National Inquiry into Children in Immigration Detention - Background Paper 7: Legal Status
National Inquiry into Children in Immigration Detention
Background Papers Index
Background Paper 7: Legal
Status
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.
Article
22, Convention on the Rights of the Child.
In this Background
Paper
- National
Inquiry into Children in Immigration Detention
- Legal
status of child asylum seekers
- Determining
the refugee status of children
- Assessing
a child's claim
- Unaccompanied
children: assessment and guardianship
- After
status determination
- Questions
for submissions
1. National
Inquiry into Children in Immigration Detention
In November 2001,
the Human Rights Commissioner announced an Inquiry 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.
This Background Paper
provides an overview of international human rights standards on the legal
status of child asylum seekers that are relevant to the Inquiry. It is
intended as a reference and guide to individuals or organisations wishing
to make a submission to the Inquiry. It should be consulted where relevant,
but it is not necessary to refer to a Background Paper when making a submission.
For further information
about the Inquiry, general information on relevant international treaties
and standards and the material used in the Background Papers, see Background
Paper 1: Introduction. This and other Background Papers are available
on the Human Rights and Equal Opportunity Commission web site at http://www.humanrights.gov.au/human_rights/children_detention/background.html.
The term "child
asylum seeker" is used throughout the Background Papers. While the
focus in these papers is on children who have been detained when seeking
asylum in Australia, it is not intended to exclude other children who
have been detained. The Inquiry relates to any child who is, or who has
been, in immigration detention. "Child" refers to any person
under the age of 18.
Treaties,
Rules and Guidelines
Treaties
that have been ratified by Australia, such as the Convention on the
Rights of the Child, are binding on Australia in international law.
The implementation of treaty rights of people in Australia are monitored
by United Nations treaty bodies, such as the Committee on the Rights
of the Child or the Human Rights Committee.
The
fact that Australia has ratified a treaty does not automatically incorporate
it into Australian domestic law. Only when treaty provisions are incorporated
into Australian law do they create enforceable rights in Australia.
However, courts should interpret a law to be consistent with the provisions
of a treaty that Australia has ratified.
Other
international documents and instruments such as United Nations Rules,
General Comments by treaty bodies, United Nations High Commissioner
for Refugees guidelines, United Nations General Assembly Declarations
and publications by United Nations agencies are not binding on Australia
as a matter of international law. They are, however, persuasive in interpreting
treaties and contain goals and aspirations reflecting a consensus of
world opinion.
2. Legal
status of child asylum seekers
Child asylum seekers
who meet the definition of refugee under the Convention relating to
the Status of Refugees (the Refugee Convention) [1] are entitled to special legal status, in recognition of their need for
international protection. A consequence of refugee flight is that a child
will lose the protection of her or his State. Where a child cannot return
to her or his country, the only rights she or he preserves are those guaranteed
under international standards. The Refugee Convention does not specify
procedures for determining refugee status, [2] and each
State Party may develop its own judicial or administrative procedures
for determining whether a person meets the Refugee Convention requirements
for refugee status. These procedures should conform to the principles
in article 14 of the International Covenant on Civil and Political
Rights (ICCPR) [3]. Article 14 sets out what is required
of an effective process for assessing a person's claims to be a refugee
or to resist expulsion on the ground of risk to life or security of the
person (non refoulement, see discussion below). Article 14 provides
that everyone has the right to have the determination of her or his rights
in a suit at law made "in a fair and public hearing by a competent,
independent and impartial tribunal".
Child asylum seekers
who arrive unauthorised in Australia are defined as "unlawful non-citizens"
under the Migration Act 1958 (Cth) and in most cases are detained
until their refugee determination is complete.[4] If
a child is found to be a refugee he or she receives a temporary protection
visa and is released.[5] Those children whose asylum
claim is rejected remain in detention classified as "unlawful non-citizens"
until such time as they can be removed from the country. This underlines
the importance in Australia of a child's legal status and the procedures
to determine this status.
Other legal rights
may not accrue for child asylum seekers under domestic law until they
gain refugee status, although the Convention on the Rights of the Child (1989) (the Convention) prohibits discrimination in the enjoyment of Convention
rights on the basis of nationality or immigration status. [6]
All actions concerning
the child must be non-discriminatory (article 2), ensure the best interests
of the child (article 3) and enable the child to participate in decision
making affecting her or him (article 12). [7] It should
be noted that article 12(2) provides that the child is entitled "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". [8]
The Refugee Convention
The Refugee Convention
applies to children in the same way as adults. The two most important
principles of the Refugee Convention are the definition of a refugee and
the principle of non-refoulement. See Background
Paper 1: Introduction for an overview of the Refugee Convention.
