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Submission to National Inquiry

into Children in Immigration Detention from

Jesuit Refugee Service (JRS)


Jesuit Refugee Service

(JRS) is an international Catholic organisation whose mission is to accompany,

serve and defend the rights of forcibly displaced people. It has a staff

of over 600 full time personnel and is at work in over 60 countries. At

the present time JRS has active programmes of social support and legal

counselling in prisons and detention centres for asylum seekers in about

20 countries. Jesuit Refugee Service Australia (JRS Australia), an incorporated

body, both supports this international organisation through recruitment

and raising funds, and at the same time serves refugees in Australia.

Over the past 20

years, some 200 Australians have contributed their professional skills

and dedication through JRS programmes of service to refugees, of research

and the promotion of the rights of refugees in various parts of the world.

Their minimum time commitment for overseas service has normally been two

years, although some have served for more than ten years. On return to

Australia, most remain in close contact with JRS, and as members of an

informed public, are able to observe the conditions under which asylum

seekers are treated in this country.

Within Australia

our personnel regularly visit Villawood Immigration Reception Centre as

pastoral workers, and the Woomera facility in both a pastoral and legal

counselling capacity. Because of our experiences through this network

of contact, service, research and information, we welcome this important

enquiry into the situation of children in immigration detention in Australia.

We are compelled to speak, given what we see is an untimely and unnecessary

refugee crisis provoked by the failure of the Australian Government to

respect its international obligations.

JRS Australia is

convinced that the Australian Government policy of non-reviewable mandatory

detention is unjust, inhumane and unnecessary and contrary to our obligations

as a signatory to the Refugee Convention. Moreover, the current Australian

practice fails to comply with the Detention Guidelines set out by the

UNHCR Executive Committee (of which Australia is a member) Conclusion

No.44.

In particular JRS

Australia argues that the detention policy currently administered by the

Australian Government contravenes:

Article 9 of the

International Covenant on Civil and Political Rights and article

37 of the Convention on the Rights of the Child, which prohibit

arbitrary detention;

Article 37 of the

Convention on the Rights of the Child, which prohibits detention

of children except as a last resort and for the shortest appropriate period

of time;

Article 10 of the

International covenant on Civil and Political Rights and Article

37 of the Convention on the Rights of the Child which require that

detained persons be treated with humanity and respect for human dignity;

Article 23 of International

Covenant on Economic, Social and Cultural Rights and article 18 of

the Convention on the Rights of the Child which protect the right

of parents to found a family, the right of families to state care and

support, and the right of children to the care of their parents;

Articles 13 and 15

of the International Covenant on Economic, Social and Cultural Rights

and article 28 of the Convention on the Rights of the Child which

recognise children's rights to education.

Article 9 of the

International Covenant on Civil and Political Rights and article

37 of the Convention on the Rights of the Child, which recognise

a right to take legal proceedings to challenge detention;

Article 22 of the

Convention on the Rights of the Child, which requires the state

to provide appropriate protection and humanitarian assistance to refugee

and asylum seeker children, especially in relation to family reunion;

Given JRS Australia's

experience with children in detention and those recently released, we

feel confident in making the following observations:

The present system

in Australia sees many children held in detention for months and some,

even years. Normal family life is impossible in the detention setting

with restricted freedom, roll calls and musters, invasion of privacy,

disturbed sleep, violent incidents between detainees and between detainees

and staff. There are complaints of forced medication, (tranquillisers

and anti-depressants), and of inadequate treatment and medication for

valid medical conditions. There are instances of mothers and children

being held in detention while the father of the family is living in the

community already accepted as a refugee. There are instances of young

children being subjected to tear gas use and injured in baton charges,

and others where children have been forcibly detained and placed in isolation

as a means of punishment and control. Children have, through no fault

of their own, been witnesses to violence, depression, and suicide attempts

and the psychological damage done by this trauma may take years to address.

The siting of detention

centres in remote and arid parts of the country contributes to all the

problems experienced by the detainees and, JRS suggests, those of the

staff who have care of them.

JRS Australia considers

the dysfunctional regime imposed by the detention centres to be wholly

unacceptable and submits that Australia's greatest failure has been to

care for the psychological and social well being of children by:

  • Mandatorily detaining

    them without reference to their possible previous trauma

  • Holding them in

    detention arbitrarily and without adequate explanation and information

    and thereby placing them at risk of further harm and psychological stress.

  • Failing to provide

    adequate medical and psychological support staff; ignoring the advice

    of medical professionals when given and failing to address the signs

    of depression and suicidal tendencies in children, young people and

    adults.

