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Commission Website: National Inquiry into Children in Immigration Detention

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Submission to the National

Inquiry into Children in Immigration Detention from

Save the Children


Executive Summary

1.

Save the Children

2.

Children in Australia

3.

Failure to incorporate international instruments into Australian law

4.

Australia's non-refoulement obligations

5.

Unlawful entry

6.

Temporary Protection Visas

7.

The best interests of the Child (Article 3)

8.

The right to family life (Article 5)

9.

Deprivation of Liberty (Article 37)

10.

Unaccompanied children (Article 20)

11.

Comparisons with overseas practice

12.

Meeting our international obligations


1. Save the Children

Save the

Children is the world's largest independent child development organisation,

with 32 member countries and programs in over 100 countries. Save the

Children works for:

  • a world which

    respects and values each child

  • a world which

    listens to children and learns

  • a world where

    all children have hope and opportunity

As well as its programs

in Australia and the region, Save the Children Australia (SCA) has played

a vital role in the advocacy of children's rights in Australia. Such work

contributes to the development of public policy which acknowledges and

protects children's rights in Australia.

2. Children in

Australia

Although

other international obligations are also relevant to this issues facing

children seeking asylum, this paper will focus on The Convention on the

Rights of the Child (CROC) because of Save the Children's intrinsic connection

to the development and monitoring of Convention.

3. Failure to

incorporate international instruments into Australian law

In the absence of an integrated system within Australia to protect children's

rights, SCA sees the failure to incorporate international treaties into

Australian law and regulations as a serious shortcoming in protecting

the rights of children in immigration detention.

4. Australia's

non-refoulement obligations

SCA is concerned that Australia may be in breach of its obligations not

to return asylum seekers to a country where they would be at risk through

its policy of screening asylum seekers upon arrival and of attempting

to turn back vessels which seek to enter Australian territory.

5. Unlawful entry

SCA believes that Australia is in breach of non-discrimination principles

in Article 2 of the Convention on the grounds of its different treatment

of child asylum seekers arriving without visas and children who arrive

on a visa and subsequently seek asylum, as a result of its policy of detention

of unauthorised arrivals.

SCA is concerned

about the treatment of rejected child asylum seekers and other children

in immigration detention and the extent to which their rights under Articles

2 and 3 of the Convention in particular (non-discrimination and the best

interests of the child) are respected.

6. Temporary Protection

Visas

SCA believes that the issuing of Temporary Protection Visas is a breach

of CROC Articles 2, 3, 6, 7, 9, 10, 12, 22, and 26 and should be abolished

in favour of Protection Visas.

7. The best interests

of the Child (Article 3)

SCA believes that the detention of child asylum seekers, either with their

families, or unaccompanied, is not in the "best interests" of

the child, which should be the 'prime consideration in the treatment of

children. We assert that current "legislative, administrative and

other measures" (Article 4) do not adequately take the "best

interests of the child" into account.

8. The right to

family life (Article 5)

SCA believes that the Convention on the Rights of the Child, when read

with other relevant treaties such as the Refugee Convention, indicates

that alternatives to detention should be sought which allow children to

remain with their parents, with detention as a last resort. As this is

not the case at present, SCA believes that Australia is in breach of Article

5 of the Convention.

9 Deprivation

of Liberty (Article 37)

SCA believes that the current policy represents a systemic breach of Article

37 of the CROC. Detention of child asylum seekers is currently not a measure

of last resort, it is not for the shortest appropriate time, alternatives

are not given adequate consideration, it is not necessary or proportionate,

and the right to challenge detention is merely formal.

Placing children

in detention upon unlawful entry into Australia, as authorised in the

Border Protection Bill involves, Australia further breaching its obligations

under the Convention.

10. Unaccompanied

children (Article 20)

SCA is concerned that the treatment afforded to unaccompanied children

upon arrival, in the processing of their claims for asylum and their ongoing

detention as a result of an unsuccessful claim for asylum constitute a

breach of Article 20 of the Convention, which states that an unaccompanied

child seeking asylum must be afforded 'special protection and assistance'

by the government.

SCA believes that this situation is unsustainable. Guardianship for unaccompanied

children in immigration detention should be the responsibility of an independent,

properly resourced authority, whether State or Federal, which can advocate

for the best interests of the child. This would bring Australia into line

with current overseas practice in comparable countries.

11. Comparisons

with overseas practice

SCA believes that the current Australian law and regulations to detain

asylum seekers, to discriminate between asylum seekers based on their

unauthorised arrival, and to return unlawful entrants to countries of

origin, are out of step with international norms in comparable countries

such as Denmark, Canada and the UK.

12. Meeting our

international obligations

SCA believes that there is no way in which Australia is able to meet its

international obligations under the CROC and other relevant international

instruments under the current policy framework.

SCA supports the

adoption of alternatives to detention, as proposed by other organisations

including the Refugee Council of Australia.

1. Save the Children

Save the Children

is the world's largest independent child development organisation, with

32 member countries and programs in over 100. Save the Children works

for:

  • a world which

    respects and values each child

  • a world which

    listens to children and learns

  • a world where

    all children have hope and opportunity

In addition to its

development programs, Save the Children plays a critical advocacy role

around the world. It lobbies governments and the international community

and members of civil society, highlighting failures in public policy and

private practice which represent violations of children's rights. For

agencies such as Save the Children, whose purpose is deeply rooted in

children's rights, this role is crucial. Save the Children has an obligation

to act as custodians of children's rights, sharing the responsibility

to fight for their recognition and defence.

Save the Children

Australia (SCA) has played a vital role in the advocacy of children's

rights in Australia. Recent work includes Children's Rights: Equal

Rights? [1], which examined discrimination and racism

in Australia, and Children's Rights Reality or Rhetoric? [2],

which reviewed progress towards meeting Australia's obligations set out

under the Convention on the Rights of the Child (CROC). Both documents

were part of wider international reports on these issues. Such work contributes

to the development of public policy which acknowledges and protects children's

rights in Australia.

The Human Rights

and Equal Opportunities Commission (HREOC) Inquiry into children in immigration

detention provides SCA with a valuable opportunity to examine the maintenance

and protection of children's rights in Australia with respect to this

vulnerable population. SCA welcomes this opportunity to make this contribution.

2. Children's

Rights

Although other international

obligations (outlined below) are also relevant to this issues facing children

seeking asylum, this paper will focus on The Convention on the Rights

of the Child (CROC) because of Save the Children's intrinsic connection

to the development and monitoring of Convention.