The UNHCR is the
intergovernmental body which supervises the implementation of the Refugee
Convention. [9] The UNHCR has issued a series of guidelines
on the treatment of refugee and asylum seeking children. [10] These guidelines outline the manner in which refugee status determination
should proceed for child asylum seekers and how children should be treated
before and after status determination is completed.
The Convention on the Rights
of the Child
For a general discussion
of the Convention, see Background Paper
1: Introduction.
Article 22
The Convention provides
in article 22 that State Parties must ensure child asylum seekers receive
protection and assistance in the enjoyment of their rights.
The rights protected
in article 22 are not only Convention rights but those in other international
human rights or humanitarian instruments to which the State is party.
Article 22 thus imports a number of other human rights and humanitarian
treaties and instruments into the rights owing to child asylum seekers
under the Convention. Relevant treaties ratified by Australia include
the Refugee Convention. [11] The standards outlined
in these treaties are supplemented by additional instruments adopted by
the United Nations, outlined in Background
Paper 1: Introduction. In giving effect to the standards in these
treaties, Australia is also required to have regard to these secondary
standards.
Other Convention
rights
In determining the
legal rights of child asylum seekers, the Convention requires that in
all actions concerning the child, the "best interests" of the
child should be a primary consideration (article 3). Additionally, all
actions should respect the responsibilities, rights and duties of parents
and families to provide direction to a child in the exercise of her or
his rights (articles 5, 9 and 18), be non-discriminatory (article 2),
enable the child to participate in decision making affecting her or him
(article 12) and ensure the child's survival and development (article
6). See the discussion of these rights in Background
Paper 1: Introduction.
3. Determining
the refugee status of children
A
refugee is someone who "owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality
and is unable, or owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a nationality
and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling
to return to it."
Article
1.A.2, Convention relating to the Status of Refugees.
The
UNHCR has made it clear that "asylum seekers" benefit from
the same protections as "refugees" pending the determination
of their claims for refugee status. [12]
The definition of
a refugee in the Refugee Convention provides the grounds upon which decisions
can be made as to whether adults and children are refugees. Some States
have adopted a wider definition of refugee, while others have introduced
an additional humanitarian visa category to cover situations where an
individual may not fall within the Refugee Convention but may face serious
harm in another country and require international protection.
Such additional measures
may assist States in ensuring their non-refoulement obligations
under a number of international treaties, including article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) and articles 6 and 7 of the ICCPR, are capable
of being met. The non-refoulement obligation, which prohibits the
forcible return of any person to a country where she or he risk persecution
or serious harm, is a core legal obligation on Australia and arguably
a peremptory norm of international law.[13] In order
for Australia to fulfil its obligation of non-refoulement, a number
of positive actions are required, including the presence of an effective
procedure to determine the validity of an asylum seeker's claim to be
a refugee and of any risk of serious harm to the individual if returned
to a third country.[14] In Australia, asylum claims
which fall outside the scope of the Refugee Convention definition are
considered for non-refoulement risks only under a non-compellable, non-reviewable
Ministerial humanitarian discretion. [15]
The Inquiry will
examine the extent to which Australia's interpretation of the refugee
definition satisfies the requirements of article 22 of the Convention.
We welcome submissions on this point, including the implications of recent
policy and legislative changes to the Migration Act 1958 (Cth)
which has seen asylum seekers removed to third countries such as Nauru
and Papua New Guinea for refugee status determination.
4. Assessing
a child's claim
As an initial point
in the assessment of a child's claim for refugee status, the child should
have access to the State's territory and be allowed to make an asylum
application. In its Guidelines on Unaccompanied Children, UNHCR states
that because of an accompanied child's vulnerability:
[He or she]
should not be refused access to the territory and his/ her claim should
always be considered under the normal refugee determination procedure [16]
Before considering
the procedures to be used in determining a child's asylum claim, it is
also important to reiterate that the "best interests" of the
child requires that procedures be child friendly and take into account
children's specific needs. [17]
In its Guidelines
on Protection and Care, UNHCR states that the three basic methods for
determining refugee status are group determination, determination based
on an adult's claim, and determination based on the child's own claim. [18]
Group determination
usually involves large groups of asylum seekers from the same village
or locality in refugee camp situations in countries bordering the country
of origin and may not be an appropriate model for child asylum determination
in Australia.
Determination based
on an adult's claim usually refers to claims by the child's parents or
guardians under the Convention. Where a child is accompanied by one or
both parents, the principle of family unity applies and the dependent
child will be usually accorded the parent's status. [19]
Even if accompanied
by her or his parents, a child asylum seeker may also make an individual
claim, in which case the parents can be helpful in providing factual information
and helping the child with the procedures involved. [20] The Convention provides that the child should be enabled to participate
in such a decision-making process. [21] The Inquiry
welcomes submissions on the extent to which dependent children can make
independent asylum claims, when accompanied by their parents and when
unaccompanied and how Australia's determination procedures are currently
structured.
