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Submission to National Inquiry

into Children in Immigration Detention from

World Vision Australia


Introduction

The

mandatory detention of child asylum seekers and other children arriving

in Australia without visas, and alternatives to their detention

Recommendations

Length

of detention

The

issue of separation from family

Alternatives

to 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

The

additional measures and safeguards which may be required in detention

facilities to protect the human rights and best interests of all detained

children

Critical

importance of children's participation in decisions

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


Introduction

As a major Australian

humanitarian aid agency and one with a longstanding commitment to advocacy

on children's rights around the world, World Vision Australia is very

concerned about the immediate and long-term effects on children who are

currently being detained in prison-like conditions in immigration detention.

World Vision Australia

fears that the current practice of detaining children could violate the

UN Convention on the Rights of the Child, the most widely ratified

Convention in the world. In addition, World Vision Australia does not

advocate separation of families, and believes that separation of child

asylum seekers from their families should only ever be as a last resort.

World Vision has

worked for nearly thirty years with refugees in many parts of the world,

starting with our work in the 1970s with VietNamese boat people through

'Operation Sea Sweep'. WV currently works with refugees in Indonesia (West

Timor and Maluku Islands), Democratic Republic of Congo, Afghanistan,

Israel/Palestine, Sierra Leone, Liberia, and many other parts of Africa,

Asia and Latin America. World Vision's work with refugee and internally

displaced children (including unaccompanied minors) has included provision

of direct care (e.g. clothing, food, health care, education, shelter),

and special provision such as trauma recovery counselling for children

who have been psychologically or emotionally damaged by traumatic experiences.

Our experience from

this work leads us to be concerned for the safety, well being and future

security of all refugees, especially children; our concern has not been

constrained by whether they have had the opportunity to apply for refugee

status at overseas diplomatic posts or have ventured to enter the country

without it.

World Vision acts

as an advocate for children's rights in the international arena, both

as an individual NGO and as part of coalitions including NGO committees

to the UN.

World Vision Australia

promotes peace, justice, freedom and opportunity for all. We seek to challenge

Australians' vision of their place in the world - in particular, of the

important role they can play in solving poverty [1] and

to help Australians continue to nurture a compassionate and courageous

outlook in the face of problems facing our rapidly-changing world. The

issue of asylum seekers has been reported in such a way as to provoke

fear and defensiveness among the Australian people, traditionally known

for their courage.

World Vision Australia

unequivocally recognises and supports the right of Australia to determine

immigration and refugee policies that are appropriate for our national

circumstances. These policies should reflect both our obligation to offer

sanctuary and support to the less fortunate, and our responsibility to

maintain a stable environment for our people. Australia has a proud history

of balancing these two goals effectively, building a strong and secure

nation while at the same time offering a home to more refugees proportionate

to population than most other countries of final destination for refugees.

World Vision Australia acknowledges difficulties governments have in identification

of nationality, but is concerned that this fine tradition be protected

and maintained.

According to UNHCR,

'Children, whether accompanied by parents or on their own, account for

as many as half of all asylum seekers in the industrialised world.' [2]

In Australia, children number 13.3% (365 [3] ) of the

2736 [4] people currently being held in detention. Several

thousand children have been held in immigration detention in Australia

since 1999. [5]

Child asylum seekers,

and children of asylum seekers, have already experienced dislocation from

their own countries, and in most cases dislocation from their original

communities; most have experienced conflict or socio-economic turmoil.

Australia as a compassionate nation should ensure that we do not add to

their trauma.

Against this background,

World Vision Australia believes it has some expertise to briefly address

Terms of Reference 2, 3, 5 and 6.

The UN Convention

on the Rights of the Child (CRC) is universal and non-derogable -

that is, its provisions can never be set aside under any circumstances.

The CRC provides the strongest protection for children of any legal instrument,

and should be taken alongside the 1951 Refugee Convention to determine

a government's response to children seeking status as refugees.

