Commission Website: National Inquiry into Children in Immigration Detention
here to return to the Submission Index
Submission to the National
Inquiry into Children in Immigration Detention from
the Castan Centre for Human
Rights Law, Monash University
Children and Asylum Seekers: a comparative study*
Detention,
Children and Asylum Seekers: a comparative study*
Overview
This paper contains
a comparison of the policies and procedures of Australia, the United Kingdom,
the United States and Canada for dealing with children as asylum seekers.
This comparison reveals two main differences.
- First, Australia
is unique in having a mandatory detention policy which applies to all
asylum seekers without distinction. Section 196 of the Migration
Act 1958 (Cth) mandates detention for all persons - child or adult
- arriving in Australia without a valid visa, and prevents release from
detention otherwise than for removal, deportation or because a valid
visa has been issued. The other countries do have some limited detention
practices which may include adults and children whose immigration to
those countries is unauthorised. But in all the other countries there
is a presumption that children are in a special category and should
be released into the community as soon as practicable. In all those
other countries, specific policies are being developed to recognise
the needs of child asylum seekers both in detention (if any) and upon
release.
- The second major
difference is in the nature of the problem. In Australia most children
in detention have come with their families and they include a substantial
number of very young children. The forced migration of whole families,
including children, to Australia is a recent phenomenon which is a direct
result of the temporary protection visa (TPV) regime which was introduced
in 1999.[1] As it does not allow family reunion it
has led to an increase in the number of families coming to Australia
to seek asylum. By contrast in the other countries efforts are concentrated
on a marked upsurge in unaccompanied or 'separated' child asylum seekers
who tend to be adolescents. There is a global trend to send the youngest
members of families away to give them a chance to survive in a new country
- often it is the case that the parents are no longer alive. Whilst
there is also an increase in such unaccompanied child asylum seekers
in Australia, the policies do not distinguish the needs of the two groups,
accompanied and unaccompanied child asylum seekers.
Australia
Current procedures
Each person whose
arrival in Australia is unauthorised is placed in mandatory and non-reviewable
detention, regardless of age. This includes children whether they are
part of a family or unaccompanied minors. Detention continues until such
time as the individual is either recognised as a refugee and granted a
protection visa or removed from the country. [2] Under
new legislation passed in September 2001, people arriving at 'excised
offshore places' are unable to apply for any valid visa and may be removed
to a "declared country", such a Papua New Guinea or Nauru. [3]
"Excised offshore places" include the Ashmore and Cartier Islands,
Christmas Island, Cocos (Keeling) Islands and ' other parts of Australia's
territory which may be prescribed in the future under the Migration
Act 1958 (Cth)." [4] Otherwise the legislation
provides for a hierarchy of temporary visas depending upon how entry to
Australia was effected: only those who come directly from the country
of persecution to Australia are entitled to a permanent protection visa.
In Australia there
has been an increase in the number of families coming to Australia as
a direct result of the introduction of the 3 year temporary protection
visa (TPV) in 1999 which does not allow family reunion. [6]
Treatment of children whose
arrival in Australia is unauthorised
The mandatory detention
policy of the Australian government does not distinguish between children
and adults. According to the Minister for Immigration [7]
as of 1 February 2002, 365 children were being held in Australian detention
facilities, 13 of whom were classified as unaccompanied minors. Expressed
as a percentage of onshore asylum seekers during this period (about 12,000)
this is 4.85%. The South Australian Department of Human Services, through
its Family and Youth Services division, provides alternative care for
a further 9 unaccompanied minors. In addition, one unaccompanied minor
has been issued with bridging visa and has been placed in foster care.
[8] As recently as November 2001, however, there were
582 children in immigration detention, 53 of whom were unaccompanied.
[9] The Minister for Immigration and Multicultural and
Indigenous Affairs, Philip Ruddock MP, attributes the decrease in numbers
of children in detention to: the drop in numbers of unauthorised arrivals;
an increase in people being released from detention, 'particularly unaccompanied
minors; and minors turning 18 years of age while in detention.' [10]
As a matter of policy,
the Government considers it is more important to keep children with family
members or people of the same nationality than it is to release them from
detention on a bridging visa into the community:
' it is in
the best interests of the child for them to remain with their parents,
family or fellow country persons. As such, children are held in detention
with their parents so that they can remain in family groups.' [11]
This policy is maintained
despite recent findings of the Human Rights and Equal Opportunity Commission
(HREOC) that ' detention is not an appropriate environment for children.'