Refugee determination procedures
In its various Guidelines
concerning refugee children, [22] UNHCR has outlined
the necessary child asylum procedures which should be employed by States
Parties to the Refugee Convention and which are applicable to the Convention
by virtue of article 22.
The child should
have access to fair and swift asylum procedures. This may require child
cases being given priority, with appeals processed expeditiously. Minimum
procedural guarantees must include determination according to the provisions
of article 14 of the ICCPR [23] and "determination
by a competent authority, fully qualified in asylum and refugee matters;
where the age and maturity of the child permits, the opportunity for a
personal interview with a qualified official before any final decision
is made; and a possibility to appeal for a formal review of the decision". [24]
Depending on the
child's maturity, the child may need to be represented at interview by
an adult, possibly the guardian (where unaccompanied).[25] All children should have a qualified legal representative. [26] Interpreters and interviewers skilled and trained in refugee and children's
issues should conduct all interviews. [27] The interpreter
should have the same cultural background and mother tongue as the child
and should be trained in child development. [28] The
interviewers, including the decision-makers on the asylum claim, should
be specially trained and qualified for such duties, including in child
development and behaviour.[29] The problem of proving
refugee status is difficult in every assessment, but particularly that
of chidren. Accordingly, there should be a liberal application of the
principle of the 'benefit of the doubt'. [30]
Children "old
enough to understand what is meant by status determination" [31] should be informed of the process, their current status, what decisions
have been made and the possible consequences, to reduce anxiety and ensure
that poor expectations do not lead to the child falsifying information. [32]
The Inquiry will
consider how decisions concerning child asylum applications are reached
in Australia, from interviews on arrival in Australia, to interviews by
decision makers. We welcome submissions as to how decisions are reached,
whether and how child-friendly interview techniques are employed and the
extent to which the child is able to participate in hearings.
Refugee determination criteria
The child's individual
and family situation should be considered, in addition to the conditions
in the country of origin. It may be necessary to consider objective factors
in greater detail, depending on children's ability to express themselves
and the fact that children may manifest fears in different ways to adults. [33] The history, culture and background of the child
will be particularly important in making a decision.
Right to
legal assistance
A
legal representative or a guardian should be appointed immediately
to ensure that the interests of an applicant for refugee status who
is a minor are fully safeguarded,
UNHCR
Guidelines on Protection and Care, chapter 8. [34]
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.
Article
37 (d), Convention on the Rights of the Child. [35]
Child asylum seekers
should be afforded legal assistance to assist in their asylum applications. [36] Where they are detained, children also have the
right to legal assistance as outlined in article 37(d) of the Convention
and a number of international instruments. [37]
The child's right
to legal assistance can also be interpreted by reference to the requirement
of humane detention in article 37(a) of the Convention and article 10(1)
of the ICCPR. [38]
The Inquiry welcomes
submissions on the extent to which child asylum seekers are informed promptly
and effectively of their right to legal assistance and the extent to which
they are granted effective access to legal assistance in order to pursue
their asylum application and initiate other proceedings connected to their
immigration detention. [39]
Birth registration
and nationality
1.
The child shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and
as far as possible, the right to know and be cared for by his or her
parents.
2.
States Parties shall ensure the implementation of these rights in accordance
with their national law and their obligations under the relevant international
instruments in this field, in particular where the child would otherwise
be stateless.
Article
7, Convention on the Rights of the Child.
1.
States Parties undertake to respect the right of the child to preserve
his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference.
2.
Where a child is illegally deprived of some or all of the elements of
his or her identity, States Parties shall provide appropriate assistance
and protection, with a view to re-establishing speedily his or her identity.
Article
8, Convention on the Rights of the Child.
Where a child does
not have the protection of a State, the only rights she or he may be able
to claim are those guaranteed under international standards, such as the
Convention. As required by article 7 of the Convention and article 24
of the ICCPR [40], every child has the right to be registered
immediately after birth and has the right to acquire a nationality. Birth
registration is vital to record the child's existence and to trigger certain
rights, including rights which are dependent upon nationality.
UNHCR points out
that "statelessness is often caused by states' deliberate policies
not to confer nationality to children born to refugees." [41] Where the child has lost the protection of one State, but not gained the
protection of another, the child cannot exercise her or his rights under
the Convention. This illustrates why it is important that international
standards such as Convention rights are incorporated into local laws so
that children may continue to live dignified lives and exercise rights
on the basis of legal status.
Registration of children
should follow the same procedure applicable to nationals where possible,
to facilitate record keeping and tracing of families. [42] Parents or guardians should receive validated birth certificates.