The idea of a formal

expression of children's rights which can be used to harness political

and public commitment to improving the lives of children is fundamental

to Save the Children's work. Save the Children was instrumental in drafting

the Convention. The involvement of civil society not only improved the

content of the Convention but also generated an unprecedented level of

commitment to making it work.

All but two countries

have ratified the CROC, making it the most accepted international treaty.

The CROC incorporates the whole spectrum of human rights - civil, political,

economic, social and cultural - and sets out the specific ways in which

these should be made available to children. These rights include:

  • civil rights and

    freedoms,

  • the right to a

    name and nationality,

  • the right to live

    with parents, to be re-united if separated from them and to the provision

    of alternative care if necessary,

  • the right to basic

    health and welfare, to education, leisure and cultural activities, and

  • special protection

    measures to guarantee the rights of refugee children, those caught up

    in armed conflicts, children in the juvenile justice system and those

    suffering economic, sexual or other exploitation.

At first glance,

the Convention is notable for the 41 individual articles that contain

a great deal of detail on a variety of specific children's rights. But

the CROC does have a broader vision. Children are seen as full human beings,

rights-holders who can play an active part in the enjoyment of their rights.

They are not - as they have often been presented in the past - mere dependents,

the property of their parents. They are not to be seen merely as victims,

workers, young offenders, pupils or consumers, but as complex and fully

rounded human beings.

Society has obligation

towards the children within it. The standards set out are those that any

decent society concerned for the well-being and happiness of its children

might want to attain. Those standards correspond to fundamental values,

such as a belief in human dignity, tolerance, equality, peace and freedom.

There is no place for discrimination against children, nor for their exploitation

or abuse. No child should live in poverty. A child's development should

be nurtured and encouraged through education, health and other services

to give it the best possible start in life. In times of war and civil

unrest, children should be given special protection.

The Convention is

available at http://www.unicef.org/crc/fulltext.html

The Relationship

between the CROC and the Refugee Convention

The CROC effectively incorporates the rights set out in the Refugee Convention.

Article 22 of the CROC provides that State Parties must ensure child asylum

seekers "receive appropriate protection and humanitarian assistance

in the enjoyment of applicable rights set forth … in other international

human rights or humanitarian instruments to which the said States are

Parties" [3] . As Australia is a State Party to

the Refugee Convention, it is obliged to ensure the rights outlined in

its provisions are afforded to child asylum seekers under both the Refugee

Convention and the CROC by virtue of article 22.

3. Failure to incorporate international instruments into

Australian law

SCA sees the failure

to incorporate international treaties into Australian law and regulations

as a serious shortcoming in the application of rights to children in immigration

detention.

Since the end of

the Second World War, the international community has joined forces to

develop a set of treaties that guide the actions of States in relation

to the protection of their citizens and others in their jurisdiction.

These treaties include:

  • the International

    Covenant on Civil and Political Rights (ICCPR);

  • the International

    Covenant on Economic, Social and Cultural Rights (ICESCR);

  • the Convention

    on the Rights of the Child (CROC);

  • the Convention

    on the Elimination of Discrimination Against Women (CEDAW);

  • the Convention

    Against Torture (CAT);

  • two Conventions

    Against Statelessness;

  • the various guidelines

    published by the United Nations High Commission for Refugees (UNHCR),

    including the Guidelines on the Detention of Asylum Seekers (1995) and

    the Executive Committee of UNHCR's Conclusion No 44, Detention of Refugees

    and Asylum Seekers (1986)

  • the 1951 Convention

    Relating to the Status of Refugees and its 1967 Protocol.

Australia was one

of the countries behind the drafting of these treaties. It has also acceded

to each. Such accession leads to an expectation that Australia will incorporate

the treaty obligations in some form of domestic legislation or ensure

their reflection in a bill of rights. SCA believes that the fact that

this has not yet been done is a major weakness in Australia's refugee

policy.

Australia, as a key

regional player, should have an important role to play promoting and protecting

refugee rights in the Asia-Pacific region, including promoting accession

to the 1951 Convention and the other human rights treaties. It is to be

noted that many countries in our region are not signatories to the Refugee

Convention, including those which have recently taken in and processed

asylum seekers diverted en route to Australia. The absence of a clearly

defined human rights framework in this country, in our opinion, impedes

Australia's ability to perform this important regional function.

4. Australia's

non-refoulement obligations

SCA is concerned

that Australia is in breach of its obligations not to return asylum seekers

to a country where they would be at risk through its policy of screening

asylum seekers upon arrival and of attempting to turn back vessels which

seek to enter Australian territory.

Australia has undertaken

not to send back people to a country where they would be at risk of serious

human rights violations (refoulement). These risks are defined by the

Refugee Convention (Article 33) and in Articles 1 and 3 of the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(Convention against Torture) to which Australia is a party.

Referring to the

Refugee Convention, Australian law defines refugees as people who

  • are outside their

    country of nationality or usual country of residence, and

  • are unable or

    unwilling to return to or to seek the protection of that country because

    of well-founded fear of being persecuted for reasons of race, religion,

    nationality, membership of a particular social group or political opinion.

The Refugee Convention

prohibits "[the expulsion] or return [of] a refugee in any manner

whatsoever to the frontiers of territories where his life or freedom would

be threatened on account of his race, nationality, membership of a particular

social group or political opinion" (Article 33.1).

Article 3.1 of the

Convention against Torture prohibits the return of people to another country

where they might face torture or ill treatment:

"No State

Party shall expel, return or extradite a person to another State where

there are substantial grounds for believing that he would be in danger

of being subjected to torture."

The convention specifically

allows for a wide interpretation of the term torture to include acts of

cruel, inhuman or degrading treatment or punishment (Article 1.2, Article16).

In its February 1998

report, the Australian National Audit Office warns that

"[t]here

is a risk ... that the screening process will be perceived as a de facto

refugee determination system which lacks the important features of the

actual refugee determination system such as the provision of assistance

to the applicant and the availability of administrative and judicial

review ".[4]

Concerns have been

raised [5] that there are risks inherent to the current

screening process, that unrecognised refugees may be returned without

having been given a fair opportunity to make a protection claim. SCA shares

these concerns.

5. Unlawful

Entry

1. States Parties

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

to each child within their jurisdiction without discrimination of any

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

race, colour, sex, language, religion, political or other opinion, national,

ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that

the child is protected against all forms of discrimination or punishment

on the basis of the status, activities, expressed opinions, or beliefs

of the child's parents, legal guardians, or family members.

Article 2, Convention

on the Rights of the Child.

