Complaints

Search

Young people seeking asylum – protecting their rights in Australia

Children's Rights

 

 

Young people seeking asylum – protecting their rights in Australia

 

Practitioners Workshop, ‘Improving Services for Unaccompanied Minors & Young People Seeking Asylum’

CHECK AGAINST DELIVERY
 

1. Acknowledgments

Thank you, Pino, for your introduction. Thank you also to Australian Red Cross for the invitation to speak on this panel today.

I acknowledge the traditional custodians of the land on which this meeting takes place and pay my respects to elders past and present.

2. Introduction

The Australian Human Rights Commission has a long history of raising concerns about people in immigration detention and asylum seekers. As National Children’s Commissioner, I work collaboratively within the Commission to protect the rights of child asylum seekers and unaccompanied minors in particular.

In the time I have today, I thought I would speak briefly about my role, and the current work of the Commission, to protect the rights of child refugees and asylum seekers.

I would also like to examine the key principles laid out in international human rights law, which provide guidance on how we should be treating unaccompanied minors and young asylum seekers.

3. The work of the National Children’s Commissioner

As National Children’s Commissioner, I have a responsibility to promote the rights of all children in Australia. However, the legislation which governs my appointment - the Australian Human Rights Commission Act - allows me to pay particular attention to vulnerable groups of children. This includes children in immigration detention in Australia and refugee and asylum seeker children living in the community.

Underpinning all of my work is the Convention on the Rights of the Child – the CRC - which is the key international human rights treaty for children, agreed to by Australia and most nations of the world.

One of my early priorities has been to conduct a listening tour – called the Big Banter – which I began in April and which formally ended in September. This early priority reflects a Guiding Principle of the CRC, set out in article 12, which is children’s right to express their views and have these taken into account in decisions which concern them.

During The Big Banter I visited city and country areas in each state and territory, holding targeted focus groups with diverse groups of children, children’s advocates and with government. I spoke face to face with over 1000 children and young people (and some key adults); a further 726 children filled out surveys; and 602 children sent me postcards. They told me:

  • what is important to them
  • which rights are important to them
  • what makes them happy
  • and what I could do to make life better for children in Australia.

A number of children I came across on the Big Banter came to Australia as refugees. As noted by one ten year old boy at an Out of School Hours Care service:

I want to be a pilot and I think that everyone should have a plane. I think everyone should be free of war and Australia is my home.

I also spoke to some young people at a community legal service in Melbourne and a settlement school in Brisbane about their experiences as minors in detention, in care placements and in the community, in completing their education, experiencing racism, finding work, and applying for family reunification. They expressed their confusion over the variety of systems and rules that had emerged over the years, the traumatic nature of their background stories, and their anxiety about their futures and those of their families.

As some of you will know, I also visited unaccompanied minors in Pontville in Tasmania - an ‘alternative’ place of detention (APOD) for unaccompanied minors seeking asylum in Tasmania.

At the time of my visit to Pontville there were around 250 boys detained there. Some of the boys’ chief concerns were to do with their length of detention, when they would be released into community detention and mental health issues. A number had been in detention for more than six months. Those who had been there for prolonged periods presented with significant anxiety, depression and feelings of hopelessness.

They also raised concerns about the gaol-like environment, difficulties at school, excursions, phones and clothing, among other things.

Some of their words were:

Even if you make this place heaven it is not enough for us because we feel like we are in a cage. We feel people see us like animals in a cage.

Four months we have been staying here. Our request is they should get us out of here when we are fit and healthy, not when we are crazy.

We stay up all night and sleep all day. We don’t want to go to school because it upsets us to see others free.

At school people stare and laugh at us which makes us feel sad.

We are fed up with people telling us we are going to get out. We don’t mind living on the street, we just want to get out.

It saddened me to hear from these children and young people about their fear and uncertainty, and distress at ongoing detention.

Fortunately, a couple of months after the visit, all the boys were released from Pontville into the community.[1]

The issues raised by children and their advocates during the Big Banter will help to establish my priorities for future work. Five key themes have emerged to date:

  • A right to be heard
  • Freedom from violence, abuse and neglect
  • The opportunity to thrive
  • Engaged citizenship
  • Action and accountability

While all the themes have relevance for unaccompanied minors and young asylum seekers, the opportunity to thrive is especially significant. The UN Committee on the Rights of the Child, among others, have highlighted that there are groups of children, identifiable by race, immigration status, geographic location, and disability, who fare far worse and who do not enjoy the same opportunity to thrive as other children in Australia.