Detention
The immigration detention
centres are run by Australasian Correctional Management (ACM), a private
company, and are monitored by the Department Immigration and Multicultural
and Indigenous Affairs (DIMIA) which maintains an official presence at
each of the centres. The standard of living conditions in immigration
detention centres and services provided to detainees are outlined in the
Immigration Detention Standards (IDS), developed by the Department
in consultation with the Commonwealth Ombudsman's office. The IDS places
special emphasis ' on the sensitive treatment of the detention population
which may include torture and trauma sufferers, family groups, children
and the elderly, persons with a fear of authority, and [refugees]. [13]'
Provision of services, however, is not unconditional. The Minister notes
that the detention centres ' rely on the cooperation of detainees
to ensure the smooth running and good order of the centres'. [14]
The IDS states that
detained children and adults are to be provided with education services,
including English language instruction, cultural classes and sporting
activities. Health care is to be provided soon after individuals are detained.
Dental and hospital services are to be provided where required and medical
care is available around the clock. Qualified chefs, in consultation with
dieticians, prepare three meals per day. Detainees can assist in formulating
culturally appropriate menus through the Detainee Representative Committees.
Milk is to be available for children to drink. Recreational facilities
such as playgrounds, toys and games are to be provided. 'Individually
tailored management plans' are to be developed for all unaccompanied minors,
taking into consideration special needs such as educational and social
requirements. [15]
Notwithstanding the
existence of these standards there is evidence that detention is having
a damaging effect on children's mental and physical wellbeing. Like adults,
children may be detained for prolonged periods while their asylum claims
are being processed. [16] HREOC officers, who recently
completed a fact-finding mission at Woomera Immigration Reception and
Processing Centre (IRPC), the largest of the immigration detention centres,
found that the 236 children detained there were living in 'an atmosphere
of despair due to the length of time in detention and the concomitant
uncertainty over status'. [17] As a response, the children
had engaged in various acts of self-harm including lip sewing, slashing,
ingestion of shampoo, attempted hanging and threats of self-hurt. [18]
The existence of
IDS standards does not guarantee that they are adhered to. Another HREOC
finding related to schooling:
'HREOC officers
also observed that despite ACM's efforts to provide schooling opportunities
for the children, this is confined to those aged twelve and under, and
is not comparable in any way to the education received by Australian
twelve year olds. There are a number of children over 12 years of age
who virtually receive no schooling at all. All children are taught in
the one classroom. Education is provided for a total of only two hours
a day, four days a week.' [19]
Alternative care
DIMIA makes reference
to three types of 'alternative care', two of which concern unaccompanied
children whilst the third provides for children and their mothers. Of
the three types of care, one is truly an alternative to detention although
it currently involves only one child in Australia, one is ambiguous at
to the nature of care it provides and the third is most certainly a form
of detention.
There is one exception
to section 196 under which children may be released from detention. The
Minister may issue a "bridging visa" under certain guidelines
to children, people over the age of 75 years of age, spouses of Australian
citizens or persons with a special health need or with previous experience
of torture or trauma. [20] This discretion is rarely
exercised with respect to children. Currently the Minister has issued
a total of one bridging visa to an unaccompanied child who has been placed
in foster care arrangements within the community. [21]
In January 2002,
9 unaccompanied children were removed from Woomera IRPC and placed in
the care of the South Australian Department of Human Services. Whilst
it is unclear what type of accommodation is being provided to these children
(ie foster care, hostel-style accommodation, etc), it should be noted
that the children were removed because the Government ' needed to
protect [them] from the coercion of other adult detainees throughout
the recent protest action at Woomera detention centre.' [22]
The children were not removed because it was considered that detention
is not in the best interests of children, especially ones without family
members.
