Commission Website: National Inquiry into Children in Immigration Detention
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Submission to National Inquiry
into Children in Immigration Detention from
Good Shepherd Youth and Family
Service
"Protection
is not a simple concession made to the refugee: he is not an object of
assistance, but rather a subject of rights and duties. Each country has
the responsibility to respect the rights of refugees and assure that they
are respected as much as the rights of its own citizens" [1]
"Catholic Social
Teachings have called upon society to welcome persons experiencing persecution
and to respect the human dignity of all people. The note that we all belong
to one human family and as such have obligations to promote the rights
and development of all peoples across the world irrespective of national
boundaries." [2]
"The gospel
teachings enjoin all to care for the orphan, the widow and to welcome
and care for the stranger."
(Is. 58:6-7; Matt25:34-46.)
HISTORY
Good Shepherd Youth
and Family Service is a work of the Good Shepherd Sisters who are a French
order of Catholic Nuns founded in 1835 by Sr. Mary Euphrasia with the
mission of providing protection for socially disadvantaged women and children.
The Good Shepherd
Sisters arrived in Melbourne from Angers France in 1863 at the request
of the Bishop of Melbourne, James Goold.
Good Shepherd Youth
and Family Service was established in 1976 out of a number of works of
the Sisters including residential care, an orphanage, emergency housing
for families and a micro credit scheme known as the No Interest Loans
Scheme.
Research projects
identifying areas of social need led to the establishment of centres in
Hastings on the Mornington Peninsula, in the western region at
St.Albans, St. Kilda and the Central Office in inner urban Collingwood.
MISSION
Good Shepherd Youth
and Family Service works side by side to support and advocate for people
who are disadvantaged or oppressed in any way.
Good Shepherd provides
a range of services from family counselling to supported accommodation
for the homeless: from "no interest' loans, teenage foster care and
financial counselling to emergency housing and refuges for victims of
domestic violence.
Good Shepherd believes
that everyone, regardless of age, sex, culture or religion, has the right
to adequate income and shelter, opportunities for education and employment,
quality health care and nutrition, and that everyone should be treated
with dignity and respect.
A desire for social
justice and a deep and genuine concern for people is characteristic of
our work.
CAPACITY TO RESPOND
Good Shepherd Youth
and Family Service is responding to the Human Rights and Equal Opportunity
Commission National Inquiry into Children in Immigration Detention out
of direct experience with young people passing through its services who
are or who have been refugee and humanitarian entrants to Australia. In
addition we are able to draw on the professional experience and knowledge
of a number of staff who work directly with young people who have experienced
loss, grief, family separation, dislocation and trauma more generally.
TERMS OF REFERENCE
The Good Shepherd
submission will address the following terms of reference
- The mandatory
detention of child asylum seekers and other children arriving in Australia
without visas, and alternatives to their detention.
- The adequacy and
effectiveness of the policies. Agreements, laws rules and practices
governing children in immigration detention or child asylum seekers
and refugees residing in the community after a period of detention with
particular reference to:
The conditions under which children are detained: and
Guardianship issues.
- The impact of
detention on the well-being and healthy development of children, including
their long-term development.
- The additional
measures and safeguards which may be required in detention facilities
to protect the human rights and best interests of all detained children.
- The additional
measures and safeguards which may be required to protect the human rights
and best interests of child asylum seekers and refugees residing in
the community after a period of detention.
The mandatory
detention of child asylum seekers and other children arriving in Australia
without visas, and alternatives to their detention
The Convention on
the Rights of the Child (1989) requires that
"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". [3]
While the detention
of unaccompanied children might well be consistent with Australian law,
Good Shepherd believes that it can only be justified for the purposes
of health screening and perhaps initiation of procedures which might establish
identity. There is no reason why detention beyond a few days is required.
In the case of children
accompanying their parents or guardians a question arises over the relative
benefits of detention with their family or community release without.