I will be discussing these themes in my first statutory report to parliament, which will be launched in a few weeks.

4. Australian Human Rights Commission work on child asylum seekers

As part of a collegiate body at the Australian Human Rights Commission, I also have opportunities to undertake collaborative work with the President and the Commission in the area of immigration detention and asylum seekers.
Many of you will be aware of the Commission’s past work, including A last resort?: a national inquiry into children in immigration detention in 2004. This inquiry recommended, in line with the provisions of the CRC, that children should only be placed in immigration detention as a last resort and for the shortest appropriate period of time.

The Commission also has

  • conducted regular visits to immigration detention facilities and published reports on the conditions in those facilities
  • made submissions to inquiries into proposed and existing legislation (such as the Migration (Regional Processing) package of legislation)
  • intervened in court proceedings that involve children’s rights issues (for example cases on the guardianship of unaccompanied children and the power to detain under the Migration Act)
  • resolved individual complaints about breaches of human rights, including from children and their families in immigration detention.

Most recently, the Commission released its Asylum seekers, refugees and human rights: a snapshot report 2013, which highlights the significant gap between Australia’s human rights obligations under international law and our current treatment of asylum seekers and refugees (available on our website at www.humanrights.gov.au).

Among other concerns, the snapshot shows that despite the welcome release of children into community detention over the past few years, a large number of children are still detained in immigration facilities.

It also shows that between 1 January 2013 and 14 August 2013 there were reports of 50 incidents of actual self-harm and 49 incidents of threatened self-harm at Pontville.[2]

According to Department of Immigration and Border Protection figures, on 31 October there were 1045 children in closed immigration detention facilities in Australia.[3]

And while figures on the numbers of unaccompanied minors in immigration detention are not published regularly by the Department, it reported at the recent Senate Estimates hearings that there were 82 unaccompanied minors in closed immigration detention facilities in Australia, as of 15 November. [4]

The Commission has, on a number of occasions, welcomed the government’s use of community-based alternatives to closed detention for children and their families. On 31 October there were 1770 children (unaccompanied or with their family) living in the community after being approved for a residence determination.[5]

There is no doubt that community detention – the most likely alternative to detention for children and their families – is better for the welfare of children and unaccompanied minors than detention in closed facilities.

Community alternatives are more closely aligned with international human rights law and standards and provide more humane treatment. Children in community detention are also exposed to fewer risks to health, mental health and safety and have an opportunity to be part of Australian community life.

When the Commission visited people in community detention, for its 2012 report on ‘Community arrangements for asylum seekers, refugees and stateless persons’, the majority interviewed felt that the arrangements were far preferable to being held in detention.

A 16 year old unaccompanied Afghan asylum seeker told the Commission:

When we are here, we go to school – it is better than detention; we can go outside; go shopping; buy things; catch a train by ourselves; have activities.

However, it was evident from the Commission’s visits and interviews that opportunities for self-reliance and meaningful activities were critical to rebuilding resilience for asylum seekers and their families.

The Commission recommended a uniform model of community assessment and placement for all asylum seekers, including features essential for child well-being, such as:

  • opportunities for attending English language classes, and enrolment in vocational training
  • access to essential health care and counselling
  • full access to formal education for school-aged children.[6]

I look forward to discussing further ways that the current systems of detention, and visas can better meet the needs of unaccompanied minors and young people.

5. Key international guidelines on protecting the human rights of children and young people seeking asylum

The international human rights system provides some guidance on how Australia should fulfil its obligations to children and young people who come here seeking asylum, and those who end up in immigration detention.

For children, the CRC is the most comprehensive of the international treaties ratified by Australia, as it incorporates most of the provisions of the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights. It has specific provisions that relate only to children, and a provision that relates to asylum seeker and refugee children in particular.