The 'Woomera Alternative
Detention Arrangements for Women and Children Project' was established
in August 2001. The DIMIA Fact Sheet describing the project states:
'The Project enables
some women and their children to live in family-style accommodation
away from the IRPC, while remaining in immigration detention. As unlawful
arrivals in Australia, Australian law requires that they remain in detention
while their immigration status is resolved.' [23]
The project is limited
to 25 women and children and the conditions of the project permit only
women who have a family member remaining at the IRPC to participate. While
their daughters are allowed to be a part of the Project, their sons over
the age of 12 are barred. The 25 participants reside in four houses which
they run themselves. They may visit each other but must arrange with authorities
if other people wish to visit them. The family members remaining at the
IRPC may not visit the Project. Outings to local shops, cinema and the
local swimming pool are organised. Children in the Project participate
in the IRPC education program although DIMIA is assessing the possibility
of enrolling them in local schools. [24]
United Kingdom
Current procedures
Unlike Australia
in the UK there is no policy of mandatory detention although there is
provision for short periods of detention for some categories of asylum
seekers considered to be "risky". Under the new White Paper
referred to below it is stated that detention is to be used only as a
last resort before removing individuals whose asylum applications have
failed.
Because of this context,
the main focus of relevant UK policy is on unaccompanied or 'separated'
children. This language is important as it assumes that the primary status
of the child arises from its position as a member of a family. The same
language is used in Canada as is explained below.
The Home Office has
stated:
'There is an undertaking
that unaccompanied children should never be detained other than in the
most exceptional circumstances and only for a very short period.'
Nonetheless, because
of unsatisfactory methods of resolving age disputes, some unaccompanied
asylum seeking children find themselves detained in UK immigration detention
facilities for short periods. It should be noted, however, that it is
estimated that between 1994 and 2001, 220 children had spent time in UK
detentions centres. [26] As the annual figure for asylum
seekers to the UK is currently around 90,000 this figure pales into insignificance
in comparison to Australia.
The general policy
is that all children who arrive in the UK without a valid visa - including
those seeking asylum - who are separated from their parents and other
family members are cared for under the 1989 Children Act. The Home
Office works together with the Department of Health and local authorities
to provide foster and residential placements as well as access to legal,
health and social services to the vast majority of unaccompanied children
who arrive in the UK seeking asylum. The children attend local schools.
Under the Government's "exceptional leave policy", children
whose asylum applications have failed and for whom adequate care in their
country of origin can not be arranged are given leave to remain in the
UK until their eighteenth birthday.
Problems with the current
system
As in Australia it
seems that there in a tension between the ideal and the reality. Children
who are older (16 - 17 years old, some as young as 15) are sometimes placed
in bed and breakfast accommodation. A report released in July 2001, titled
Separated Children in the UK: an Overview of the Current Situation,
notes that often this type of accommodation is unsupported and the services
of a social worker are not provided. The report concluded that this failing
is a question of funding:
'No doubt this
is in part related to anomalies in the funding local authorities receive
from central Government for the care of separated children. For separated
children the level of support they receive from the local authority
can be a lottery, compounded by differences in financial and educational
entitlements related to their immigration status.' [27]
Each year, 4,000
- 5,000 children are referred to the Panel of Advisers for Unaccompanied
Refugee Children, a non-statutory service funded by the Home Office to
provide short-term assistance to separated children. [28]
Expressed as a percentage of annual asylum seekers to the UK this is about
5%. This figure does not include those children who arrive with their
family and seek asylum in the UK.
Government's response
On 7 February 2002,
the Home Secretary, David Blunkett MP, presented the Government's new
White Paper on asylum, migration and citizenship to Parliament. Titled
Secure Borders, Safe Haven, the White Paper sets out the details
of a policy which responds to the current-day challenges of migration
and seeking asylum, largely associated with globalisation. [29]
Chapter Four of the
White Paper deals with asylum generally. A sub-section addresses the plight
of unaccompanied asylum seeking children, stating that the Government
' will continue to offer protection and appropriate levels of care
to children under the age of 18 who have been separated from their parents
and other family and who are genuinely in need of protection.' [30]
The following measures are proposed by the White Paper:
- children separated
from their parents and other family members will continue to be cared
for under the 1989 Children Act;
- the Home Office
will work with local authorities to improve the care and support arrangements
for unaccompanied asylum seeking children by improving information exchange
and models of best practice;
- the Home Office
will also explore possibilities for the joint commissioning (together
with relevant local agencies) of suitable accommodation for unaccompanied
children who are 16 - 17 years old on arrival;
- more effective
mechanisms will be introduced to deal with adults posing as children
including improvement of current age assessment procedures; and
- unaccompanied
children may be interviewed about their asylum applications under a
wider set of circumstances than is currently the case. It is hoped that
children who are given the 'opportunity to tell their story' will provide
the Home Office and local authorities a clearer picture of the child's
background and experiences and in turn enable them to provide more appropriate
levels of care and protection in each case. Only staff who have been
properly trained in this area will be able to interview.
