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Submission to National Inquiry

into Children in Immigration Detention from

the West Australians for Racial

Equality


The commissioner

will inquire into the adequacy and appropriateness of Australia's treatment

of child asylum seekers, and other children who are, or have been, held

in immigration detention, including:

1. The provisions

made by Australia to implement its international human rights obligations

regarding child asylum seekers, including unaccompanied minors.

Australia is signatory

to a number of international treaties which impose protection obligations

upon the government in relation to people who are physically present in

this country. People who seek asylum on-shore in Australia are currently

granted Temporary Protection Visas (TPVs) if found to be genuine refugees.

Unaccompanied minors are included in this process of mandatory detention,

subject to investigation and their claim's determination, before being

released into the wider Australian community.

It is recommended

by UNHCR that Temporary Protection Visas (TPVs) be issued in cases where

the political circumstances in the refugees' country of origin are likely

to change, thus allowing the possibility of repatriation. Whilst the political

circumstances of Afghanistan have experienced significant change, since

the rule of the Taliban has been overthrown, it does not automatically

follow that these refugees can safely be repatriated. Many Afghan refugees

are of Hazara ethnicity, who have systematically been persecuted by many

regimes before the Taliban came into power. It seems doubtful, therefore,

that it would be consistent with UN guidelines or the spirit of the various

international treaties to which Australia is signatory, that these people

be sent back to their country of origin on or before the expiry of their

3 year TPVs. It seems counter-productive, costly and ill thought out to

issue a second TPV. Not only is this an unnecessary administrative complication

but it has ramifications for the refugees and the support services available

to them. Those refugees issued with Permanent Protection Visas have available

to them a range of settlement services which are denied the children and

unaccompanied minors issued with TPVs.

It may be argued

that many of the policies applied to on-shore asylum seekers contravene

numerous articles of treaties to which Australia is a party to including:

  • The Convention

    on the Rights of the Child (CROC);

  • The Refugee Convention

    and Protocol;

  • The Convention

    Against Torture and Other Cruel or Degrading Treatment or Punishment

    (CAT);

  • The International

    Covenant on Civil and Political Rights (ICCPR);

  • The International

    Covenant on Economic, Social and Cultural Rights.

We urge that Australia

act to ensure that all children seeking asylum here are protected, their

development fostered, and their well-being assured in accordance with

Australia's treaty obligations and its commitment to uphold human rights.

2. The mandatory

detention of child asylum seekers and other children arriving in Australia

without visas, and alternatives to their detention.

The relevant treaty

with respect to mandatory detention of either accompanied or unaccompanied

minors is the Convention on the Rights of the Child. Article 37(b) and

37(c) states:

(b) No child shall

be deprived of his or her liberty unlawfully or arbitrarily. The arrest,

detention or imprisonment of a child shall be in conformity with the

law and shall be used only as a measure of last resort and for the shortest

appropriate period of time;

(c) 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 the needs of persons of his or her 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;

The experience of

many children seeking asylum in Australia, whether together with their

parents and/or other family members, or unaccompanied, is the deprivation

of their liberty for an indefinite period of time within a Government-funded

detention centre. The detention of children in this instance is is not

being used as a measure of last resort, and many children have remained

in detention for over 12 months, which is a considerable length of time.

The uncertainty faced by refugees during flight is thus prolonged once

they arrive in Australia.

Many of those released

from detention have recounted being referred to as a number, not by name,

which surely offends the inherent dignity of any human when subjected

to such treatment for an extended period of time. The effect of this on

the developing personalities, and the social, pyschological and emotional

functioning of growing children must not be underestimated. One teenage

boy, who arrived as an unaccompanied minor from Afghanistan in 1999, described

the fear he felt during his time in detention, and the 'punishment' people

endured if they did not respond to their number being called over the

loudspeaker. This punishment may include being restricted to certain areas

of the detention facility, or being excluded from certain leisure or educational

activities.

3. 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

Children in Australia's

detention centres face conditions that have been described as worse than

that of our own prisons. There are a number of problems that result from

the staffing arrangements of these centres, and the lack of transparency

of services that are supplied by ACM.

Asylum seekers are

usually traumatised people. Most have survived the journey to Australia

by unsafe means, the majority of them are found to be genuine refugees,

which entails their having also survived persecution and/or torture before

fleeing their country of origin. It would seem essential, therefore, that

an adequate number of highly-trained mental health professionals ought

to be providing services to enable these people to cope during their time

of detention. The Miscellaneous Worker's Union has claimed that the guards

employed by ACM undergo a high level of stress and strain in implementing

the Government's policies, and that the ratio of staff to detainees is

unreasonable given the circumstances under which they are operating. Children

are obviously more vulnerable than adults, thus the effect of such an

arrangement on children in detention is exacerbated.