As stated in the

HREOC Background Paper 1 [6] , the CRC has four major

undergirding principles, which guide interpretation of the Convention

as a whole:

  • the best interests

    of the child

  • non-discrimination
  • participation
  • survival and

    development

In responding to

the Terms of Reference, WVA draws particularly on the principles of 'the

best interests of the child', and 'participation':

CRC Article 3(1)

In all actions concerning

children, whether undertaken by public or private social welfare institutions,

courts of law, administrative authorities or legislative bodies, the

best interests of the child shall be a primary consideration.

Article 12

1. States Parties shall

assure to the child who is capable of forming his or her own views the

right to express those views freely in all matters affecting the child,

the views of the child being given due weight in accordance with the age

and maturity of the child.

2. For this purpose, the

child shall in particular be provided the opportunity to be heard

in any judicial and administrative proceedings affecting the child, either

directly, or through a representative or an appropriate body, in a manner

consistent with the procedural rules of national law.

 

TOR

2:The mandatory detention of child asylum seekers and other children

arriving in Australia without visas, and alternatives to their detention

Comments on mandatory

detention

In the absence of

reasonable opportunities for public scrutiny of conditions under which

children are being detained, due partly to the remoteness of detention

centres (in both Australia and Pacific Island nations) and partly due

to lack of access for independent monitors including UNHCR, World Vision

Australia fears that the current practice of detaining children could

violate the UN Convention on the Rights of the Child, the most

widely-ratified Convention in the world, and by which Australia has also

agreed to be bound.

We note also that

the UNHCR Guidelines on Refugee Children holds that minors who

are asylum seekers should not be detained. [7]

Article 37 of the

CRC rules that children should be detained only as a last resort, whereas

Australia has been using mandatory detention as a first resort.

CRC Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or

degrading treatment or punishment. Neither capital punishment nor life

imprisonment without possibility of release shall be imposed for offences

committed by persons below eighteen years of age;

(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;

(d) Every child deprived of his or her liberty shall have the right to

prompt access to legal and other appropriate assistance, as well as the

right to challenge the legality of the deprivation of his or her liberty

before a court or other competent, independent and impartial authority

and to a prompt decision on any such action.

In contravention

of Article 40.2 (a), children are being held in detention who have broken

no international law. However there is a conflict between international

and Australia's national laws in this matter.

Furthermore, mandatory

detention implies that those, including children, seeking asylum are not

refugees - whereas the overwhelming evidence is to the contrary: the

majority are found, when eventually processed, to be deserving

of refugee status.

Assuming that asylum

seekers are not refugees can contravene protections guaranteed by the

1951 Refugee Convention. The practice also violates the fundamental legal

principle of 'innocent until proven guilty', also included in Article

40.2 (b, i):

CRC Article 40

1. States Parties recognize the right of every child alleged as,

accused of, or recognized as having infringed the penal law to be treated

in a manner consistent with the promotion of the child's sense of dignity

and worth, which reinforces the child's respect for the human rights and

fundamental freedoms of others and which takes into account the child's

age and the desirability of promoting the child's reintegration and the

child's assuming a constructive role in society.

2. To this end and having regard to the relevant provisions of international

instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having

infringed the penal law by reason of acts or omissions that were not

prohibited by national or international law at the time they

were committed;

(b) Every child alleged as or accused of having infringed the penal law

has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or

her, and, if appropriate, through his or her parents or legal guardians

and to have legal or other appropriate assistance in the preparation and

presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent

and impartial authority or judicial body in a fair hearing according to

law, in the presence of legal or other appropriate assistance and, unless

it is considered not to be in the best interest of the child, in particular,

taking into account his or her age or situation, his or her parents or

legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine

or have examined adverse witnesses and to obtain the participation and

examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision

and any measures imposed in consequence thereof reviewed by a higher competent,

independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot

understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the

proceedings. 3. States Parties shall seek to promote the establishment

of laws, procedures, authorities and institutions specifically applicable

to children alleged as, accused of, or recognized as having infringed

the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed

not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such

children without resorting to judicial proceedings, providing that human

rights and legal safeguards are fully respected.