The principle however should remain that children should not be deprived
of their liberty arbitrarily and only as a measure of last resort and
for the shortest appropriate period of time- for this reason Good Shepherd
would advocate the release of all families with children within a set
time frame of say 28 days which should be sufficient to cover the most
basic of investigations and checks.
Detained families
with children should be separated from other adults. Article 37 (c). of
the Convention states that
"Every child
deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person, and in a manner which takes into
account he needs of persons of their age. In particular, every child deprived
of liberty shall be separated from adults unless it is considered in the
child's best interest not to do so and shall have the right to maintain
contact with his or her family through correspondence and visits, save
in exceptional circumstances."
Separation from other
adults would minimise the impact of destructive and self harming behaviour
on children while they and their families are detained.
The impact of
detention on the well-being and healthy development of children, including
their long-term development.
Enormous harm is
being perpetrated upon the children in Australian Immigration Detention
Centres and this will have serious developmental consequences as these
children grow-up. Critical to a young person's well-being and healthy
development is a connectedness to their family (parents, siblings, extended
family), and to their local community and its members. Connectedness to
the wider community through school is the next most important factor where
the young person can establish vital peer relationships with other students
and mentor relationships with teachers and other adult mentors. Research
reveals that a sense of place also plays an important part in the healthy
development of a young person's identity. A massive body of research on
Resilience in young people (for example, see Andrew Fuller, LaTrobe University,
Melbourne and Robert Brooks, Harvard University, U.S.A.) points to the
fact that a broad community involvement greatly assists the well-being
and healthy development of young people. Activities such as sport, outdoor
leisure pursuits, cultural and social events, are crucial to a young person's
physical, social, intellectual, emotional and spiritual development. This
environment allows for the meeting of their basic emotional needs such
as love and belonging, self-acceptance, freedom and fun.
It is our understanding
that immigration detention of children allows for very few of these fundamental
experiences to occur in a young person's life, and these are therefore,
sowing the seeds for untold emotional/psychological damage to occur now
and in the future. We therefore state our strongest opposition to the
immigration detention of children (and their parents/guardians).
Agreements, laws
rules and practices governing children in immigration detention or child
asylum seekers and refugees residing in the community after a period of
detention.
The conditions
under which children are detained
It is our contention
that the Australian Government is violating three United Nations Human
Rights Conventions in regards to children:
The Convention on
the Rights of the Child -for failing to abide by the best interests of
the child and for detaining them not as a measure of last resort but immediately
on arrival
The International
Conventions on Civil and political rights- for arbitrarily detaining children;
and
The Convention Relating
to the Status of Refugees- for punishing with extended detention following
the illegal nature of arrival. Note that we make a distinction between
the illegal nature of arrival and the commonplace definitions used by
the media and encouraged by Government to describe asylum seekers as "illegals'.
Guardianship issues
Under the Immigration
(Guardianship of Children )Act 1946 the Minister is required to exercise
the same duties and obligations as a natural guardian of a child.
"The Minister
shall be the guardian of the person, and of the estate in Australia, of
every non-citizen child who arrives in Australia after the commencement
of this Act to the exclusion of the father and mother and every other
guardian of the child , and shall have, as guardian, the same rights,
powers, duties, obligations and liabilities as a natural guardian of the
child would have, until the child reaches the age of 18 years or leaves
Australia permanently, or until the provisions of this act case to apply
to and in relation to the child, whichever first happens." (S6)
It is our opinion
that the guardian of the child should stand in "loco parentis' and
therefore should have responsibility for "the long and short
term care, welfare and development of the child ". (Family
Law Act Section 60B) [5]
While conformity
to International Conventions and Standards and to the Department of Immigrations
own Detention Standards is necessary and appropriate, it appears to Good
Shepherd that detention of children whether accompanied or unaccompanied
by parents or guardians imposes special obligations on the Minister for
Immigration. We believe that not only is there an obligation to minimize
or avoid harm of the children detained but that there is a further positive
obligation to maximise the care, welfare and development of the child
or young person.