SCA believes that

Australia is in breach of article 2 of the Convention on the grounds of

its different treatment of child asylum seekers arriving without visas

and children who arrive on a visa and subsequently seek asylum, as a result

of its policy of detention of unauthorised arrivals.

SCA is concerned

about the treatment of rejected child asylum seekers and other children

in immigration detention and the extent to which their rights under Articles

2 and 3 of the Convention in particular are respected.

The non-discrimination

principle outlined in article 2 of the Convention prohibits discrimination

on the grounds of status, including immigration status. Every child in

Australia is entitled to all of the rights under the Convention without

discrimination.

The current system

allows for up to 12,000 people per year to be granted asylum. This includes

those who apply from overseas (off-shore applicants) and those who apply

once arrived in Australian territory (on-shore applicants). Those who

arrive in Australia unlawfully (ie, without authority to do so, such as

a visa) are normally placed in detention [6]. The Government

assumes that people will claim asylum within 45 days of arrival in Australia

and certain rights to financial and legal assistance are not afforded

to those who lodge claims after this period. Although not all children

who arrive and claim asylum are placed in detention, this is the normal

outcome of the current regime.

Many asylum-seekers

are able to obtain a passport and to enter Australia on proper travel

documents. Many others are forced to flee their homes at very short notice.

They cannot always be expected to risk travelling to a capital city to

obtain passports from the authorities and foreign embassy visas. Often,

they go to extreme lengths in order to seek protection in another country

and to prevent the authorities from their home country from identifying

them.

Under the screening

process introduced by the Australian authorities, any undocumented asylum-seekers

are interviewed on arrival. During this interview, asylum-seekers are

asked to identify themselves, present any identifying documents and to

explain how they arrived and by what route. They are asked why they came

to Australia and whether there is anything they wish to advise the authorities

about their countries of origin. It is important to note that they are

not asked specifically whether they wish to apply for refugee status,

seek protection from human rights violations or whether they wish to see

a lawyer. The summary of this interview is relayed orally to a senior

DIMIA official who will assess whether the answers, in that official's

view, are sufficient to engage Australia's protection obligations.

If the senior DIMIA

official accepts that there is a desire to seek asylum, the person concerned

is immediately detained. In effect, he or she is being detained for not

having proper documents. If, however, the senior DIMIA official deems,

on the basis of the information relayed orally, that the person does not

engage Australia's protection obligations, that person is liable to immediate

removal from the country.

Concerns have also

been raised that that mandatory detention, particularly continuing detention

beyond a reasonable time, may have the effect of impeding the proper presentation

of asylum claims and deter asylum-seekers from seeking protection in Australia

[7]. This situation could see genuine refugees not claiming

asylum from lack of knowledge of the legal process in this country and

lack of access to UNHCR officials or legal assistance

After status determination

Detained children whose asylum claims have been rejected or children who

did not claim asylum but who are detained on visa grounds are still covered

by the Convention's provisions while they remain in Australia. The Committee

on the Rights of the Child has clarified that articles 2 and 3 of the

Convention require that these children must enjoy all the rights enshrined

in the Convention regardless of current status:

The Committee is concerned about the application of the law and policy

concerning children seeking asylum, including unaccompanied children.

It is particularly concerned that unaccompanied minors who have had

their asylum request rejected, but who can remain in the country until

they are 18 years old, may be deprived of an identity and denied the

full enjoyment of their rights, including health care and education.

Such a situation, in the view of the Committee, raises concern as to

its compatibility with articles 2 and 3 of the Convention .[8]

6. Temporary

Protection Visas

SCA believes that

the issuing of Temporary Protection Visas is a breach of CROC Articles

2, 3, 6, 7, 9, 10, 12, 22, and 26. and should be abolished in favour of

Protection Visas.

The discrimination

issue arises in relation to the different status that may be granted to

child asylum seekers depending on their mode of arrival in Australia.

Child asylum seekers who arrive without authorisation and are detained

may only receive a three-year Temporary Protection Permit when granted

asylum, whereas those who arrive with authorisation and are subsequently

recognised as a refugee receive permanent residency. The different legal

status deriving from these refugee visas translates into different rights

and benefits for children.

  • The current system

    discriminates between refugees who have arrived under the official government

    program - who are granted permanent residency and may bring their families

    into Australia and access settlement services, English language training

    and mainstream social security services including Newstart (dole) -

    and refugees who arrive by unauthorised means to whom it grants a three

    year Temporary Visa Permit under which they are ineligible for any of

    the above services.

  • Holders of temporary

    protection visas must reapply for asylum after their visa expires. That

    is, they must prove that their fear of persecution (as defined under

    the Act) is ongoing.

  • Under the Temporary

    Visa Permit neither the spouse nor dependent children of refugees are

    permitted to join them in Australia.

7. The

best interests of the child (article 3)

"In all

actions concerning children, whether undertaken by public or private

social welfare institutions, courts of law, administrative authorities

or legislative bodies, the best interests of the child shall be a primary

consideration."

Article 3(1), Convention

on the Rights of the Child.

SCA believes that

the detention of child asylum seekers, either with their families, or

unaccompanied, is not in the "best interests" of the child.

We assert that current "legislative, administrative and other measures"

(article 4) do not adequately take the "best interests of the child"

into account.

The requirement in

article 3 of the Convention that the best interests of the child be given

"primary consideration" is a fundamental principle reflected

in the various provisions of the Convention.

Upholding the "best

interests" principle requires examination of government policy formulation

and individual decision-making regarding children. Article 3(1) does not

require the best interests of the child to be the sole consideration in

all decision-making, but it does require the child's interests to be the

subject of active consideration, with evidence that children's interests

have been taken into account as a primary consideration.

The principle of

the "best interests of the child" in article 3(1) is fundamental

to understanding Australia's obligation to implement the rights in the

Convention for all children. The "best interests" principle

should be used by all decision-makers, including service providers in

detention facilities, and be written into legislation in a way in which

it can be invoked before the courts.

8. The right

to family life (article 5)

States Parties

shall respect the responsibilities, rights and duties of parents or,

where applicable, the members of the extended family or community as

provided for by local custom, legal guardians or other persons legally

responsible for the child, to provide, in a manner consistent with the

evolving capacities of the child, appropriate direction and guidance

in the exercise by the child of the rights recognized in the present

Convention.

Article 5, Convention

on the Rights of the Child.

The Convention

n the Rights of the child, when read with other relevant treaties, indicates

that alternatives to detention should be sought which allow children to

remain with their parents, with detention as a last resort. As this is

not the case at present, SCA believes that Australia is in breach of Article

5 of the Convention.