  • health, including

    mental health, development and disability

Many factors contribute

to the overall psychological impact of the refugee experience. All refugees

suffer from multiple losses, having been forced to flee their homeland.

They must also endure the stresses of living in various countries of temporary

asylum, or passing through many countries in order to get to Australia

with people smugglers. Other traumatic experiences may include: human

rights abuses, inadequate health care, malnutrition, despair, loneliness,

anger, group violence, witnessing the capture, torture or death of a family

member and imprisonment. Some refugee youths have also 'been actively

involved in civil war as soldiers and have suffered a deep loss of their

political cause making them feel completely alienated from the youth in

their new environment." Unaccompanied minors have the added distinction

of being without parents or carers during this turbulent period.

Living through such

circumstances often results in Post Traumatic Stress Disorder, which may

affect the developmental processes of a child or adolescent in the areas

of cognitive functioning, trust, initiative, interpersonal relations,

personality, self esteem, outlook and impulse control. The demands of

resettlement in a new culture and environmental system are also confusing

and difficult, often complicated by social isolation. This combination

of multiple stresses and losses that is experienced during flight, on

arrival and post arrival leads to a high likelihood of depression, possibly

leading to self harm or suicidal tendencies during and after initial settlement.

It is estimated that

the majority of refugees who enter Australia have suffered some form of

torture or trauma. Unaccompanied refugee children are particularly emotionally

vulnerable without the support of their family, and some may have witnessed

their parent's torture or death. It is also possible that they themselves

have been victims of rape or sexual assault during their escape. Torture

is both physical and psychological, so victims may have both visible and

invisible scars. It is important that service providers, such as their

Guardians, are aware of the lingering effects of trauma, and how this

may affect their settlement experience. The condition of uncertainty and

doubt about the future faced by teenagers with TPVs can do a great deal

of psychological and social harm. They are at an age when their personalities

are yet to be fully developed, and are trying to make sense of their own

place in society. The stability and increased access to services that

a permanent visa would supply could improve their psychological well-being

dramatically.

Adjustment, stress

and anxiety disorders may be prevalent amongst this group, and mental

health services need to be accessible to these teenagers so that treatment

and support can be managed appropriately. When these children are the

holders of TPVs they are ineligible to access to Migrant Resource Centres

which would provide specialist referral services to ensure appropriate

mental health services are accessed. In addition, TPV holders are also

denied full access to educational and language training, frustrating their

ability to seek this type of support.

In our view, referring

to somebody by using their names is a fundamental acknowledgment of their

human dignity. Children, like adults in detention have been denied this

basic dignity by the ACM staff who know and refer to people by a number.

  • education

The provision of

education in detention centres is uneven, and by all accounts, inadequate.

Children in detention have often come with little or no education, and

when they spend prolonged periods in detention, that further delays their

educational attainments.

Those children issued

with TPVs may have limits on their access to education in schools and

TAFE, including the Intensive Language Centres (ILCs) which provide specialised

English tuition from highly trained professionals to other newly arrived

children of migrants or refugees. Those who have been granted permanent

residence in Australia (on a PPV) are entitled to 12 months enrolment

at an ILC if it has been assessed that their English skills are insufficient.

Many refugee children

have had disrupted or non existent education, thus the new school environment

may be alienating to them, and the ILCs provide a smooth transition into

mainstream schooling. Those holding a TPV are also excluded from attending

the English as a Second Language (ESL) classes that operate out of some

public and private High Schools. Thus, it is very difficult to provide

these children with the English skills needed to function in Australian

society.

  • culture

In detention, children

are unlikely to receive positive affirmation of their own cultures. Although

they are usually in the company of people with whom they share language

and culture, the older children at least would be aware that their culture

is not necessarily respected by the people in authority with whom they

must interact. At the same time, detention does not provide adequate exposure

to 'normal' Australian life and culture. It is important to provide opportunities

for children to learn about Australian culture and language as well as

to maintain knowledge and pride in their ancestral cultures. The development

of a sound and healthy identity, pride and self-esteem, depends on positive

cultural as well as social and psychological experiences.