4. A variety of dispositions, such as care, guidance and supervision orders;

counselling; probation; foster care; education and vocational training

programmes and other alternatives to institutional care shall be available

to ensure that children are dealt with in a manner appropriate to their

well-being and proportionate both to their circumstances and the offence.

Detention

conditions

Provisions for all

children seeking refugee status must comply with all rights set out in

the CRC. Special clauses relevant here include Article 37 (c) and (d),

shown on page 3 above, and Article 22:

CRC Article 22

1. States Parties shall take appropriate measures to ensure that

a child who is seeking refugee status or who is considered a refugee in

accordance with applicable international or domestic law and procedures

shall, whether unaccompanied or accompanied by his or her parents or by

any other person, receive appropriate protection and humanitarian assistance

in the enjoyment of applicable rights set forth in the present Convention

and in other international human rights or humanitarian instruments to

which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate,

co-operation in any efforts by the United Nations and other competent

intergovernmental organizations or non-governmental organizations co-operating

with the United Nations to protect and assist such a child and to trace

the parents or other members of the family of any refugee child in order

to obtain information necessary for reunification with his or her family.

In cases where no parents or other members of the family can be found,

the child shall be accorded the same protection as any other child permanently

or temporarily deprived of his or her family environment for any reason,

as set forth in the present Convention.

Prison-like conditions

are inappropriate for any human beings who have not committed a crime.

Even for children who come under the juvenile justice system (which child

asylum seekers do not), the CRC places limitations on the conditions under

which children can be detained. Prison-like conditions in the desert heat

are particularly inappropriate and inhumane, and especially for children.

The CRC affirms children's

right to appropriate education and to play, and to environments conducive

to their normal development. [8]

Recommendations:

  • That child asylum

    seekers or children of asylum seekers never be held in detention that

    resembles penal detention.

  • That the suitability

    of key current locations for processing of asylum seekers be examined,

    with regard to the mental and physical problems many refugee children

    are already experiencing by the time they complete long and hazardous

    journeys.

Length

of detention

Article 37 of the

CRC also states that children, if there is no alternative to detention,

be detained only for the shortest possible periods of time. The UNHCR

Guidelines on Protection and Care (of Refugee Children) echoes

this: 'Because detention can be very harmful to refugee children, it must

be used as a measure of last resort and for the shortest appropriate period

of time.' [9]

Delays in processing

their applications for asylum mean that children have been kept in detention

for long periods - often many months and in some cases years. The detention

of some children has been prolonged even further with the change of government

in Afghanistan and the need to await that government's establishment of

procedures.

We note the Australian

Government's claim that 'All efforts are made to ensure detention of children

is a last resort and for the shortest possible period', [10]

that '80% of all asylum claims are resolved within 18 weeks', the apparently

increasing practice of allowing children to attend local schools and recreational

activities outside the detention centres [11], and the

experimental release of girls, boys aged 12 and under, and women from

the Woomera Detention Centre. [12]

Recommendations:

  • That the Government

    take steps to speed up processing times for asylum seekers, to avoid

    compounding the distress and deprivation experienced by those separated

    for long periods from community life and support systems. Review and

    if necessary augment support services to those in processing within

    centres, to ensure optimum health, safety and well-being of centre residents

    who await outcomes.

  • That the Government

    facilitate public discussion following its assessment of the success

    or failures of the Woomera Alternative Detention Arrangements.

The

issue of separation from family

Unaccompanied children

require special care and support from States Parties to the CRC, as specified

in Article 20 and as the Government itself acknowledges. [13]

Article

20

1. A child temporarily or permanently deprived of his or her family

environment, or in whose own best interests cannot be allowed to remain

in that environment, shall be entitled to special protection and assistance

provided by the State.

2. States Parties shall in accordance with their national laws ensure

alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic

law, adoption or if necessary placement in suitable institutions for the

care of children. When considering solutions, due regard shall be paid

to the desirability of continuity in a child's upbringing and to the child's

ethnic, religious, cultural and linguistic background.

UNHCR and other governments,

such as the United States [14], have developed detailed

guidelines for dealing with children among asylum seekers.