Under the Convention,

all children are entitled to grow up in a healthy family environment,

with parents or legal guardians of child asylum seekers having the primary

responsibilities for the upbringing of their children. Australia is also

obliged to ensure that unaccompanied children receive appropriate alternative

care and guardianship arrangements.

Article 37(b) of

the Convention provides that children should only be detained as a last

resort and for the shortest appropriate period of time. The provisions

of article 37(b), read with the child's right to family life, would indicate

that alternatives to the detention of children which involve the child

remaining with her or his parents out of detention should be considered

as a first resort by Australia, with detention as a last resort.

Article 37 is discussed

more fully later in this paper.

9. Deprivation

of liberty

Article 37 focusses

specifically on deprivation of liberty and is worth more detailed assessment

here. It states that

"States Parties shall ensure that:

...

"(b) No child shall be deprived of his or her liberty unlawfully

or arbitrarily. The arrest, detention or imprisonment of a child shall

be in conformity with the law and shall be used only as a measure of

last resort and for the shortest appropriate period of time;

...

"(d) Every child deprived of his or her liberty shall have the

right to prompt access to legal and other appropriate assistance, as

well as the right to challenge the legality of the deprivation of his

or her liberty before a court or other competent, independent and impartial

authority, and to a prompt decision on any such action."

The provisions

of article 37 are reiterated in relevant UNHCR guidelines on refugee

children.

"In accordance with the general principle stated at Guideline

2 and the UNHCR Guidelines on Refugee Children, minors who are asylum

seekers should not be detained…"

UNHCR, Revised Guidelines on applicable Criteria and Standards Relating

to the Detention of Asylum-Seekers, (UNHCR Guidelines on Detention)

Introduction, Guideline 6 (1999) (emphasis retained).

Unfortunately

refugee children are sometimes detained or threatened with detention

because of their own, or their parents', illegal entry into a country

of asylum. Because detention can be very harmful to refugee children,

it must be 'used as a measure of last resort and for the shortest appropriate

period of time',

UNHCR Refugee Children: Guidelines on Protection and Care (UNHCR Guidelines

on Protection and Care), (1994) chapter 7.

SCA believes that

the current policy represents a systemic breach of Article 37 of the CROC.

Detention of child asylum seekers is currently not a measure of last resort,

it is not for the shortest appropriate time, alternatives are not given

adequate consideration, it is not necessary or proportionate, and the

right to challenge detention is merely formal.

An exercise of

the powers under section 245(9) of clause 8 of the Border Protection Bill

involves Australia further breaching its obligations under article 37(b)

of CROC.

9.1 Detention

as a measure of last resort and for the shortest appropriate period of

time (article 37(b))

Any decision to detain a child asylum seeker must be made subject to the

provision of the Convention that the detention be in conformity with the

law, a measure of last resort and for the shortest appropriate period

of time. The provisions of article 37(b) are repeated throughout relevant

UN standards on children. For example, the United Nations Rules for

the Protection of Juveniles Deprived of their Liberty (1990) states

that detention "should be used as a last resort" and "be

limited to exceptional cases. [9]" The United Nations

Standard Minimum Rules for the Administration of Juvenile Justice (the

Beijing Rules) (1985) reiterate that any detention should be brief [10]

and state this should only occur where the child has committed "a

serious act involving violence". [11]

9.2 Alternatives

to detention

The Committee on the Rights of the Child has emphasised the importance

of States finding alternatives to the detention of children [12]

For example, in relation to child asylum seekers whose claims were

rejected it has stated:

[T]he Committee is seriously concerned about legislation which permits

the detention of asylum-seeking children pending deportation. The Committee

urges the State party [Austria] to reconsider the practice of detaining

asylum-seeking children, and that such children be treated in accordance

with the best interests of the child ... [13]

The UNHCR also recommends

alternatives to detention for children and their families [14].

Australian law mandates

the detention of unauthorised child and adult asylum seekers [15].

The requirements that detention be the " last resort and for the

shortest appropriate period of time" (article 37(b)), is not reflected

in Australian law. It is widely accepted that it is not clear from international

law exactly what "the shortest appropriate period of time" for

detention. However, non-custodial measures should be investigated before

custodial measures. For these reasons, SCA believes that Australia is

in breach of Article 37(b).

Under bridging visa

requirements, child asylum seekers cannot be released from immigration

detention unless a State or Territory child welfare authority certifies

that a release from detention is in the child's best interests and the

Minister is satisfied that appropriate arrangements have been made for

the care and welfare of the child outside of detention [16].

As it is usually in a child's best interests to remain with her or his

family, and there is no provision for release of families from detention,

children are rarely granted bridging visas. SCA therefore believes that

current alternatives to detention, such as bridging visas, do not comply

with Article 37(b).

9.3 Necessity

The Human Rights Committee has found that detention of asylum seekers

may be arbitrary if it is not necessary and proportionate [17].

The UNHCR has stated

in ExCom Conclusion 44 [18] [that, because of the hardship

it causes, detention of asylum seekers should be avoided. If necessary,

UNHCR states that detention may only be resorted to in four cases:

  • to verify identity
  • to establish the

    elements of a refugee status or asylum claim

  • to deal with cases

    where refugees or asylum-seekers have destroyed or falsified their travel

    and/or identity documents to mislead authorities or

  • to protect national

    security or public order [19].

The UNHCR also states

that the right to liberty is a fundamental right and that therefore 'the

detention of asylum-seekers is in the view of UNHCR inherently undesirable'

[20]. Guidelines on Detention assert that there should

be a presumption against detention and that the only permissible exceptions

to this presumption are the four grounds provided in ExCom Conclusion

44. Detention of asylum seekers for any other purpose, 'for example, as

part of a policy to deter future asylum-seekers, or to dissuade those

who have commenced their claims from pursuing them, is contrary to the

norms of refugee law' [21]

In relation to children,

the Guidelines on Detention clearly stipulate that child asylum seekers

should not be detained [22]. If detention is considered,

those Guidelines provide that all alternatives to detention should first

be explored. If a child is detained, detention should be for the shortest

period of time and in accordance with the above four exceptions in ExCom

Conclusion 44.

Detention of child

asylum seekers will be arbitrary where it is not necessary in the circumstances

of a particular case. Detention may not be considered necessary outside

of the four exceptions contained in ExCom Conclusion 44 or where there

is an alternative to detention. SCA therefore believes that the detention

of child asylum seekers is in breach of article 37(b) of the Convention.