USA
Current procedures
In 2001 the United
States (US) received about 83,000 applications for asylum. [31]
The US does not have a policy of mandatory detention for all unauthorised
arrivals or aliens. It does however detain some categories of "illegal
immigrants" or aliens, and this may include asylum seekers. It has
been estimated that in early 2001 about one third of the 20,000 persons
in some form of immigration detention were asylum seekers. [32]
About 40% of detained asylum seekers are paroled. [33]
These figures show that only a small proportion of asylum seekers are
subject to immigration detention.
Overview of procedures for
dealing with illegal immigration to the US
The Immigration and
Naturalization Service (INS) is responsible for dealing with illegal immigration
to the US. "Aliens", as they are known in the US, who are apprehended
at or near US borders by Border Patrol Agents, are usually transported
to Border Patrol Stations where administrative or criminal processing
begins. If the legal requirements for mandatory detention do not apply
(ie the alien is not placed in expedited removal or proceedings or is
not chargeable as a terrorist or as a criminal) and if there is no risk
of flight or of danger to the community, the alien may be released into
the community under either bail or parole conditions. In a recent statement
to a Senate committee review of Department of Justice immigration detention
policies, INS representatives said, 'In cases where an arriving alien
asserts an asylum claim, INS policy favors release from custody if the
alien is found to have a credible fear of persecution.' [34]
Treatment of unaccompanied
alien children
Under the Immigration
and Nationality Act, the Immigration and Naturalization Service (INS)
is responsible for detaining unaccompanied juveniles who enter the US
illegally. Its fact sheet on its juvenile detention and shelter care program
states that as an initial measure, unaccompanied children arriving in
the US illegally are placed in custody. Priority is placed on releasing
children to parents already in the US, legal guardian or adult relative.
Where no such arrangement can be met, the INS may release the child to
a responsible adult designated by the parent or legal guardian in a sworn
affidavit or to a licensed child-care facility such as foster care or
a boarding home. [35] Nonetheless, in 2000, authorities
detained nearly 4,700 unaccompanied children arriving at US borders without
appropriate documentation. [36] Expressed as a percentage
of asylum seekers (and this figure does not distinguish them from "illegal
immigrants") this is about 5.7% (that is, slightly higher than the
UK figure).
The standard of detention
facilities and treatment of children at the centres is a point of strong
contention, with policy objectives not being fulfilled in reality. The
INS states that its standard, nationwide policy:
' requires
that juveniles not released [from initial custody] be placed only in
facilities that have separate accommodations designed for their needs
All facilities are state-licensed and, as such, meet or exceed state
requirements in the areas of safety, education, recreation and physical
exercise, nutrition, and medical and counseling services.'
The policy further
prohibits detaining unaccompanied alien children in "secure juvenile
facilities" longer than 72 hours. [38]
According to Amnesty
International, however, the INS policy requirements are not always being
met:
'In 2000, the INS
detained nearly 4,700 [unaccompanied alien] children The INS detains
these children at various sites around the country; many of them are
detained in juvenile and county jails.' [39]
Amnesty further claims
that some of these children wear prison uniforms and are pat-searched
or even strip-searched, sometimes handcuffed or shackled, and denied access
to outdoor activities. Some children are allegedly detained in solitary
confinement. [40] Dennis McNamara, former Director of
the UNHCR Division of International Protection, adds that in the US, unaccompanied
children are often detained 'for lengthy periods rarely understanding
what was happening to them [and are] subjected to a rigid and punitive
environment.' [41] At present, unaccompanied alien children
have no right to paid legal counsel or to the services of child welfare
professionals. [42]
Unaccompanied children
seeking asylum are acknowledged as having unique needs and experiences.