5. Unaccompanied
children: assessment and guardianship
Assessment
By contrast with
child asylum seekers who arrive or are reunited with their parents, unaccompanied
children do not have the support of their family in making an asylum claim
and thus need special assistance.
Unaccompanied children
are defined as those children who are separated from their parents and
are not being cared for by an adult who by law or custom has responsibility
for the child. [43] Where adults are caring for the
child, or relatives of the child reside in the country of asylum, the
child should ordinarily stay with those carers for the duration of her
or his asylum claim. [44]
Otherwise, special
procedures, including specially trained persons, should identify unaccompanied
children on arrival at a port of entry or where they have been residing
in the country for some time. [45] Care should be taken
in confirming whether the child is an asylum seeker or not. Whereas the
child's parents or guardian can often confirm that a child is indeed an
asylum seeker, it may be necessary to presume that an unaccompanied child
who arrives in Australia is an asylum seeker. As UNHCR notes
Children often
do not leave their country of origin on their own initiative. They are
generally sent out by their parents or principal caregivers. 'If there
is reason to believe that the parents wish their child to be outside
the country of origin on grounds of their own well-founded fear of persecution,
the child him/ herself may be presumed to have such a fear'. [46]
Where the parents
of an unaccompanied child are located in another asylum country, it may
be possible to reunite the child with her or his parents before status
determination. However, any such course of action must have regard for
the best interests of the child (article 3), the principle of non-discrimination
(article 2) and the right of the child to express her or his views (article
12). [47] It may be necessary for a guardian to be appointed
where the child's degree of mental development and maturity requires it
and for a specially-constituted panel to adjudicate in such a case. [48] Where family tracing takes some time, the asylum procedure should be expedited
and a decision on the child's long-term best interests be made after a
decision on an asylum claim is reached and the child's family has been
traced.
Tracing of the child's
parents must commence immediately in conjunction with the services of
the National Red Cross Society in the country of asylum.[49] Extreme care should be taken to ensure confidentiality and not to place
families or relatives at risk in the country of origin. As both UNHCR
and the Committee on the Rights of the Child have stressed, the State
should not contact consular or diplomatic representatives of the country
of origin unless such risks are completely removed. [50]
Speedy decision-making
requires specific identification procedures for children, especially unaccompanied
children on arrival in the country of asylum. [51] Unaccompanied
children should be registered through interviews which collect basic biographical
data and social history. Where a child's age is in issue, he or she should
generally be given the benefit of the doubt. [52] The
child's dossier can be augmented over time and must accompany the child
where there is a transfer of her or his location or care arrangements,
thus ensuring the child's right to an identity (article 7). [53]
Guardianship
of unaccompanied children
The
guardian or adviser should have the necessary expertise in the field
of childcaring so as to ensure that the interests of the child are safeguarded,
and that the child's legal, social, medical and psychological needs
are appropriately covered during the refugee status determination procedures
and until a durable solution for the child has been identified and implemented.
To this end, the guardian or adviser would act as a link between the
child and existing specialist agencies/ individuals who would provide
the continuum of care required by the child.
UNHCR
Guidelines on Unaccompanied Children. [54]
The UNHCR recommends
that an independent and formally accredited organisation appoint a guardian
or adviser as soon as the unaccompanied child is identified.[55] The guardian/adviser would be charged with ensuring that the best interests
of the child are respected throughout the status determination procedure
and in all care and welfare decisions concerning the child.
The Committee on the Rights of the Child has suggested that a "guardian
mechanism" would allow children the right to be heard and ensure
that education and psychosocial assistance is given, particularly for
unaccompanied children. [56] In examining Finland's
periodic report to the Committee, it expressed concern that:
unaccompanied
minors applying for asylum are interviewed in the same way as adults.
Further, while noting with appreciation the establishment of a system
of representation for unaccompanied minors applying for asylum, [the
Committee] expresses its concern that not enough efforts have been undertaken
to ensure adequate resources and training for the representatives of
unaccompanied minors applying for asylum... [Finland should] ensure
adequate resources for the training of the officials who receive refugee
children, in particular on child interview techniques, and of the representatives
of unaccompanied minors applying for asylum . [57]
The newly-appointed
guardian should ensure the child's well being by advocating and liaising
with appropriate agencies, such as in the fields of welfare, health and
education. Where the child is detained, the guardian must guarantee the
child's well being and where necessary, challenge the child's detention
before a court or similar authority (article 37(d)). [58] Insofar as article 20 of the Convention provides that children deprived
of their family environment are "entitled to special protection and
assistance" and must be provided with alternative care, preferably
family based where there are no family members to care for them, the child's
guardian could be required to advocate for and ensure such protection
and assistance are received. [59]
The Inquiry welcomes
submissions on whether and how guardians are appointed for unaccompanied
children and how the guardian ensures the child's "best interests".
