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Submission to the National

Inquiry into Children in Immigration Detention from

the Castan Centre for Human

Rights Law, Monash University


Detention,

Children and Asylum Seekers: a comparative study*

Australia

United Kingdom

USA

Canada

Conclusion


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.

[5]

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.'

[12]

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.'

[63]

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.

1. Temporary

Visa subclass 785 was created by amendment to the regulations under the

Migration Act 1958 (Cth) in 1999.

2. Sections

46A and 196 Migration Act 1958

3. Migration

Amendment (Excision from Migration Zone) Act 2001 (Cth) and Migration

Amendment (Excision from Migration Zone) (Consequential Provisions) Act

2001 (Cth).

4. Department

of Immigration and Multicultural and Indigenous Affairs, Fact Sheet 65:

New Humanitarian Visa System, 14 January 2002. See

www.immi.gov.au

5. Migration

Amendment (Excision from Migration Zone) (Consequential Provisions) Act

2001 (Cth).

6. Temporary

Visa subclass 785 was created by amendment to the regulations under the

Migration Act 1958 (Cth) in 1999.

7. P

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

8. Op

cit, n 4.

9. Note:

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.

10. Op

cit, n 4.

11. P

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

12. HREOC,

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.

13. See

www.humanrights.gov.au/media_releases/2002/05_02.html.

14. Ibid.

15. Ibid.

16. Ibid.

17. HREOC

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

18. Op

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.

19. Ibid.

20. Ibid.

21. HREOC

National Inquiry into Children in Immigration Detention Background Paper

1: Introduction.

22. See

www.humanrights.gov.au/human_rights/children_detention/background/introduction.html.

23. Op

cit, n 4.

24. Ibid.

25. Department

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

26. Ibid.

27. Ibid,

p 56.

28. Ibid.

29. W

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.

30. See

www.refugeecouncil.org.uk/downloads/separated%20children.doc.

31. Ibid,

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

32. Home

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

33. A

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.

34. Op

cit, n 29, p 61.

35. UNHCR

website.

36. A

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).

37. Ibid.

38. Statement

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.

39.

US Department of Justice, Immigration and Naturalization Service Fact

Sheet INS' Juvenile Detention and Shelter Care Program, 7 September 2000.

See www.ins.usdoj.gov.

40. Amnesty

International, Refugee Children: The Unaccompanied Alien Child Protection

Act (2001).

41. See

www.amnesty-usa.org/action/refugee_usa08202001.html.

42. Op

cit, n 36, p 2.

43. Ibid.

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'.

44. Op

cit, n 37.

45. Ibid.

46. D

McNamara, Promises Broken. See www.hrw.org/campaigns/crp/promises/refugees.html

47. E

E O'Connor "Current Development: Developments in the Legislative

Branch" 16 Geo. Immigr. L.J. 259 at 259.

48. See

also Editorial, "1,000 child immigrants worse off then Elian"

in USA Today, 28 February 2000, p 18.

49. See

also J Becker "The other immigrant children" in The Miami Herald,

7 January 2000. See www.hrw.org/editorials/2000/crd-0107-mh.htm

50. US

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

51. Unaccompanied

Alien Child Protection Act of 2001 (S.121). See http://rs9.loc.gov/cgi-bin/bdquery/z?d107:s.00121:

52. When

transcripts and/or analysis of the hearing become available, this study

will be updated.

53. Ibid,

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.

54. See

the CIC website at www.cic.gc.ca/english.

55. IRB

of Canada, Child Refugee Claimants: Procedural and Evidentiary Issues,

Ottawa, 30 September 1996.

56. See

www.irb.gc.ca

57. UNHCR,

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/

58. Ibid.

59. Ibid,

"Chapter 6: Guardianship and Care of Separated Children", pp

44 - 60.

60. Ibid,

p 4.

61. Ibid.

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.

63. CIC

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.