In December 1998, the INS released its Guidelines for Children's Asylum
Claims, written to assist INS officers in evaluating unaccompanied
children's asylum applications. The guidelines suggest 'child-sensitive'
methods for interacting with children during their asylum or refugee interviews,
designed to provide the children with a more comfortable, secure environment
in which they can "tell their story". It should be noted, however,
that the guidelines ' do not change the law in any way.' [43]
Proposals for change
On 22 January 2001,
Senator Dianne Feinstein introduced "S.121", a bill titled Unaccompanied
Alien Child Protection Act of 2001, to the Senate. The bill centres
on establishing ' an Office of Children's Services within the Department
of Justice to coordinate and implement Government actions involving unaccompanied
alien children.' [44] The same day, the bill was read
twice and referred to the Committee on the Judiciary. Hearings to examine
the bill were not conducted by the Committee's Immigration Subcommittee
until 28 February 2002, some 13 months later. [45]
The rationale behind
the bill is that responsibility for the care and custody of unaccompanied
children and the responsibility for deciding the outcome of a child's
case should lie with two separate bodies, the new Office of Children's
Services (OCS) and the INS respectively, so as to remove any conflict
of interest. Other measures proposed by the bill include:
- establishing an
"Interagency Task Force on Unaccompanied Children";
- releasing unaccompanied
alien children found in the US into the wider community and placing
them under the jurisdiction of the OCS;
- placing priority
on family reunification or foster care placement over detention and
improving conditions in detention facilities which are designed for
unaccompanied alien children;
- prohibiting detention
in adult or delinquent children facilities (except in the case of violent
children);
- requiring the
OCS to develop policies that would prohibit shackling, handcuffing,
or other restraints on children; placing children in solitary confinement;
and subjecting children to pat or strip searches;
- prohibiting the
repatriation of a child to a country unless a voluntary agency has conducted
an assessment of the conditions in that country and the Office has assessed
the suitability of repatriating the child;
- instructing the
OCS to provide each child with legal counsel and with a guardian ad
litem (the latter must be provided within 72 hours of the OCS taking
custody of the child);
- amending the
Immigration and Nationality Act to create a special immigrant
juvenile visa for immigrant children in certain circumstances who are
already present in the US;
- protecting children
who "age-out" while awaiting final determination of their
immigration applications;
- endorsing the
INS Guidelines for Children's Asylum Claims in their application
to unaccompanied alien children in refugee-like circumstances and directing
the Attorney General to provide immigration officers with related training;
- amending the
Immigration and Nationality Act to exempt unaccompanied alien children
from certain removal and asylum filing provisions; and
- directing the
Comptroller General to assess and report on the performance of the OCS.
Should the bill be
passed and subsequently enacted, the plight of unaccompanied alien children
arriving in the US, including those seeking asylum, will be forever changed.
The bill has the wide support of American and international human rights
and child advocacy groups.
Canada
Current procedures
Canada does not have
a mandatory detention policy. However like the UK it does detain some
categories of "risky" asylum seekers considered to have "manifestly
unfounded" claims or to be a security or other risk.
Detention of child
asylum seekers in Canada is considered highly undesirable and strictly
a "last resort" measure. Nonetheless, grounds for detention
- failure to establish identity, being a danger to the public or posing
a security risk, and being unlikely to appear for immigration proceedings
or removal - apply equally to children and adults. Nothing in Canadian
law prohibits the detention of children. During 1999-2000, 338 children
were detained: 252 were held with a parent (usually the mother), 86 were
separated children. Of the 338 children, 75% were detained for one day
or less. [46] This figure of 338 expressed as a percentage
of the annual number of asylum seekers (111,499) is .3% - a miniscule
phenomenon in comparison to Australia's child refugee population. However,
when one of the authors of this report was in Canada in October 2001,
refugee groups were expressing concern about the increasing number of
unaccompanied minors or "separated children" who were subject
to detention.
Immigration procedures as
they relate to separated children
Citizenship and Immigration
Canada (CIC) is responsible for dealing with people arriving at a Canadian
Port of Entry (POE). When a child arrives, CIC must ascertain two matters:
whether the child will be admitted to Canada and to the refugee determination
procedure; and whether the child is unaccompanied (or "separated")
and therefore in need of special attention. Like adults, children may
make a claim for refugee status at the POE or after entry into Canada.