  • guardianship

    issues

The UN Convention

on the Rights of the Child (CROC) Article 3(3) States that:

States Parties

shall ensure that the institutions, services and facilities responsible

for the care or protection of children shall conform with the standards

established by competent authorities, particularly in the areas of safety,

health, in the number and suitability of their staff, as well as competent

supervision.

It has been the case

that unaccompanied minors released from the Curtin Detention Centre in

WA have experienced considerable delays in meeting their Guardians (Case

Managers) for the first time. The responsibility lies with DIMIA to give

DCD and the On Arrival Accommodation sufficient notice of the refugee

child's expected release so that services and supports can be coordinated

and provided quickly and efficiently. It is important for the Guardian

to make contact with the child as soon as possible, as it is his or her

responsibility to give these refugee children the support, guidance and

care needed to thrive as they mature in Australia. As some of the unaccompanied

minors may have as little as 3 or 6 months before they turn 18 years old,

they will receive only limited assistance until they are required to be

independent. The length of time taken to allocate Guardians to these refugees,

as well as the subsequent lack of direct contact they have with the children,

indicates a pattern may have emerged in which this group of clients is

considered a 'low priority'.

  • security practices

    in detention

4. The impact

of detention on the well-being and healthy development of children, including

their long-term development.

There is ample documentation,

including from the Royal Australian College of Child Psychiatrists, and

from qualified practitioners and others who have worked with children

in detention, or observed them, that there are numerous harmful effects

of detention on children. Toddlers and small children are often fearful

and anxious; some children's development is below the expected level for

their age; some older children have attempted suicide or practised forms

of self-harm. It does not require great expertise or imagination to appreciate

the ill-effects of detention.

This would be so

for any children, but in the case of asylum seekers, the experience of

detention often exacerbates trauma they have already suffered in their

home countries or on the journey to Australia. Many have lost close relatives,

or witnessed violence, or lost their homes and possessions, or other distressing

events. The boat journey from Indonesia often entails perilous seas, overcrowding,

sickness and consequent terror. The parents of children in detention are

often demoralised and even depressed and this sometimes undermines their

capacity to give affection and comfort to their children. Moreover, the

restrictions on movement and other activities in the camps tend to inhibit

spontaneity between parents and children. Children sometimes witness the

humiliation of their parents, and may also observe their anger and frustration.

These and other experiences may result in children's respect for their

parents being compromised. Unaccompanied children are even more vulnerable

as they may have no one whom they love and trust in the camps.

We stress our view

that under no circumstances should children be held in detention, with

or without their parents.

We strongly urge

that all children in detention should be released into the community,

with their own parents, except is cases of demonstrable abuse or neglect.

Separation from their parents can only harm most children further.

Apart from the humanitarian

concerns, we believe it is in Australia's interests to act in the interests

of the long-term healthy development, adjustment, and contentment of refugee

children since many of them are likely to end up living in Australia.

5. The additional

measures and safeguards which may be required in detention facilities

to protect the human rights and best interests of all detained children.

It is difficult to

see how the human rights of asylum seekers can be ensured in detention.

While some measures may be taken to ameliorate conditions, detention itself,

particularly in remote, prison-like facilities. Ideally, all asylum seekers

should have their claims processed expeditiously; should detention be

considered unavoidable, it should be kept to a limited time, days or weeks,

rather than months. Detention should also be in centres that allow access

to people, services and facilities that can foster the well-being of the

detainees, the majority of whom have committed no crime and are bewildered

when they find themselves incarcerated in remote and inhospitable places.

Other countries, including our neighbour, New Zealand, have shown that

it is possible to have asylum seekers in the community without compromising

the security of their societies. The detrimental impact of detention for

both adults and children is well established and will have consequences

for the detainees, and also for Australia's reputation, and for harmonious

relations in our country.

6. 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.

Those who hold a

TPV must remain in Australia for 30 months until their application for

permanent residency can be processed. It is only when a permanent visa

is secured that a claim can be made to sponsor one's family to Australia.

It is a very difficult procedure to locate family members remaining in

Afghanistan, given the country's level of infrastructure and technology,

as well as the current political climate. It is also a distinct possibility

that some relatives remaining in the homeland may not still be alive.

This initial waiting period, when coupled with the average time it takes

to find someone, suggests that if successful, it may take 5 years for

the sponsored relative to get to Australia. In some cases there is little

hope for future reunification, so it is important to give refugees, especially

children the opportunity to settle in Australia, to facilitate their rapid

integration into the community, and where possible, to expedite reunion

with family members who can be brought to Australia.

Last

Updated 9 January 2003.