6. After
status determination
After a child has
been recognised as a refugee, the question arises as to what the next
steps should be. Where the child is accompanied by her or his parents
and family, the family unit should have the same legal status, to ensure
the principle of family unity. [60] Where the child
is unaccompanied, a decision will have to be made as to what is in her
or his medium and long-term best interests.
Medium and long term solutions
for the child
Child asylum seekers
recognised as refugees "must be considered as having, or being
able to acquire, including through naturalization, an effective nationality". [61] The Committee on the Rights of the Child has
requested State parties to:
provide information on the measures adopted pursuant to article
7, paragraph 2, to ensure the child's right to acquire a nationality,
in particular where the child would otherwise be stateless. Reference
should also be made to the implementation of this right in relation
to children born out of wedlock, and asylum-seeking and refugee children.
Please indicate the criteria applied for the acquisition of nationality
and whether the child is allowed to acquire the nationality of both
parents. [62]
Where the child is
accompanied by parents and family, the consequences of refugee status
recognition will normally be the family's local integration into the country
of asylum. The child's family may require a degree of assistance in integrating
into the local community, while the child will require a structured orientation
program [63] and should benefit from the same programs
available to other children in Australia by virtue of article 2 of the
Convention.
Where the child is
unaccompanied, a decision will need to be made as to whether she or he
should be locally integrated and placed in longer-term foster care, or
whether she or he should be reunited with her or his parents by being
resettled in a third country. [64] Any decision should
be made by an appropriate body and conform to the principles of articles
2, 3 and 12 of the Convention. The child's guardian or adviser should
be involved and a specially-constituted panel may need to adjudicate in
such a case. [65] The views of the child must be sought
and given due weight in accordance with her or his age and maturity. [66]
The child's right
to an identity, nationality and to develop to the maximum extent possible
(article 6) requires that where local integration is considered to be
in the best interests of the child, the child's legal status should be
such as to promote her or his long-term well-being. These principles have
implications for the temporary protection visa status which child asylum
seekers who arrive unauthorised in Australia receive, upon recognition
of refugee status. The Inquiry welcomes submissions on this issue and
will consider the extent to which this visa status is in the best interests
of the child and the extent to which it conforms to the principle of non-discrimination
and the child's right to acquire a nationality.
Where a child's asylum
claim is rejected, she or he faces deportation from the country. Before
deportation, however, efforts should be made to ensure the child has a
proper transition to life in the country of origin.[67] This may require the State party ensuring its non-refoulement obligations
are satisfied and that all records and dossiers regarding the child (for
example health), with the exception of notes on the asylum claim, are
transferred to the relevant authorities in the home country, with the
child's consent.
Where the child is
unaccompanied, return to the country of origin should not proceed until
a suitable care-giver such as a parent, other relative, other adult care-giver,
a government agency or a child-care agency in the country of origin has
agreed and is in a position to take responsibility for the child and to
provide her or him with the appropriate care and protection. Counselling
should occur prior to return and the child should be encouraged to communicate
first with her or his family. The returning country should consider using
the assistance of international agencies, including the establishment
of panels, comprised of government departmental and non-government agencies.
Family union should normally be seen as being in the best interests of
the child in such decisions, but where these principles are incompatible,
the best interests of the child must remain a primary consideration. [68]
Detained children
whose asylum claims have been rejected or children who did not claim asylum
but who are detained on visa grounds are still covered by the Convention's
provisions while they remain in Australia. The Committee on the Rights
of the Child has clarified that articles 2 and 3 of the Convention require
that these children must enjoy all the rights enshrined in the Convention
regardless of current status:
The Committee
is concerned about the application of the law and policy concerning
children seeking asylum, including unaccompanied children. It is particularly
concerned that unaccompanied minors who have had their asylum request
rejected, but who can remain in the country until they are 18 years
old, may be deprived of an identity and denied the full enjoyment of
their rights, including health care and education. Such a situation,
in the view of the Committee, raises concern as to its compatibility
with articles 2 and 3 of the Convention. [69]
The Inquiry welcomes
submissions on the treatment of rejected child asylum seekers and other
children in immigration detention and the extent to which their rights
under the Convention are respected.
7. Questions
for submissions
The following questions
may assist organisations and individuals in making submissions to the
Inquiry.
- How does Australia
determine the refugee status of children? Do its procedures satisfy
international standards? Are its procedures child-friendly?
- What procedures
are in place to ensure registration and access to procedures for child
asylum seekers on arrival? Do these procedures differ for unaccompanied
children?
- What guardianship
and care arrangements are in place for detained children?
- What is the
effect of temporary protection visa status on children's right to acquire
a nationality and for their long-term development and integration?