No child may be removed from Canada without representation. As such, the
Immigration and Refugee Board (IRB) appoints "designated representatives"
to all children without a parent.[47] In 1996, the IRB
adopted Guidelines on Child Refugee Claimants to assist adjudicators
to take the special needs of asylum-seeking children in account when determining
their applications. [48]
Most separated children
arriving in Canada are met by someone at the POE or have the phone number
and address of someone to contact. In such cases, the immigration officers
assess the nature of the relationship and whether it is in the best interests
of the child to release him or her to that person. The proportion of children
arriving on their own (or with siblings or other children) with no contact
person in Canada is relatively small. [49] Where a child
arrives alone like this or where there are concerns about the accompanying
adult or about the person meeting the child at the POE, immigration officers
have a duty to contact an appropriate child welfare agency.
As child protection
and welfare falls under provincial (as opposed to federal) jurisdiction,
treatment of separated asylum seeking children varies from province to
province. [50] Types of placements for children include
foster care, group homes, and semi-independent living. [51]
A UNHCR report titled Separated Children Seeking Asylum in Canada,
written in July 2001, notes that many of the welfare agencies ' lack
the expertise required to address the needs of separated asylum-seeking
children'. [52] An increased strain on resources - owing
to federal-provincial tensions over funding and an overall jump in the
number of Canadian children being cared for by welfare agencies - has
meant that the particular needs of separated asylum-seeking children are
not being met.
The conditions of
the detention centres at which children are held vary. In British Columbia,
children under 18 years of age are detained in a youth offender facility.
In Ontario, the detention centre has been described as ' a bleak
environment.' [53] There are no recreational facilities
for children and detainees must remain in their rooms except during set
periods such as meal times. Limited medical services are provided. By
contrast, the detention centre in Quebec, a former penitentiary, is described
as being ' in good condition, well lit and maintained. [54]
' Detainees have freedom of movement until 11:30pm. Medical, educational
and recreational services are amply provided. Nonetheless, the UNHCR report
makes the following observations:
'The immigration
detention centres are not appropriate places to detain children, let
alone separated asylum-seeking children. They have none of the facilities
required for children, and CIC has no particular child-care expertise.
Young offender correctional institutions are not appropriate either,
as their services are not geared to the particular needs of separated
asylum-seeking children.' [55]
Legislative reform
On 1 November 2001,
the Immigration and Refugee Protection Act received Royal Assent.
Whilst the Act deals with a range of immigration issues, the tone of the
legislation clearly reflects a commitment to the value that sanctuary
should be provided to those who have a well-founded fear of persecution:
'The objectives
for the refugee program stress that refugee protection is in the first
instance about saving lives and that providing fair consideration to
those who come to Canada claiming persecution is a fundamental expression
of Canada's humanitarian ideals.' [56]
The main areas of
reform which specifically relate to refugees include placing a priority
on family reunification; and bolstering refugee protection through a fairer,
more efficient determination process. [57]
Several safeguards
for children are built into the legislation, which are underscored by
a commitment to protecting the best interests of the child. For example,
when deciding whether or not to grant foreign permanent resident status
on humanitarian or compassionate grounds, the Minister is required to
take into account the best interests of the child who is directly affected
by the decision. [58] Similarly, section 67(1)(c) requires
that the Immigration Appeal Division take into account the best interests
of a child who will be directly affected by its decision. [59]
The UNHCR report commends this approach:
'The inclusion
of a best interests test in certain aspects of [the Act] is a positive
step towards the development of child welfare standards within immigration
law.' [60]
Section 60 affirms
the principle that children should be detained only as a measure of last
resort, taking into account the best interests of the child. Regulations
to be made under the Act [61] will set out factors to
be considered with respect to the detention of a child, including:
- whether alternative
care arrangements can be made with local child care agencies or child
protection services;
- the length of
the anticipated detention;
- whether the child
is at risk of being accessed by the criminally organised smugglers who
brought the child to Canada in the first instance;
- the nature of
the detention facility (ie whether there are prison-like conditions
and whether children can be separated from adults); and
- the availability
of services such as education, counselling and recreation.