The additional
measures and safeguards which may be required in detention facilities
to protect the human rights and best interests of all detained children.
The use of a private
for profit provider in the management of detention centres is a barrier
to appropriate scrutiny of operations. Experience with adult corrections
does not assist in understanding the special obligations that are in place
when children are detained. Good Shepherd is aware of the DIMA guidelines
in relation to the Detention Centres and are supportive of the good work
which has been undertaken by the Independent Committee appointed by the
Minister .
We are also aware
of the additional scrutiny provided by others with inspectorial roles
such as the West Australian Inspector of Custodial Services. We believe
that neither of these satisfy the concerns in the community at large about
what is happening in detention centres. Good Shepherd believes consideration
should be given to the establishment of a Community Visitor Scheme such
as established in Victoria for the visiting of Mental Health, Disability
and Community Residential facilities under the Guardian and Administration
Act. This visiting scheme draws on community members with broad life experience
and some training and allows them entry to facilities with a brief to
report on the care and provisions for those detained. They are seen as
entirely independent, representative of the community and their reports
are tabled in Parliament. It would be entirely possible to establish a
scheme at the Commonwealth level with particular reference to the Children
in Detention.
A further protection
could be the establishment of an Australian Childrens' Commissioner with
the capacity to represent the interests of all children in Australia ,
not just those with the status of citizenship.
The additional
measures and safeguards which may be required to protect the human rights
and best interests of child asylum seekers and refugees residing in the
community after a period of detention.
Unaccompanied
children and young people
Access to health,
education and support services is vitally important to young people coming
to Australia. Munira's story below is the story of a young woman who has
overcome tremendous odds to eventually become a citizen of Australia who
contributes to the well-being of our community.
" My name
is Munira Mohamed and I work at the Good Shepherd Youth and Family Service
located in Collingwood, as a housing support worker. The following is
a brief account of my story as a minor unaccompanied refugee in the
eighties, having being displaced in a number of countries, before eventually
finding my feet in Australia. What this brief highlights is how a potentially
tragic and unfortunate situation for a child has turned into a success
story with a little bit of support, compassion, tolerance, acceptance
and humanity on the part of the Australian community.
My family escaped
Ethiopia by foot in late 1978 due to the harsh military regime and civil
war that followed. My father was harassed and imprisoned a number of
times on bogus allegations before he decided to flee Ethiopia. My family
lived in a city and my father had a Jewellery business and employed
several young people in his business. The government prohibited leaving
the country and branded people as traitors if they attempted to leave.
Anyone who planned to leave the country at that time had to risk being
imprisoned, tortured and even killed.
My father decided
to sacrifice everything by leaving his home, business and other material
possessions and fleeing the country to maintain his social, political
and religious freedom and to escape persecution. Though we were young
and there were four of us, my father decided not to leave his young
family behind and face any risks that came along the journey together
with the family.
In the dark
of the night, in late 1978 the family was bundled into a Jeep and driven
to a small country town at the border with Djibouti in the Horn of Africa.
Once we arrived there, we were met by a small group of Somali nomads
who guided our way to Djibouti. I was 8 years old and the oldest child
in my family. My younger three siblings were, my sister who was 6 and
my brothers who were 5 and 4 when we fled Ethiopia, riding on camels'
back, while my parents walked for 2 weeks to get to Djibouti.
On arrival in
a small town in Djibouti, we went to the Djiboutian authorities and
informed them that we were asylum seekers, who escaped political persecution
in Ethiopia. We were sent to a refugee camp where we stayed for 1 month
while our application for refugee status was being processed. My family
then moved to the capital city which is also called Djibouti, started
a new business on an interim basis and hoped things would get better
in Ethiopia one day, so that we could return to our home country.