  • Failing to process

    refugee claims quickly and efficiently thereby causing children and

    adults to be detained for lengthy periods.

  • Failing to expedite

    the reunion of family members.

  • Failure to provide

    suitable recreation and play facilities and intellectual stimulation

    in the form of appropriate educational programmes for all ages.

  • Failure to provide

    suitable detention centre staff, trained specifically in the needs of

    people seeking asylum, as opposed to correctional staff.

  • Siting detention

    centres in remote, arid and isolated parts of the country where amenities

    are minimal and normal social access impossible.

JRS Australia also

submits that current laws, policies and practices hinder long-term outcomes

for asylum seeking children in the following ways:

  • Legislation which

    has progressively limited the powers of judicial review since 1992.

  • Legislation which

    permits detainees as young as ten to be strip-searched. (Introduced

    and passed in 2001).

  • The revision of

    definitions of " refugee", "persecution", "particular

    social group", and the introduction of the terms "non-political"

    and "particularly serious" crimes, into the 2001 Migration

    Act revision, makes it more difficult than before to prove refugee status.

    This affects the dependent children of asylum seekers unaccompanied

    minors.

  • Legislation passed

    in 2001 which gives fewer benefits to those who arrive onshore without

    valid visas or are processed in excised territories such as Christmas

    Island, and in the camps on Nauru and Manus, than those who apply via

    UNHCR overseas or arrive with valid visas. This penalises the children

    of some of the most desperate asylum seekers who have already endured

    danger and hardship to escape harsh regimes such as those of Iraq, Iran

    and Afghanistan.

  • The conditions

    of the Temporary Protection Visa subclass 447 renders holders uncertain

    regarding their status and unable to plan ahead or have any sense of

    permanence or belonging. This is particularly important for children

    and young people. Holders of this visa can only apply for an 866 visa

    (permanent protection) at the discretion of the Minister.

  • For holders of

    the TPV with families in other countries, the lack of right to family

    reunion means that some children may never be reconnected to members

    of their immediate families. Australia's policies are impinging on children

    outside the country who would once have been able to come to Australia

    under family reunion provisions.

  • The excision of

    offshore islands from the migration zone and the returning of boats

    to Indonesia places children (and adults) at risk. The so-called "Pacific

    solution" has meant the incarceration of children and adults in

    environments not equipped to deal with them.

  • Australia's "Safe

    third country" provisions do not meet the UNHCR guidelines and

    therefore could put children (and adults) at risk of returning to a

    place where they have insufficient protection or unable to stay permanently

    and may finally force their return to the original country of persecution.

JRS believes the

rights of the child would be best served by an efficient initial assessment

of health and security on arrival in Australia during which time legal

advice and counselling would be freely available to adults and unaccompanied

minors. This process, particularly in the case of children and their parents,

should take no more than 72 hours and parents and children should not

be separated. Families should be assisted into the community with secure

housing, English language classes, health care and assistance with employment.

Families should be given assistance to locate appropriate schools for

their children. Resources should be allocated to identifying symptoms

of trauma and the provision of psychological support services for both

children and adults.

Unaccompanied minors

should be housed with carefully vetted foster families or in community

housing with all necessary support mechanisms in place including the appointment

of an appropriate guardian. They should have close contact with their

language and cultural groups and be assisted into appropriate high schools

and training courses.

JRS submits that

the release of asylum seekers into the community with monitoring and support

would be cost effective by comparison with the maintenance of privately

run detention centres both on and offshore. JRS believes that while asylum

seekers are waiting for their refugee status to be determined, the best

interests of children (and adults) are served by assisting their assimilation

into Australian society. By adopting this approach Australia is also fulfilling

its international obligations.

JRS Australia submits

it is a contradiction in terms to address the welfare of children in detention

on the grounds that the very fact of detention works against all aspects

of welfare of the child. Once the detention of children is accepted, their

rights are compromised regardless of the quality of the amenities provided

and in the case of the detention centres in Australia, JRS considers the

provision of education, recreation, access to legal advice, health care

and family support to be gravely deficient. However, not only are essential

elements missing in the care of children in detention, JRS submits that

the implementation of Government policies is causing a degree of pain,

suffering and psychological harm which may take years to address.

JRS Australia maintains

that, in implementing its policy of mandatory detention, the Australian

government has breached articles of the Convention on the Rights of

the Child, the International Covenant on Civil and Political Rights

and the International Covenant on Economic, Social and Cultural Rights

and, as the legal guardian of children while in detention, now stands

in breach of its duty of care.

Last

Updated 9 January 2003.