate in culturally appropriate and constructive
activities with others in a similar position. Many young refugees report
that they miss their siblings very much. Such centres would enable young
refugees to acquire new "brothers" and "sisters",
bound by their common experiences if not by blood.
The Refugee Council
recognises that the above proposal requires legislative changes and the
allocation of additional resources. We reiterate, however, that the current
system is deeply flawed and argue that only by radically changing the
nature of the way that Australia protects and supports unaccompanied minors
will any real improvement be achieved.
It is vitally important
that we learn from Australia's failure to provide constructive support
to the young Indochinese minors who came in the 1980s. This resulted in
young people falling between the cracks of society - neither functionally
literate in their own language or in English, not accepted by their own
community and excluded from the mainstream. It is little wonder that many
sought connection and "family" by joining gangs and participating
in antisocial or criminal behavior. The issues from this time are well
documented. What we have to guard against is creating new fodder for sociologists
with each new wave of unaccompanied minors.
REFERENCES:
Ayotte, Wendy: Separated
Children in Europe Program: Statement of Good Practice. October 2000.
International Save the Children Alliance.
Ayotte, Wendy and Williamson, Louise: Separated Children in the UK - an
Overview of the Current Situation. August 2001. Refugee Council and Save
the Children Alliance.
Ruxton, Sandy: Separated Children Seeking Asylum in Europe: A Program
for Action. 2001. International Save the Children Alliance.
UNHCR: Guidelines on Refugee Children.
UNHCR: Guidelines on Unaccompanied Children.
UNHCR: Guidelines on Detention.
ENDNOTES
Commonwealth Immigration (Guardianship of Children) Act (1946-1973) defines
an unaccompanied minor as " a person under the age of 18 years who
enters Australia as a non-citizen and who intends to become, or is intended
to become, a permanent resident of Australia, not being a person who enters
Australia in the charge of, or for the purpose of living in Australia
under the care of a parent of the person or a relative not less than 21
years of age."
does not have access to the figures for the total number of unaccompanied
minors who have been held in detention over a given period. What we have
been able to obtain is the number of unaccompanied minors in detention
at various points in time. For example on 16/2/01 there were 48 unaccompanied
minors in immigration detention. On 1/6/01 there were 39 and on 24/8/01
(i.e. just before the Pacific Solution came into effect) the figure was
49 (Source: DIMIA). Curtin and Woomera have traditionally housed the largest
numbers. It is unusual to find unaccompanied minor asylum seekers in the
community but there have been occasional cases. As at 19th April 2002,
there were 169 minors with Temporary Protection Visas receiving Centrelink
benefits.
is defined by the Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, supplementing the UN Convention
against Transnational Organised Crime, as "the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the treat or use
of force or other forms of coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of vulnerability or of the giving
or receiving of payments or benefits to achieve the consent of a person
having control over another person for the purposes of exploitation. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others
or other forms of sexual exploitation, forced labour or services, slavery
or practices similar to slavery, servitude or removal of organs".
Guidelines on Unaccompanied Children.
can be argued that while the notion of children as refugees in their own
right is not new, the concept is not as well understood by all decision
makers as it should be.
all cases of unaccompanied children there is an important, and often complex,
balancing act between protection and family unity.
statement of claims that accompanies the application for refugee status
is a Statutory Declaration and, as such, requires the person signing it
to be over the age of majority.
The name of this Department varies from state to state.
issue is the subject of ongoing negotiations between the Federal and State
Governments.
information in this section has been gathered by RCOA researchers through
a variety of means including making contact with partner organisations
in the countries listed and through contact with some of the specialists
on unaccompanied minors working in Europe and North America, including
Wendy Ayotte and Sandy Ruxton.
name "Panel of Advisers" has been taken from the British model
and was chosen because this model - as it would operate if it were properly
resourced - most closely reflects the Council's vision for a workable
model in Australia.
This would include making representations to the Minister to use his discretion
to release a child from detention.
based on ideas in Separated Children Seeking Asylum in Europe: A Program
for Action, Sandy Ruxton.
Last
Updated 9 January 2003.