While the family
was able to gain housing, work and start a new life in Djibouti, the
children were unable to go to school as there were limited places in
the one formal school Djibouti offered its citizens. Hence, I stayed
at home and had a tutor that came once in a while to teach me the basics
in literacy and numeracy. My siblings and myself had little contact
with the outside world, as my parents were protective of us and did
not allow us to go outside and play with other children.
This is where
my story starts. One year after arrival in Djibouti, my mother sent
me to the market with a friend of hers to buy rice. On the way back
from the market I saw a group of young people gathering around a building.
My mother's friend and I decided to go over the building and have a
look at what was going on. We found out that it was the United Nation
officers interviewing young people, mostly young adults who were Refugees
in a bid to send them to Egypt on an interim basis to get an education
while waiting for the political climate in Ethiopia to settle down.
Suddenly, a
UN officer came over and asked if I was able to write and read in Arabic.
I nodded yes. The officer then provided me with a pen and paper and
asked me to write on it, which I did. That is all the interaction I
remember having with the officer. About a month later, my mother received
news that my name was on the UN list as having been selected to go to
school in Egypt. My mother's reaction was that of shock and fear. Subsequently
she asked the bearer of the news to keep it confidential. My mother
felt that my father would not allow me to go abroad, given that I was
a female and so young in age, as well as due to the lack of community
links in Egypt. My family knew no one in Egypt and there was no information
available about where and how I would live in Egypt, apart from the
promise that I'd go to school.
Consequently,
the news was kept hidden from my father until just days before the advertised
departure date. Some friends of my father however, eventually decided
to approach and persuade him to allow me to go to Egypt for the sake
of getting an education. What that meant in practical terms though,
was that I had just about 3 days to organise a passport and for psychosocial
and practical preparation time, such as packing and saying my goodbyes.
I found myself going through a climate of panic as my trip was being
organised to suddenly finding myself at the airport on the night of
my departure. Like a lamb to slaughter I went through the airport with
no emotions, as the reality of what was going to happen did not hit
at that point, while my mother searched for any Ethiopian travelling
to Egypt to ask them to keep in touch with her daughter in the hope
that they would somehow be able to oversee my well being.
On arrival in
Cairo, I emerged with 3 other Ethiopian refugee children who were all
boys. A UN officer was waiting to take us to some accommodation. We
were given no information about where we would be taken or what arrangement
has been made for us. After about half day of being driven around from
one hotel to another that refused to take 4 kids under the age of 10
unaccompanied, I started to panic and began to cry and beg to be taken
home to my mother. The UN officer was at his wits end as it started
to get dark and he had 4 tired and distressed children that he could
hardly communicate with, in the car. Eventually, he was able to strike
a deal with one hotel manager to accommodate us for one night on the
promise that he would collect us early the next morning. As arranged
he came and took us to the UN office in Cairo the next morning, where
they were able to get an Ethiopian woman who agreed to act as a guardian
for myself and one of the boys who came to Egypt with me.
I lived in Egypt
for 8 years in various bizarre housing arrangements, including becoming
a guardian myself at the age of 15 and finding myself in a flat with
4 of my younger siblings, who in 1985 were also sent to Egypt to get
an education. My Siblings ranged in age from 5 to 13 years. When the
responsibility of taking care of my siblings took it's toll on my physical
and emotional well being and lead to leaving school, I decided to apply
for resettlement in Australia through a relationship I had with a young
man who was also an Ethiopian refugee who was studying in Egypt. I decided
to include my sister, who follows me in age in my application, as I
was concerned that she would be assigned to look after the younger siblings
at the age of 13 in my absence.
My sister and
I arrived in Australia in 1987, in the company of this young man on
the basis of my relationship with him. A year after arrival in Melbourne
I left that relationship as I became ambitious about my future and wanted
to take advantage of the opportunities that were available to me in
terms of getting an education, personal development and breaking out
from the prescribed traditional role of women within my culture.