9.4 Proportionality

The Commission has found previously that Australia's detention policy

does not meet the minimum standards in ExCom 44 or the UNHCR Detention

Guidelines [23] and that it would be considered

arbitrary and unreasonable under article 9(1) ICCPR and article 37(b)

of the Convention .[24]

SCA therefore urges

the Government to expand the current alternatives to detention to include

all families with children and all unaccompanied children, except in the

circumstances permitted under ExCom Conclusion 44, in accordance with

Australia's international obligations.

9.5 Length of

detention

The permissible length of detention has not been definitively outlined

by the Human Rights Committee. However, the Committee has found violations

in a number of cases. The Human Rights Committee's comments in these cases

[25] raise questions about the validity of all but a

very brief period of detention in most cases.

While clear figures

on the length of detention for individual children are not available,

it is clear that the current policy allows children to be detained for

months, or even years, and that this has occurred in recent times. SCA

believes that this is in breach of Australia's international obligations

under Article 37.

9.6 Right to challenge

detention

Judicial oversight of all forms of detention is a fundamental guarantee

of liberty and freedom from arbitrariness. Without judicial oversight,

administrative detention may be indeterminate, being decided on grounds

of administrative or other convenience.

Article 37(d) of

the Convention mirrors article 9(4) of the ICCPR which provides:

Anyone who is

deprived of his liberty by arrest or detention shall be entitled to

take proceedings before a court, in order that that court may decide

without delay on the lawfulness of his detention and order his release

if the detention is not lawful.

The jurisprudence

of the Human Rights Committee assists in determining the scope of article

37(d). While both the Convention and ICCPR articles apply to all children

held in detention, including child asylum seekers, article 37(d) of the

Convention also provides the child with the right to "prompt access

to legal and other appropriate assistance [26]"

before a court or similar authority. Where a child does not have access

to legal and other assistance to challenge her or his detention, there

will be a violation of the Convention. [27]

Judicial review of

detention in Australia remains very limited. As child asylum seekers may

be lawfully detained under the Migration Act 1958, any legal challenge

to their detention will be "merely formal" and unable to succeed.

At present, there is no court in Australia in which child asylum seekers

can take proceedings to determine whether their detention is arbitrary

and therefore in contravention of the Convention and/or the ICCPR. Accordingly,

SCA believes that Australia is in breach of article 37(d) of the Convention

and article 9(4) of the ICCPR.

9.7 Processing

of unlawful child entrants into Australia

The provisions under Clause 8 of the Border Protection Bill also raise

issues under the Article 37(b) of the CROC. Section 245(9) appears to

contemplate that any child aboard a detained boat or aircraft may be taken

into detention without expressly requiring consideration of alternatives

to detention for those persons; or separate consideration of the human

rights of those persons.

10.

Unaccompanied children -Article 20

An unaccompanied

child seeking asylum must be afforded 'special protection and assistance'

by the government (Article 20).

SCA is concerned

that the treatment afforded to unaccompanied children upon arrival, in

the processing of their claims for asylum and their ongoing detention

as a result of an unsuccessful claim for asylum constitute a breach of

Article 20 of the Convention.

SCA believes that this situation is unsustainable. Guardianship for unaccompanied

children in immigration detention should be the responsibility of an independent,

properly resourced authority, whether State or Federal, which can advocate

for the best interests of the child. This would bring Australia into line

with current overseas practice.

10.1 Assessment

By contrast with child asylum seekers who arrive or are reunited with

their parents, unaccompanied children do not have the support of their

family in making an asylum claim and thus need special assistance.

Unaccompanied children

are defined as those children who are separated from their parents and

are not being cared for by an adult who by law or custom has responsibility

for the child [28]. Where adults are caring for the

child, or relatives of the child reside in the country of asylum, the

child should ordinarily stay with those carers for the duration of her

or his asylum claim [29].

Otherwise, special

procedures, including specially trained persons, should identify unaccompanied

children on arrival at a port of entry or where they have been residing

in the country for some time [30]. Care should be taken

in confirming whether the child is an asylum seeker or not. Whereas the

child's parents or guardian can often confirm that a child is indeed an

asylum seeker, it may be necessary to presume that an unaccompanied child

who arrives in Australia is an asylum seeker. As UNHCR notes:

Children often

do not leave their country of origin on their own initiative. They are

generally sent out by their parents or principal caregivers. 'If there

is reason to believe that the parents wish their child to be outside

the country of origin on grounds of their own well-founded fear of persecution,

the child him/ herself may be presumed to have such a fear' .[31]

10.2 Guardianship

of unaccompanied children

"The guardian

or adviser should have the necessary expertise in the field of childcaring

so as to ensure that the interests of the child are safeguarded, and

that the child's legal, social, medical and psychological needs are

appropriately covered during the refugee status determination procedures

and until a durable solution for the child has been identified and implemented.

To this end, the guardian or adviser would act as a link between the

child and existing specialist agencies/ individuals who would provide

the continuum of care required by the child."

UNHCR Guidelines

on Unaccompanied Children. [32]

The UNHCR recommends

that an independent and formally accredited organisation appoint a guardian

or adviser as soon as the unaccompanied child is identified [33].

The guardian/adviser would be charged with ensuring that the best interests

of the child are respected throughout the status determination procedure

and in all care and welfare decisions concerning the child.

The newly-appointed

guardian should ensure the child's well being by advocating and liaising

with appropriate agencies, such as in the fields of welfare, health and

education. Where the child is detained, the guardian must guarantee the

child's well being and where necessary, challenge the child's detention

before a court or similar authority (article 37(d)) [34].

Insofar as article 20 of the Convention provides that children deprived

of their family environment are "entitled to special protection and

assistance" and must be provided with alternative care, preferably

family based where there are no family members to care for them, the child's

guardian could be required to advocate for and ensure such protection

and assistance are received.

Currently, unaccompanied children in immigration detention are formally

wards of the Minister for Immigration, through DIMIA. This situation creates

possible and perceived conflicts of interest between DIMIA's role in detaining

and processing unaccompanied child asylum seekers and its role in acting

'in the best interests of the child'.

In Denmark, by contrast,

dedicated asylum centres have been established for unaccompanied children

as this vulnerable group requires special care. These centres have far

more staff and better resources than ordinary centres to provide these

children with enhanced educational and leisure opportunities. [35]

11. Comparisons

with overseas practice

SCA believes that

the current Australian law and regulations to detain asylum seekers, to

discriminate between asylum seekers based on their unauthorised arrival,

and to return unlawful entrants to countries of origin are out of step

with international norms.