Some of the most relevant rights for children who are seeking asylum or who are in immigration detention are that:

  • the best interests of the child must be a primary consideration in all actions concerning children (article 3(1))
  • detention must be a measure of last resort and for the shortest appropriate period of time; children must not be deprived of liberty unlawfully or arbitrarily (article 37(b)
  • children in detention have the right to be treated with humanity and respect for the inherent dignity of the person (article 37(a), (c))
  • children have the right to enjoy, to the maximum extent possible, development and recovery from past trauma (articles 6(2), 39)
  • asylum-seeking and refugee children are entitled to appropriate protection and assistance (article 22(1)).

Other important aspects of the CRC include the right to

  • express views(article 12)
  • be protected from physical or mental violence (article 19)
  • a high standard of physical and mental health (article 24)
  • education (articles 28 and 29)
  • culture, language and religion (article 30)

UN Guidelines and the General Comments of treaty committees are useful tools to interpret these treaty provisions.

For example, the 1997 UNHCR Guidelines on policies and procedures in dealing with unaccompanied children seeking asylum state that:

  • unaccompanied children seeking asylum should not be refused access to the territory
  • unaccompanied children should not be placed in detention. If they are, then living quarters must be suitable and the facilities should not be located in isolated areas
  • every child should have full access to education
  • rehabilitation services should be provided to children who have been the victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or armed conflicts.
  • all interviews should be conducted by persons professionally qualified and those specially trained in refugee and children’s issues, and the views and wishes of the child should be elicited and considered.
  • an independent and formally accredited organisation should appoint a guardian or adviser as soon as the unaccompanied child is identified. This guardian should have the necessary expertise in the field of child-caring.

On this last point, I note that the Commission has raised its concerns about the Minister’s role as guardian of unaccompanied minors as the Minister is also responsible for administering the immigration detention regime under the Migration Act and for making decisions about granting visas. The Commission has repeatedly recommended that an independent guardian be appointed for all unaccompanied minors in immigration detention, to ensure that their rights are protected.[7] Developing a model that allows the guardian to focus on the needs and interests of the children is fundamental.

This issue was also raised by the UN Committee on the Rights of the Child when it made its Concluding Observations on Australia’s implementation of the Convention last June.

6. Conclusion

I would like to end by returning to one of the key rights I identified earlier – and one that is dear to my heart – children’s right to have their views heard and to have these views taken into account.

I think it is essential that children and young people in families are given the opportunity to have a voice in decisions that affect them. Arguably, asylum seeking children have very little opportunity to be heard in the Australian context.

Some of the most important decisions are to do with legal status. But children also need an opportunity to express their views on the type of care they receive, access to services, and to education. They need to be able to, and know how to, make a complaint about any adverse treatment they receive. Any complaints process needs to be accessible to those without English language, and to be child-friendly.

I believe that not only is a child’s right to be heard (and for their views to be taken into account), but it is an essential part of ensuring that the support we provide is effective and has their best interests at its core.

Thank you.

[1] On 21 September 2013 it was reported that there were no unaccompanied minors detained at Pontville B Mounster, ‘Pontville detention centre empty and more than 200 staff fear for jobs’, Herald Sun, 21 September 2013. At http://www.heraldsun.com.au/news/national/pontville-detention-centre-empty-and-more-than-200-staff-fear-for-jobs/story-fnjj6013-1226724074247 (viewed 1 October 2013).
[2] Australian Human Rights Commission, Asylum seekers, refugees and human rights – a snapshot report 2013, p 12.
[3] DIAC, Immigration Detention and Community Statistics Summary, 31 October 2013.

[4] Senate Estimates, Department of Immigration and Border Protection, 19 November 2013.
[5] DIAC, Immigration Detention and Community Statistics Summary, 31 October 2013.
[6] Australian Human Rights Commission, Community arrangements for asylum seekers, refugees and stateless persons, 2012.

[7] See, for example, HREOC, A last resort?, note 41, Recommendation 3; Australian Human Rights Commission, Submission to the Joint Select Committee on Australia’s Immigration Detention Network (August 2011), Recommendation 26. At http://www.humanrights.gov.au/australian-human-rights-commission-submission-joint-select-committee-australia-s-immigration#s3 (viewed 1 October 2013).

Megan Mitchell, Children's Commissioner