The overwhelming

majority of children currently in detention in Australia are accompanied

by family members.[15] As the Government acknowledges

and as

provided in the CRC,

the best place for children is with their parents and/or siblings, except

in clear cases of family abuse of children.

Article 9

1. States Parties shall ensure that a child shall not be separated

from his or her parents against their will, except when competent authorities

subject to judicial review determine, in accordance with applicable law

and procedures, that such separation is necessary for the best interests

of the child. Such determination may be necessary in a particular case

such as one involving abuse or neglect of the child by the parents, or

one where the parents are living separately and a decision must be made

as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article,

all interested parties shall be given an opportunity to participate in

the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated

from one or both parents to maintain personal relations and direct contact

with both parents on a regular basis, except if it is contrary to the

child's best interests.

4. Where such separation results from any action initiated by a State

Party, such as the detention, imprisonment, exile, deportation or death

(including death arising from any cause while the person is in the custody

of the State) of one or both parents or of the child, that State Party

shall, upon request, provide the parents, the child or, if appropriate,

another member of the family with the essential information concerning

the whereabouts of the absent member(s) of the family unless the provision

of the information would be detrimental to the well-being of the child.

States Parties shall further ensure that the submission of such a request

shall of itself entail no adverse consequences for the person(s) concerned.

Recommendations:

  • That the Government

    develop and implement more detailed guidelines to ensure that such children's

    rights are fully and unconditionally affirmed, in line with the UNHCR

    Guidelines on Policies and Procedures in Dealing with Unaccompanied

    Children Seeking Asylum. [16]

  • That families

    with children who arrive as asylum seekers be permitted, after initial

    security clearance, to live as a family unit in the community. In World

    Vision Australia's view, only if the above is not acceptable, and only

    if the child and family are agreeable, the second best option would

    be for the child(ren) and one parent to be in the community, while the

    other parent remains in detention - provided there is regular access

    and private family time provided.

World Vision Australia

does not advocate separation of families; such separation should only

ever be as a last resort.

Alternatives

to detention

The Committee on

the Rights of the Child has emphasised the importance of States finding

alternatives to the detention of children.[17] While

World Vision Australia does not advocate a specific alternative model,

it is clear that numerous alternatives have been proposed or implemented

by civil society groups, and by governments including the Canadian [18]

and the Swedish governments. [19] While any one model

may not have all the answers, World Vision Australia believes that there

is considerable scope for creative alternatives to the system that Australia

has been using, that will be in line with humanitarian values and human

rights.

Recommendations:

  • That the Government

    consider the positive role that community groups, such as churches and

    other faith-based entities, could have in supporting asylum seekers,

    and provide such groups with adequate resources and guidelines to carry

    out such a support role effectively.

  • That any alternative

    entail basic welfare support by the Government; noting that on-shore

    asylum seekers are without government-funded benefits, are not permitted

    to work to support themselves and their children not permitted to attend

    school, pending the review of their asylum claims, a situation that

    compels them to rely completely on 'charity' (community and church support).

  • That the Government

    explore, in consultation with the community and civil society groups,

    alternative models to detention developed with the Australian context

    in mind. The Government could draw upon the model of the Integrated

    Humanitarian Settlement Strategy (IHSS), wherein community groups are

    supported to assist recognised refugees to settle in the community,

    to apply to asylum seekers.

TOR

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

TOR

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

World Vision Australia

notes the Australian Government's claim that it takes its "duty of

care to all detainees, especially children, very seriously", and

that it is aware of the best interests of the child. [20]

Critical

importance of children's participation in decisions

World Vision Australia

would argue, based on our experience working closely with children, that

what is in 'the best interests of the child' must be ascertained and clarified

by thorough consultation with the child him/herself, and secondarily by

consultation with the child's parent/s (or close family members if parents

are not present).

We note that the

Committee on the Rights of the Child suggests that child asylum seekers

be allowed to participate in their asylum hearing "and to express

their concerns" including through a "guardian mechanism".[21]

These children should have an interpreter and independent legal representation.