Displacement is a

global issue, and the numbers of people seeking asylum in developed countries

round the world has grown dramatically over recent years. Australia is

not immune from the global problem. The US Committee for Refugees latest

annual figures are for 2000. They show:

Canada

At the end of 2000, Canada hosted some 54,400 refugees and asylum seekers

in need of protection. These included individuals in 30,177 pending asylum

cases, 13,990 who received refugee status during the year, and 10,236

refugees resettled from abroad during the year.

Canada received a

record number of asylum seekers, 36,534, in 2000. During the year, 34,253

claims were referred to Canada's Immigration and Refugee Board (IRB).

Canadian authorities decided 24,124 refugee claims, recognising applicants

in 13,990 cases as refugees, a 57 percent approval rate (in 1999, the

approval rate was 58 percent). Another 4,685 cases were either abandoned

or otherwise concluded. The Canadian government reports the approval rate

at 49 percent of all applications referred during the year to the IRB,

up slightly from 46.3 percent in 1998. [36]

In 2000, the leading

source countries for refugee claims in Canada were Pakistan (3,111), Sri

Lanka (2,906), and Hungary (2,304). China, Argentina, Mexico, and Colombia

were the next largest source countries, with 1,000 to 2,000 applications

for each country.

Denmark

At the end of 2000, Denmark hosted about 10,300 refugees and asylum seekers

in need of protection. These included 1,332 persons granted refugee status

under the UN Refugee Convention, 2,530 issued de facto refugee status,

31 granted permission to stay on humanitarian grounds, 379 granted residence

permits for other "exceptional reasons," some 345 with temporary

protection, 464 resettled "quota" refugees, and about 5,200

asylum applicants awaiting a decision on pending claims. [37]

UK

At the end of 2000, refugees and asylum seekers in about 87,800 cases

were in need of protection in the United Kingdom. These included 66,195

cases awaiting an initial decision, 11,365 granted humanitarian status

based on their asylum claims, and 10,186 cases granted asylum during the

year.

Some 76,040 persons

(excluding dependents) applied for asylum in 2000, the highest number

of annual applications ever in the United Kingdom and more than in any

other Western European country during the year. The 66,195 applications

pending an initial decision at year's end represent a 36 percent decrease

from the 1999 backlog of 102,870.

The largest number

of asylum seekers who filed applications in the United Kingdom in 2000

arrived from Iraq (7,080), Sri Lanka (6,040), Yugoslavia (5,695), Afghanistan

(5,230), Iran (5,170), Somalia (4,795), and the former Soviet Union (4,140).

[38]

11.1 Detention

of asylum seekers

Canada

Although some asylum seekers are held in detention, asylum seekers are

generally not detained. Canada provides asylum seekers with a variety

of social services, including income support and health services. Asylum

seekers are also authorized to work while their claims are pending. [39]

Denmark

Since 1995 Danish law has permitted the authorities to detain asylum seekers

whose applications are, or are expected to be, placed in the manifestly

unfounded category. For these people the Denmark Immigration Service (DIS)

may exercise an accelerated procedure, and they may be denied the opportunity

to appeal. During 2000, the DIS considered 780 applications to be manifestly

unfounded [40].

UK

In April 2000, sweeping changes in the support and housing of asylum seekers

in the United Kingdom came into effect, under the Immigration and Asylum

Act (1999).

A new "processing

centre" in Oakington, Cambridge opened in March 2000 to process people

quickly who had asylum claims the government deemed to be "manifestly

unfounded." Asylum applicants in the "semi-secure" centre

receive decisions on their applications within seven days of arriving.

The centre processed about 400 applicants per week during 2000. [41]

11.2 On-shore

versus off-shore claimants

Australia's policy stands in contrast to those outlined here. None of

Canada, the UK or Denmark distiguishes as clearly as Australia between

asylum seekers who apply from overseas (off-shore) and those who claim

asylum once arrived in the country. None of these countries has a policy

of routine detention for unlawful arrivals who claim asylum.

11.3 Return

of asylum seekers upon arrival

Under Danish law, the authorities may refuse to admit asylum seekers who

arrive at the borders without valid travel documents if they come from

a "safe third country." Denmark does not maintain an official

list of safe third countries. In practice, the authorities consider the

United States, Canada, Norway, Switzerland, Poland, and to some extent,

Hungary as such [42].

For the UK, Asylum

applicants who have travelled through a European Union (EU) country, Canada,

the United States, Switzerland, or Norway may be refused entry and removed

from the United Kingdom without having their claims considered at all

[43].

The Government has

argued that the recently introduced provisions to expel asylum seekers

from Australia are in line with those of other countries. It is clear

that practice in Denmark and the UK is to return asylum seekers who have

passed through another country that has undertaken to take refugees, while

Australia is removing people upon arrival in Australian territory to countries

which are not party to resettlement programs.

12.

How can Australia best meet its obligations under the CROC in respect

to children seeking asylum?

SCA believes that

there is no way in which Australia is able to meet its international obligations

under the CROC and other relevant international instruments under the

current policy framework.

SCA supports the

adoption of alternatives to detention, as proposed by other organisations

including the Refugee Council of Australia.

The Government has

argued that:

1. detention of asylum seekers is not mandatory - unauthorised entrants

are detained;

2. families should not be separated;

3. it is meeting its obligations towards children in detention by the

provision of health, education, cultural and other services.

These points deserve consideration.

1. While it is important

to acknowledge that not all on-shore child applicants for asylum are in

detention, it is clear that detention is the norm for this population.

Also, this fact that not all of these children are in detention does not

offer protection of rights to those that are, and it is these cases that

clearly breach the CROC.

2. It is usually

in the best interests of a child to remain in a family environment with

familiar caregivers. If Australia is to meet its obligation to the CROC

then any family group containing a child who has applied for asylum should

be released from detention. Maintenance of familial relationships does

not justify the detention of children. In addition, it has been argued

that placing children in situations of familial stress, such as detention,

has resulted in the occurrence of physical and psychological illnesses.

[44]

3. Other organisations

have acknowledged the significant improvements in the treatment of asylum

seekers in detention in Australia [45]. SCA also acknowledges

this to be true. However, improvements to living conditions of children

in detention do not alter their status as detainees, and therefore does

not alter the significant and systematic breach of the CROC. Rights conferred

under the CROC are not divisable - it is not possible to argue that meeting

many, or most, of the Articles in the CROC allows a country to avoid responsibility

for the remaining Articles.