- What in your
experience is the impact of detention on the refugee status determination
procedure for children? Can you support this view with evidence?
- To what extent
are interpreters and legal representatives used? How do decision-makers
interview children? Are children able to apply for asylum separately
from their family?
- For unaccompanied
children, how do port officials decide a child is an asylum seeker?
How are the child's views taken into account? Is there a guardian appointed?
When? How does the guardian ensure the child's "best interests"?
- To what extent
are the international standards on child asylum seekers met in Australia
today?
- What are the
relevant legislative, administrative and other measures in place to
ensure child asylum seekers receive the protection and care they need?
Where are the gaps?
ENDNOTES:
Including the Convention's 1967 Protocol. The 1967 Protocol lifted the
temporal and geographic restrictions of the 1951 Convention, making the
Convention applicable to all refugee situations post-1951.
The UNHCR has developed criteria to guide individual states. See UNHCR
(1992), Handbook on Procedures and Criteria for Determining Refugee
Status (UNHCR Handbook), Geneva.
Article 14(1), ICCPR provides: "All persons shall be equal before
the courts and tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. The press and the public may
be excluded from all or part of a trial for reasons of morals, public
order (ordre public) or national security in a democratic society, or
when the interest of the private lives of the parties so requires, or
to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice;
but any judgement rendered in a criminal case or in a suit at law shall
be made public except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the guardianship
of children." See submission by Human Rights and Equal Opportunity
Commission to the Senate Legal and Constitutional Legislation Committee
Submission on Migration Legislation Amendment (Judicial Review) Bill
1998.
See s14, Migration Act 1958 (Cth). This practice, however, is currently
challenged by government policy of removing adult and child asylum seekers
who arrive unauthorised to third countries for processing; see below.
The detention of child asylum seekers under international standards is
discussed in Background Paper 8: Deprivation
of Liberty and Humane Detention.
See s189 and s196, Migration Act. Temporary protection visas were
introduced in 1999 and are provided to those who meet the definition of
a refugee in s36 of the Act but who arrived in Australia without authorisation.
Article 2, Convention.
See Background Paper 1: Introduction.
This is the right of all children "capable of forming views",
emphasising that very young children should have the formal right to be
heard; the Convention sets no minimum age. See UNICEF (1998), Implementation
Handbook for the Convention on the Rights of the Child (UNICEF Implementation
Handbook), UNICEF, New York, pp 150-167.
Article 35, Refugee Convention.
These include UNHCR (1988), Guidelines on Refugee Children; UNHCR
(1994) Refugee Children: Guidelines on Protection and Care (UNHCR
Guidelines on Protection and Care); UNHCR (1997) Guidelines on Policies
and Procedures in dealing with Unaccompanied Children Seeking Asylum (UNHCR Guidelines on Unaccompanied Children); UNHCR (1999) Revised
Guidelines on applicable Criteria and Standards relating to the Detention
of Asylum-Seekers (UNHCR Guidelines on Detention); Save the Children/
UNHCR (2000), "Statement of Good Practice" of the Separated
Children in Europe Programme.
Other relevant treaties include the ICCPR (1966), the International
Covenant on Economic, Social and Cultural Rights (ICESCR) (1966),
the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD) (1965), the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984)
and the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) (1979).
See UNHCR Guidelines on Protection and Care, ch 7: "The term refugee
mentioned herein includes a person in need of international protection,
regardless of the legality or illegality of her or his status in the country
of refuge and whether or not refugee status has been recognized formally.
This includes asylum-seekers whose claim to refugee status have not been
definitively evaluated and other persons of concern to the High Commissioner's
Office". See also Introduction to the UNHCR Guidelines on Detention
which elaborates the provisions of article 31 of the Refugee Convention:
"This provision applies not only to recognised refugees but also
to asylum-seekers pending determination of their status, as recognition
of refugee status does not make an individual a refugee but declares one
to be".
See article 33(1), Refugee Convention; article 3(1), CAT; articles
6 and 7, ICCPR; articles 6, 22 and 37(a), Convention. For peremptory
norms, see article 38(1)(b) of the Statute of the International Court
of Justice which provides: "The Court.. shall apply: international
custom, as evidence of a general practice accepted as law".
Joint Standing Committee on Migration (1994), Asylum, Border Control
and Detention, Australian Government Publishing Service, page 55;
Senate Legal and Constitutional References Committee (2000), A Sanctuary
under Review: An Examination of Australia's Refugee and Humanitarian Determination
Process, Cth, June 2000, p60; G Goodwin-Gill (1996), The Refugee
in International Law, 2nd ed, Clarendon Press, p90.
See s417 of the Migration Act. This discretion can only be exercised
after review of the asylum seeker's case by the Refugee Review Tribunal.