In line with Article

12 of the CRC, the right of children to be heard is paramount, regardless

of their age, in relation to all aspects of their situation as asylum

seekers. This includes questions ranging from conditions of detention,

deciding whether or not children should be placed in the care of an adult

from their own community of origin, within a detention facility, or with

a foster family externally, or whether the child's two parents should

be separated.

In diverse settings

from Cambodia, Myanmar and the Philippines, to Colombia, World Vision

Australia has found that when children are allowed to enjoy their right

to participate and express their opinions in matters concerning them,

they provide adult decision-makers with important guidance. [22]

Recommendation:

  • That the Government

    implement procedures to ensure that children are consulted fully, and

    those consultations inform the policy and practices, in relation to

    all aspects of their status as asylum seekers.

TOR

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

World Vision's experience

working directly with children during and after situations in which they

were refugees or displaced, indicates that the trauma experienced by the

children often has long-term consequences. In addition, any disruption

to their normal education needs remedial attention afterwards.

Recommendation:

  • For traumas and

    disruptions arising specifically from the period in detention, the Australian

    Government bear a special responsibility and duty of care to assist

    these children, and those in the Australian community who will be called

    upon to help them, well into the future.


1. Island

Nation or Global Citizen? Challenging Australia's World Vision, World

Vision Australia, 2001.

2. http://www.unhcr.ch/children/glance.html

3. February

2002. http://www.immi.gov.au/detention/women.htm

4. November

2001. http://www.immi.gov.au/facts/82detention.htm#3

5. http://www.humanrights.gov.au/human_rights/children_detention/background/introduction.html

6. http://www.humanrights.gov.au/human_rights/children_detention/background/introduction.html#convention

7. UNHCR,

Revised Guidelines on applicable Criteria and Standards Relating to the

Detention of Asylum-Seekers, (UNHCR Guidelines on Detention) Introduction,

Guideline 6 (1999), at http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

8. Articles

27 and 28 and throughout the text of the CRC.

9.UNHCR,

Refugee Children: Guidelines on Protection and Care (1994), chapter 7,

at http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

10. Philip

Ruddock, Minister for Immigration, 'Women and Children in Detention',

at http://www.minister.immi.gov.au/detention/women_&_children.htm,

accessed 6 March 2002.

11. For

examples, see http://www.minister.immi.gov.au/detention/facilities.pdf

12. 'Woomera

Alternative Detention Arrangements', see http://www.immi.gov.au/facts/83woomera.htm

13. Philip

Ruddock, Minister for Immigration, 'Women and Children in Detention',

at http://www.minister.immi.gov.au/detention/women_&_children.htm,

accessed 6 March 2002.

14. The

Immigration and Naturalization Service's Guidelines for Children's Asylum

Claims, discussed in Protecting the Rights of Children: The Need for US

Children's Asylum Guidelines, Women's Commission for Refugee Women and

Children, New York, December 1998. Full text published online at http://www.womenscommission.org/reports/reports.html

15. Of

365 children in detention, 13 are unaccompanied minors. February 2002.

http://www.immi.gov.au/detention/women.htm

16. UNHCR,

1997.

17.http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

18. In

Canada, detention has been the exception rather than the rule; hence the

controversy when in the summer of 1999, around 130 Chinese children, who

arrived without their parents on four boats on the country's west coast,

were detained. http://www.unhcr.ch/children/david-goliath01.html

19.We

understand that of the 17,000 asylum seekers in Sweden, 10,000 reside

outside detention centres, in group homes in the community; children are

only detained for a maximum of seven days. http://www.amnesty.org.au/airesources/docs/refugee/alternatives.pdf

20.http://www.immi.gov.au/detention/women.htm

21.http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

22. In

Cambodia, children's opinions on the issue of child sex tourism have helped

to reform local, national and international policy on the issue. In Myanmar,

children's own input as to what they consider appropriate forms of discipline

are being drawn upon in efforts to help eliminate physical abuse. In the

Philippines, children are directly engaging with policy makers and leaders

at municipal, regional and national level to ensure that children's voices

are being considered on critical issues such as child labour. In Colombia,

child peacebuilders are striving to counter endemic violence.

Last

Updated 9 January 2003.