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Submission to National Inquiry

into Children in Immigration Detention from

the Refugee Council of Australia



1. Introduction

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.

  • 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

Group

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

of Unaccompanied Minors

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

Unaccompanied Minors

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

Situation in Australia

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;

  • 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

Current System

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

Proposed Program Operate?

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.

[12]

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.

9. Conclusion

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

1. The

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."

2. RCOA

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.

3. Trafficking

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".

4. UNHCR

Guidelines on Unaccompanied Children.

5. It

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.

6. In

all cases of unaccompanied children there is an important, and often complex,

balancing act between protection and family unity.

7. The

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.

8. This

issue is the subject of ongoing negotiations between the Federal and State

Governments.

9. Country

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.

10. The

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.

11.

This would include making representations to the Minister to use his discretion

to release a child from detention.

12. Framework

based on ideas in Separated Children Seeking Asylum in Europe: A Program

for Action, Sandy Ruxton.

Last

Updated 9 January 2003.