With regards to schooling,
under section 30(2), a foreign minor child in Canada does not require
an authorisation to study at the pre-school, primary or secondary level
unless he or she is the minor child of a temporary resident not authorised
to work or study in Canada. This will guarantee immediate entry to school
for the children of those seeking refugee status. [62]
The UNHCR notes, however, that ' separated asylum-seeking children
are likely to need the help of an experienced adult to enrol in school.'
Conclusion
Several conclusions
can be drawn from this study:
1. The problem
of children in detention is one which the Australian government has
created through its policies in relation to mandatory detention and
temporary visas, which do not permit family reunion. The large number
of children in detention in Australia is a direct product of those policies.
2. Although Australia
is receiving a similar proportion of child refugees as the United Kingdom
and the USA, currently the issue in Australia is mainly with accompanied
children, whereas in those other countries the problem mainly relates
to unaccompanied child asylum seekers. It should be noted that in Canada
where the government has not introduced a deterrent temporary visa regime,
there is only a small number of child asylum seekers.
3. This study shows
that Australia is alone in not having special legislation and policies
which recognise the needs of child asylum seekers, in particular that
it is in their "best interests" to reside in the broader community.
The Australian government should develop and implement policies which
are consistent with those in the other jurisdictions under study. The
policies in those jurisdictions are compatible with the recognised human
rights of children. Those of the Australian government are not.
4. It can be anticipated
that the number of unaccompanied child asylum seekers will increase
globally and in Australia. Canada is beginning to experience this trend.
The Australian government should foreshadow this and put in place laws
and policies which recognise the different needs of the two separate
groups of child asylum seekers, accompanied and unaccompanied.
5. The study shows
that in common with other countries there is a problem in ensuring compliance
with performance standards relating to child asylum seekers. This suggests
the need for close monitoring of the standards.
* Submission prepared
by Gabi Crafti and Susan Kneebone on behalf of the Castan Centre for Human
Rights Law, Monash University.
Visa subclass 785 was created by amendment to the regulations under the
Migration Act 1958 (Cth) in 1999.
46A and 196 Migration Act 1958
Amendment (Excision from Migration Zone) Act 2001 (Cth) and Migration
Amendment (Excision from Migration Zone) (Consequential Provisions) Act
2001 (Cth).
of Immigration and Multicultural and Indigenous Affairs, Fact Sheet 65:
New Humanitarian Visa System, 14 January 2002. See
www.immi.gov.au
Amendment (Excision from Migration Zone) (Consequential Provisions) Act
2001 (Cth).
Visa subclass 785 was created by amendment to the regulations under the
Migration Act 1958 (Cth) in 1999.
Ruddock MP, Minister for Immigration and Multicultural and Indigenous
Affairs, Women and Children in Detention. See www.minister.immi.gov.au/detention/women_&_children.htm
cit, n 4.
the figures given in the Report on Visits to Immigration Detention Centres
by the Joint Standing Committee on Foreign Affairs, Defence and Trade
(2001) Chapter 5 contains much higher figures.
cit, n 4.
Ruddock MP, Minister for Immigration and Multicultural and Indigenous
Affairs, Women and Children in Detention. See
www.minister.immi.gov.au/detention/women_&_children.htm
Woomera Immigration Detention Centre: report of visit by HREOC officers,
media statement by President Professor Alice Tay AM and Dr Sev Ozdowski,
Human Rights Commissioner OAM, 6 February 2002.
www.humanrights.gov.au/media_releases/2002/05_02.html.
National Inquiry into Children in Immigration Detention Background Paper
3: Mental Health and Development. See www.humanrights.gov.au/human_rights/children_detention/background/mental_health.html
cit, n 12. The fact-finding mission was part of HREOC's National Inquiry
into Children in Immigration Detention, which commenced in November 2001
and which is still in progress.
National Inquiry into Children in Immigration Detention Background Paper
1: Introduction.
www.humanrights.gov.au/human_rights/children_detention/background/introduction.html.
cit, n 4.
of Immigration and Multicultural and Indigenous Affairs, Fact Sheet 83:
The Woomera Alternative Detention Arrangements for Women and Children
Project, 3 August 2001. See www.immi.gov.au
p 56.