UNHCR Guidelines on Unaccompanied Children, para 4. See also Executive
Summary to the Guidelines: "Authorities at ports of entry should
take necessary measures to ensure that unaccompanied children seeking
asylum admission to the territory are identified as such promptly and
on a priority basis".
An outline of child friendly procedures can be found in UNHCR Guidelines
on Unaccompanied Children, discussed below.
UNHCR Guidelines on Protection and Care, ch 8.
See UNHCR Handbook, paras 181-188. See UNHCR Guidelines on Protection
and Care, ch 8.
See UNHCR Guidelines on Protection and Care, ch 8.
Article 12, Convention.
UNHCR Guidelines on Protection and Care, ch 8; UNHCR Guidelines on Unaccompanied
Children.
Outlined above.
UNHCR Guidelines on Unaccompanied Children, para 8.2.
UNHCR Guidelines on Unaccompanied Children, para 8.3.
UNHCR Guidelines on Unaccompanied Children, para 8.3. See also relevant
rules under the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, the Standard Minimum Rules for the Treatment
of Prisoners (the Standard Minimum Rules) and the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment (the Body of Principles) discussed below.
UNHCR Guidelines on Unaccompanied Children, para 5.12 and 8.4.
UNHCR Guidelines on Unaccompanied Children, para 5.12.
UNHCR Guidelines on Unaccompanied Children, paras 8.1-8.10.
See UNHCR Guidelines on Protection and Care, ch 8. The standard of proof
'benefit of the doubt' is outlined in UNHCR's Handbook, at paras 203-204.
UNHCR Guidelines on Protection and Care, ch 8.
UNHCR Guidelines on Protection and Care, ch 8.
UNHCR Guidelines on Unaccompanied Children, paras 8.6-8.10.
See also UNHCR Guidelines on Unaccompanied Children, para 8.3, quoted
below.
Discussed in Background Paper 8: Deprivation
of Liberty and Humane Detention.
See UNHCR Guidelines on Unaccompanied Children, para 8.3, cited above,
which provides: "Not being legally independent, an asylum-seeking
child should be represented by an adult who is familiar with the child's
background and who would prow his/ her interests. Access should also be
given to a qualified legal representative. This principle should apply
to all children, including those between sixteen and eighteen, even where
application for refugee status is processed under the normal procedures
for adults".
Rule 18 of the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty provides: "The conditions under which
an untried juvenile is detained should be consistent with the rules set
out below, with additional specific provisions as are necessary and appropriate,
given the requirements of the presumption of innocence, the duration of
the detention and the legal status and circumstances of the juvenile.
These provisions would include, but not necessarily be restricted to,
the following: (a) Juveniles should have the right of legal counsel and
be enabled to apply for free legal aid, where such aid is available, and
to communicate regularly with their legal advisers. Privacy and confidentiality
shall be ensured for such communications". Rule 94 of the Standard
Minimum Rules provides for treatment "not less favourable than that
of untried prisoners". Rule 93 provides, for both untried prisoners
and, by operation of Rule 94, that both child and adult asylum seekers
in immigration detention should have a general right of access to legal
advisers: "For the purposes of his defence, an untried prisoner shall
be allowed to apply for free legal aid where such aid is available, and
to receive visits from his legal adviser with a view to his defence and
to prepare and hand to him confidential instructions." The Body of
Principles is more explicit and unambiguous in the obligations which it
places upon governments. Principle 17 states "A detained person shall
be entitled to have the assistance of a legal counsel. He shall be informed
of his right by the competent authority promptly after his arrest and
shall be provided with reasonable facilities for exercising it."
Article 37(c), Convention, provides: "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." This provision corresponds to article
10(1) of the ICCPR, which has been interpreted by the Human Rights Committee
to require positive "concrete" measures be taken by State Parties
to monitor the effective application of the rules outlined in the Standard
Minimum Rules and the Body of Principles, including ensuring detainees
have access to information about the rules and effective legal means enabling
them to ensure that the rules are respected and to complain if they are
ignored, General Comment 21, Replaces general comment 9 concerning
humane treatment of persons deprived of liberty (Art. 10), paras 6
and 7; Human Rights Committee, General Comment 21, 10 April 1992. Humane
detention is discussed in Background Paper
8: Deprivation of Liberty and Humane Detention.
See also the Human Rights and Equal Opportunity Commission (2000), Report
of an Inquiry into a Complaint of Acts or Practices Inconsistent With
or Contrary to Human Rights in an Immigration Detention Centre, HRC
Report No. 12, available at http://www.humanrights.gov.au/human_rights/human_rights_reports/hrc_report_12_april.html.