12.1 Alternatives

to Detention

Other organisations have developed an alternative to detention of asylum

seekers. The following model is taken from the Refugee Council of Australia

[46]. In brief, the alternative model provides a legislative

and regulatory framework for a more flexible detention regime. The model

has been endorsed by a range of civil society organisations. More detail

on the model can be obtained from http://www.refugeecouncil.org.au/alternative1.htm

Under this model

restrictions of the current type on the liberty of Protection Visa applicants

should be kept to a minimum, usually to less than 90 days. After the initial

period in closed detention, most applicants would pass on to a more liberal

regime; one that is most appropriate to the individual's circumstances.

Regular review of each applicant's detention status is recommended to

ensure the restriction placed on individuals are appropriate for their

circumstances. Finally, a review process is recommended to establish an

ongoing process leading to a higher level of equity in the case management

of each applicant.

The alternative model

proposes a three-stage regime. The stages represent a progression ranging

from severe restrictions on personal liberty to increasingly liberal provisions.

The three stages

of detention are:

  • i) Closed detention:

    this represents the most severe form of detention. All applicants who

    have not been immigration cleared would be initially held in closed

    detention. During this initial period, the applicant's identity and

    circumstances would be established to the point where a decision can

    be made about the form of detention that is most appropriate. It is

    envisaged that most applicants would be moved to one of the two more

    liberal detention regimes within 90 days of arrival in Australia. Closed

    detention would be under the control of the Department of Immigration

    and Multicultural and Indigenous Affairs (DIMIA).

  • (ii) Open detention:

    this represents an intermediate regime. It would facilitate those applicants

    who were considered to be unsuitable for community release, either because

    this was judged not to be in the interests of the community or, not

    to be in the best interests of the applicant. Freedom of movement would

    be restricted by curfew requirements. Residential facilities would be

    maintained and regulated by DIMA.

  • iii) Community

    Release: this represents the most liberal regime within the detention

    model. DIMA would not be responsible for the accommodation and welfare

    of the applicants. Under some forms of community release, family members

    or community organisations should undertake some responsibilities for

    the applicant. Restriction on personal liberty would be limited to residing

    at a designated address and reporting requirements.

Advantages:

The alternative detention model offers a range of advantages by providing:

  • A more humane

    regime, which reduces individual suffering and hardship by providing

    for alternative detention mechanisms which can be respond to individual

    needs.

  • Greater flexibility,

    by being able to move applicants from one detention stage to another

    as their circumstances change.

  • Enhanced equity,

    by reducing the present disparities in treatment between those applicants

    who are authorised entrants and those who are not

  • Reduced Costs:

    Financial savings can be achieved by the significantly reduced use of

    closed detention which is the most costly regime.

  • Political costs

    would be reduced. The alternative model addresses community concerns

    thus rendering detention a less divisive issue.

  • Closer harmony

    with international guidelines, as the model would bring detention practice

    in Australia into consistency with international treaties.

1. Children's

Rights: Equal Rights? Diversity, Difference and Discrimination , (2000),

Save the Children, London.

2. Children's Rights Reality or Rhetoric? The UN Convention

on the Rights of the Child: The First 10 Years, (2001), Save the Children,

London.

3. Article 22(1) of the Convention provides: "States

Parties shall take appropriate measures to ensure that a child who is

seeking refugee status or who is considered a refugee in accordance with

applicable international or domestic law and procedures shall, whether

unaccompanied or accompanied by his or her parents or by any other person,

receive appropriate protection and humanitarian assistance in the enjoyment

of applicable rights set forth in the present Convention and in other

international human rights or humanitarian instruments to which the said

States are Parties."

4. Australian National Audit Office, The Management of

Boat People: Performance Audit, tabled 18 February 1998, section 6.38.

5. Amnesty International (Australia), A Continuing Shame:

The mandatory detention of asylum seekers, available from http://www.amnesty.org.au/whatshappenning/refugees/index-16.html#2

6. Department of Immigration and multicultural and Indigenous

Affairs, Fact Sheet: Immigration Detention, available from http://www.immi.gov.au/illegals/uad/03.htm#10

7. ibid.

8. Committee on the Rights of the Child, Concluding Observations

of the Committee on the Rights of the Child : Belgium, UN Doc CRC/C/15/Add.38,

20 June 1995, para 9. See also the Committee's comments to Denmark: "The

Committee notes that all children who have had their asylum requests rejected

but who remain in the country have had their rights to health care and

education provided de facto but not de jure. It is the view of the Committee

that this situation is not fully compatible with the provisions and principles

of articles 2 and 3 of the Convention", Concluding Observations of

the Committee on the Rights of the Child : Denmark, UN Doc CRC/C/15/Add.33,

15 Feb 1995, para 14.

9. See too the comments to Finland: "It also encourages

the State party to consider measures through which asylum-seeking and

refugee children can be granted equal access to the same standard of services,

in particular education, irrespective of who they are and where they live."

Concluding Observations of the Committee on the Rights of the Child :

Finland, UN Doc CRC/C/15/Add.132, 16 Feb 2000, para 52.

10. Rules 1 and 2, United Nations Rules for the Protection

of Juveniles Deprived of their Liberty. Rule 2 provides "[d]eprivation

of the liberty of a juvenile should be a disposition of last resort and

for the minimum necessary period and should be limited to exceptional

cases. The length of the sanction should be determined by the judicial

authority, without precluding the possibility of his or her early release".

11. Rule 17(b) of the United Nations Standard Minimum

Rules for the Administration of Juvenile Justice (The Beijing Rules) provides:

"Restrictions on the personal liberty of the juvenile shall be imposed

only after careful consideration and shall be limited to the possible

minimum".

12. Rule 17(c), Beijing Rules, provides that "Deprivation

of personal liberty shall not be imposed unless the juvenile is adjudicated

of a serious act involving violence against another person or of persistence

in committing other serious offences and unless there is no other appropriate

response".

13. For example, considering Sweden's Initial Report,

the Committee observed: "The Committee also suggests that consideration

be given to providing alternatives to the incarceration of children under

the Aliens Act and that a public defence counsel be appointed for children

in conflict with the law." Committee on the Rights of the Child (CRC),

Concluding Observations of the Committee on the Rights of the Child :

Sweden, UN Doc CRC/C/15/Add.2, 18 Feb 1993, para 12. In relation to child

asylum seekers, the Committee observed to Canada:

"Deprivation of liberty of children, particularly unaccompanied children,

for security or other purposes should only be used as a measure of last

resort in accordance with article 37 (b) of the Convention". CRC,

Concluding Observations of the Committee on the Rights of the Child :

Canada, UN Doc CRC/C/15/Add.37, 20 June 1995, para 24.