Ayotte and L Williamson Separated Children in the UK: an overview of the
current situation, commissioned by the British Refugee Society and Save
the Children, July 2001, p 7.
www.refugeecouncil.org.uk/downloads/separated%20children.doc.
p 17 and Where are the Children? A mapping exercise on the numbers of
unaccompanied asylum-seeking children in the UK: September 2000 - March
2001 carried out by the Refugee Council and the British Agencies for Adoption
and Fostering, p 18. See www.refugeecouncil.org.uk/downloads/Where%20are%20the%20children.doc
Office, Secure Borders, Safe Haven: Integration with Diversity in Modern
Britain, CM 5387, 7 February 2002. See www.refugeecouncil.org.uk/downloads/white_paper/white_paper.pdf
consultation period on the White Paper will last until 21 March 2002 at
which point a Bill on asylum, migration and citizenship will be presented
to Parliament. The Bill is expected to be passed before the Queen's Speech
in November.
cit, n 29, p 61.
website.
Millbank, 'The Detention of Boat People', Current Issues Brief 8 2000-01,
Parliamentary Library (available at
http://www.aph.gov.au/library/pubs/cib/200-01/01cib08.htm).
of Joseph Greene, Acting Deputy Executive Associate Commissioner for Field
Operations and Edward McElroy, District Director, New York, US Immigration
and Naturalization Service, before the House Committee on the Judiciary
Subcommittee on Immigration and Claims regarding a Review of Department
of Justice Immigration Detention Policies, 19 December 2001, 2237 Rayburn
House Office Building, 2:00pm, p2. See
www.ins.gov.
US Department of Justice, Immigration and Naturalization Service Fact
Sheet INS' Juvenile Detention and Shelter Care Program, 7 September 2000.
International, Refugee Children: The Unaccompanied Alien Child Protection
Act (2001).
www.amnesty-usa.org/action/refugee_usa08202001.html.
cit, n 36, p 2.
NB, this prohibition applies unless the child: is an escape risk; is at
risk from harm; is a delinquent or is facing a delinquency hearing; may
be or has been charged with or convicted of a crime; or has shown 'disruptive
or violent behaviour while in a licensed program'. The prohibition is
further limited by the availability of 'juvenile care space'.
cit, n 37.
McNamara, Promises Broken. See www.hrw.org/campaigns/crp/promises/refugees.html
E O'Connor "Current Development: Developments in the Legislative
Branch" 16 Geo. Immigr. L.J. 259 at 259.
also Editorial, "1,000 child immigrants worse off then Elian"
in USA Today, 28 February 2000, p 18.
also J Becker "The other immigrant children" in The Miami Herald,
7 January 2000. See www.hrw.org/editorials/2000/crd-0107-mh.htm
Department of Justice, Immigration and Naturalization Service News Release,
INS Issues New Guidelines for Children's Asylum Claims, 10 December 1998.
See www.ins.gov/graphics/publicaffairs/newsrels/kidsRel.htm
Alien Child Protection Act of 2001 (S.121). See http://rs9.loc.gov/cgi-bin/bdquery/z?d107:s.00121:
transcripts and/or analysis of the hearing become available, this study
will be updated.
p 19. 252 children were detained for one day or less; 24 were detained
for less than 15 days; 42 were detained for over 30 days.
the CIC website at www.cic.gc.ca/english.
of Canada, Child Refugee Claimants: Procedural and Evidentiary Issues,
Ottawa, 30 September 1996.
Separated children seeking asylum in Canada: a discussion paper adapted
from an original report researched and written by Wendy Ayotte, July 2001,
p 15. See www.unhcr.ch/
"Chapter 6: Guardianship and Care of Separated Children", pp
44 - 60.
p 4.
Other areas of reform which broadly relate to the immigration process
deal with: simplifying the legislative framework and creating more coherent
procedures, selection system for skilled workers, the criteria for permanent
resident status and ' maintaining the safety of Canadian society
and respect for Canadian norms of social responsibility.' Section
25(1) Immigration and Refugee Protection Act 2001.
Canada, What is new in the proposed Immigration and Refugee Protection
Act. Pre-publication of the final set of proposed Regulations has been
delayed. Once released, they may be viewed at www.cic.gc.ca/english.
Last
Updated 9 January 2003.