See Human Rights Committee, General Comment 17 on Article 24, UN Doc.HRI/GEN/1/REV.2,
7 April 1989, para 7 "this provision should be interpreted as being
closely linked to the provision concerning the right to special measures
of protection and it is designed to promote recognition of the child's
legal personality".
UNHCR Guidelines on Protection and Care, ch 8, where UNHCR states that
it has particular responsibilities for stateless persons. Australia is
a party to the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961).
UNHCR Guidelines on Protection and Care, ch 8.
See UNHCR Guidelines on Unaccompanied Children, para 3.1. See also article
5 of the Convention which defines family broadly. Unaccompanied children
are entitled to "special protection and assistance provided by the
State" under article 20(1) of the Convention.
See UNHCR Guidelines on Unaccompanied Children, Annex Two.
UNHCR Guidelines on Unaccompanied Children, paras 5.1-5.3.
UNHCR Guidelines on Unaccompanied Children, para 8.9, citing para 218
of the UNHCR Handbook.
See Background Paper 1: Introduction,
for a discussion of these principles.
See UNHCR Guidelines on Unaccompanied Children, paras 5.4-5.5; 97. See
too UNHCR (1996) Working with Unaccompanied Children: A Community-Based
Approach, Geneva.
Articles 22(2), 10(1), Convention. See too UNHCR Guidelines on Unaccompanied
Children, para 5.17.
See Committee on the Rights of the Child in its Concluding Observations
to Spain in 1994:
"The Committee is worried about one aspect of the treatment of unaccompanied
minors seeking refuge which may contradict the principle that each case
be dealt with on an individual basis and on its own merits. The practice
of automatically informing the authorities of their country of origin
may lead to their persecution, or the persecution of their relatives,
for political reasons"; Committee on the Rights of the Child, Concluding
Observations of the Committee on the Rights of the Child : Spain.,
UN Doc CRC/C/15/Add.28, 24 Oct 1994, para 9. See UNHCR Guidelines on
Unaccompanied Children, para 5.16; UNHCR (1994), Guidelines on
Protection and Care, ch 8. Article 37(d) is discussed in Background
Paper 8: Deprivation of Liberty and Humane Detention.
UNHCR Guidelines on Unaccompanied Children, paras 3-6.
UNHCR Guidelines on Unaccompanied Children, para 5.11; see also ch 8.
See article 7, Convention. See also UNHCR Guidelines on Unaccompanied
Children, paras 5.6, 5.9.
UNHCR Guidelines on Unaccompanied Children, para 5.7
UNHCR Guidelines on Unaccompanied Children, para 5.7.
Committee on the Rights of the Child, Concluding Observations of the
Committee on the Rights of the Child : Norway, UN Doc CRC/C/15/Add.126,
28 June 2000, paras 48-52.
Committee on the Rights of the Child , Concluding Observations of the
Committee on the Rights of the Child : Finland, UN Doc CRC/C/15/Add.132,
16 Oct 2000, paras 51-52.
UNHCR Guidelines on Unaccompanied Children, paras 6-7.
Article 2, Convention, provides:
"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 Guidelines on Protection and Care, ch 8.
UNHCR Guidelines on Protection and Care, ch 8.
Committee on the Rights of the Child, General Guidelines Regarding
the Form and Contents of Periodic Reports to be Submitted by States Parties,
adopted by the Committee on the Rights of the Child on 11 October 1996,
Part V111B(2), UN Doc CRC/C/58, 20 Nov 1996, para 53.
UNHCR Guidelines on Unaccompanied Children, paras 10.2-10.4.
UNHCR Guidelines on Unaccompanied Children, para 9.1
See UNHCR Guidelines on Unaccompanied Children, paras 5.4-5.5; 9.7.
Article 12, Convention.
UNHCR Guidelines on Unaccompanied Children, paras 9.2-9.7
UNHCR Guidelines on Unaccompanied Children, paras 9.4-9.8.
Committee on the Rights of the Child, Concluding Observations of the
Committee on the Rights of the Child : Belgium, UN Doc CRC/C/15/Add.38,
20 June 1995, para 9. See also the Committee's comments to Denmark: "The
Committee notes that all children who have had their asylum requests rejected
but who remain in the country have had their rights to health care and
education provided de facto but not de jure. It is the view of the Committee
that this situation is not fully compatible with the provisions and principles
of articles 2 and 3 of the Convention", Concluding Observations
of the Committee on the Rights of the Child : Denmark, UN Doc CRC/C/15/Add.33,
15 Feb 1995, para 14. See too the comments to Finland: "It also encourages
the State party to consider measures through which asylum-seeking and
refugee children can be granted equal access to the same standard of services,
in particular education, irrespective of who they are and where they live." Concluding Observations of the Committee on the Rights of the Child
: Finland, UN Doc CRC/C/15/Add.132, 16 Feb 2000, para 52.
