Commission Website: National Inquiry into Children in Immigration Detention
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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.