14. Emphasis retained. CRC, Concluding Observations on

the Committee on the Rights of the Child: Austria, UN Doc CRC/C/15/Add.98,

7 May 1999, para 27. See too the Committee on Canada: "the Committee

recommends that the Government address the situation of unaccompanied

children and children having been refused refugee status and awaiting

deportation in the light of the Convention's provisions. Deprivation of

liberty of children, particularly unaccompanied children, for security

or other purposes should only be used as a measure of last resort in accordance

with article 37 (b) of the Convention", CRC, Concluding Observations

of the Committee on the Rights of the Child: Canada, UN Doc CRC/C/15/Add.37,

20 July 1995, para 24.

15. "If refugee children are detained in airports,

immigration holding centres or prisons, they must not be held under prison-like

conditions. Special arrangements must be made for living quarters which

are suitable for children and their families. Strong efforts must be made

to have them released from detention and placed in other accommodation";

UNHCR Guidelines on Protection and Care, ch 7. See too Guideline 6, UNHCR

Guidelines on Detention.

16. All persons, including children, in the migration

zone without a valid visa must be kept in immigration detention until

granted a visa, removed or deported: s14 and s196(3), Migration Act 1958

(Cth). S196(3) provides that "[t]o avoid doubt… the release,

even by a court, of an unlawful non-citizen from detention (otherwise

than for removal or deportation)" is not permitted "unless the

non-citizen has been granted a visa."

17. Regulation 2.20, Migration Regulations 1994. See

HREOC (1998), Those who've come across the seas: Detention of unauthorised

arrivals, pp21-22.

18. For example, the Committee has found breaches of

Article 9 in circumstances where people have not been released after their

prison sentences have been fully served. See, for example, HRC, Weisman

and Perdomo v Uruguay, UN Doc UNHRC 8/1977.

19. UNHCR Executive Committee (EXCOM), Conclusion No.

44 (1986) - Detention of Refugees and Asylum-Seekers.

20. UNHCR Executive Committee (EXCOM), Conclusion No.

44 (1986) - Detention of Refugees and Asylum-Seekers at (b).

21. See UNHCR Guidelines on Detention, Introduction,

para 1.

22. Guideline 3, UNHCR Guidelines on Detention.

23. Guideline 6, UNHCR Guidelines on Detention.

24. The UNHCR detention guidelines referred to in HREOC

(1998), Those who've come across the seas: Detention of unauthorised arrivals

, p45 are the UNHCR (1985), Guidelines on Detention of Asylum Seekers,

which were the previous version of the 1999 UNHCR Guidelines on Detention

25. See HREOC (1998), Those who've come across the seas:

Detention of unauthorised arrivals, p53.

26. For example, "The Committee takes note with

concern that provisions in article 2, para. 24 (f) of the [Peruvian] Constitution,

which permits preventive detention for up to 15 days in cases of terrorism,

espionage and illicit drug trafficking, as well as Decree Law 25,475,

which authorizes extension of preventive detention in certain cases for

up to 15 days, raise serious issues with regard to article 9 of the Covenant."

HRC, Concluding Comments on Peru, UN Doc CCPR/C/79/Add. 67, 25 July1996,

para 18. Reference should also be made to the judgements of the European

Court of Human Rights under article 5 of the ECHR. In Amuur v France (cited

above), 20 days detention of Somali asylum seekers was found to breach

article 5(1), ECHR.

27. According to the Human Rights Committee "[t]he

important guarantee laid down in paragraph 4, i.e. the right to control

by a court of the legality of the detention, applies to all persons deprived

of their liberty by arrest or detention. Furthermore, States Parties have

in accordance with article 2(3) also to ensure that an effective remedy

is provided in other cases in which an individual claims to be deprived

of his liberty in violation of the covenant", HRC, General Comment

No. 8, para 1.

28. See the case of Berry v Jamaica, of the Human Rights

Committee, Communication No. 330/1988, 16 October 1992. The Committee

accepted the complainant's allegation "which remains unchallenged,

that throughout this period [detention of two and a half months], he had

no access to legal representation". In addition to violating Article

9(3) ICCPR, the Committee concluded: "that the author's right under

article 9, paragraph 4, was also violated, since he was not, in due time,

afforded the opportunity to obtain, on his own initiative, a decision

by a court on the lawfulness of his detention"; at para 11.1.

29. See UNHCR Guidelines on Unaccompanied Children, para

3.1. See also article 5 of the Convention which defines family broadly.

Unaccompanied children are entitled to "special protection and assistance

provided by the State" under article 20(1) of the Convention.

30. See UNHCR Guidelines on Unaccompanied Children, Annex

Two.

31. UNHCR Guidelines on Unaccompanied Children, paras

5.1-5.3.

32. UNHCR Guidelines on Unaccompanied Children, para

8.9, citing para 218 of the UNHCR Handbook.

33. UNHCR Guidelines on Unaccompanied Children, para

5.7.

34. UNHCR Guidelines on Unaccompanied Children, para

5.7.

35. UNHCR Guidelines on Unaccompanied Children, paras

6-7.

36. US Committee for Refugees (2001), Country Report

Denmark, available at http://refugees.org/world/countryrpt/europe/denmark.htm

37. US Committee for Refugees (2001), Country Report:

Canada, available at

38. http://refugees.org/world/countryrpt/amer_carib/canada.htm

39. US Committee for Refugees (2001), Country Report

Denmark, available at http://refugees.org/world/countryrpt/europe/denmark.htm

40. US Committee for Refugees (2001), Country Report

UK, available at http://refugees.org/world/countryrpt/europe/united_kingdom.htm

41. US Committee for Refugees (2001), Country Report:

Canada, op. cit.

42. US Committee for Refugees (2001), Country Report:

Denmark, op. cit.

43. US Committee for Refugees (2001), Country Report:

UK, op. cit.

44. US Committee for Refugees (2001), Country Report:

Denmark, op. cit.

45. US Committee for Refugees (2001), Country Report:

UK, op. cit.

46. Amnesty International (Australia) (2001), A Continuing

Shame: The mandatory detention of asylum-seekers, available at http://www.amnesty.org.au/whatshappening/refugees/index-16.html#2

47. Amnesty International (Australia), op. cit.

48. Refugee Council of Australia (2000), The Alternative

Detention Model, available at http://www.refugeecouncil.org.au/alternative1.htm

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Updated 9 January 2003.