Coming to Australia,
within a relatively welcoming and tolerant social and political environment
has helped me to overcome the many hurdles and difficulties I faced
as an unaccompanied refugee child displaced in many places. Moreover,
having been given the kind of opportunities in terms of access to education,
health and community support services available to all Australian children,
I believe made me determined to make something out of life and give
something back to the Australian community that supported me in my effort
to once again became a citizen of a country, free from persecution,
harassment and displacement.
Generally where a
young person is unaccompanied, the Minister for Immigration delegates
guardian responsibility to State Departments of Community Services. The
capacity of States Departments to provide an active guardianship which
fosters in a positive way the relational social health and educational
development of young people is extremely limited. Much of the operational
approach of States Departments is coloured by child protection legislation
which aims at minimizing the footprint of State Intervention in the lives
of young people because at its base is a presumption that there is a family
which has the interests of the young person at centre although they may
not be able to give effect to this interest.
A wholistic approach
to the total well being of the young person is difficult to achieve in
an operational context of minimal intervention. While organizations such
as the Red Cross do have a wholistic approach their response is circumscribed
by the parameters of the Asylum Seeker Assistance Scheme itself. The scheme
potentially could be expanded to provide a wider range of supports to
unaccompanied and accompanied young people and their families but Good
Shepherd advocates an examination of the option of the appointment of
Guardians from the community for unaccompanied young people in addition
to the services and assistance to which they may be entitled. It is understood
that this would require the relinquishment by both the Minister of Immigration
and the Department of Human Services of guardianship responsibilities;
the difficulties of this are not underestimated given the almost total
powers of the Minister for Immigration around relinquishment and resumption
of guardianship.
Good Shepherd notes
with concern the treatment of some young people who are released into
the community on almost the same basis as adults with the presumption
that they require minimal support and that they will connect with their
own community supports. The rationale behind this is that they have been
living extremely independently prior to entry to Australia. It appears
to us that the time on release is a time when intervention and support
has most impact and can ensure the most productive settlement of the young
person. For this reason they should not be exempt from the support mechanisms
in place for other children.
Accompanied young
people
The additional measures
required to protect the human rights and best interests of child asylum
seekers accompanied by parents or guardians would be met if those adult
asylum seekers were entitled to full financial and social support upon
release. The restricted entitlements associated with temporary protection
visas have a very severe impact on children in these families and this
is compounded by a lack of knowledge of alternative supports. Where families
do make contact with services such as those provided by Good Shepherd
they are responded to with the limited material and financial aid we have
available to us.
CONTRIBUTORS TO
THE GOOD SHEPHERD YOUTH AND FAMILY SERVICE SUBMISSION
- Helen Hoffman
- Margaret Dorizzi
- Jamie Edwards
- Robert Williams
- Lynne Chapman
- Annette Leverett
- Renee Huish
- Trinity Henwood
- Daniela Zimmermann
- Linda Dicker
- Marg Valentine
- Christine Carter
- Livia La Rocca
- Louise Schlitz
- Julie Leech
- Michael Yore
- Karolee Wade
- Amber Richardson
- Christine Soderiou
- Jill Wain
- Louise Dowling
- RGS Kirsten Bickendorf
- Carmel Stafford
- Eva Barton
- Carmen Dimech
- Mike Williams
- Jemma Mead
- Patricia Aron
- David Shannon
- Violet Spasevski
- Tina Kozmak
- Helen Smallwood
- Munira Mohamed
- Barry Pullen
- Marilyn Webster
- And members of
staff at Good Shepherd St. Albans and St. Kilda
ENDNOTES
A Challenge to Solidarity.
Commission for Justice Development and Peace. (2000) "Hordes or Human
Beings- A discussion of the problems surrounding Australia's Response
to Asylum Seekers and Possible Solutions to those Problems."
on the Rights of the Child: Text as adopted by the General assembly of
the United Nations. (1989)
(Guardianship of Chidlren) Act 1946
Law Act (1975)
Last
Updated 30 June 2003.
