National Inquiry into Children in Immigration Detention

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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 children. 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:

1 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.

2 The UNHCR has developed criteria to guide individual states. See UNHCR (1992), Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), Geneva.

3 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.

4 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.

5 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.

6 Article 2, Convention.

7 See Background Paper 1: Introduction.

8 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.

9 Article 35, Refugee Convention.

10 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.

11 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).

12 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".

13 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".

14 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.

15 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.

16 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".

17 An outline of child friendly procedures can be found in UNHCR Guidelines on Unaccompanied Children, discussed below.

18 UNHCR Guidelines on Protection and Care, ch 8.

19 See UNHCR Handbook, paras 181-188. See UNHCR Guidelines on Protection and Care, ch 8.

20 See UNHCR Guidelines on Protection and Care, ch 8.

21 Article 12, Convention.

22 UNHCR Guidelines on Protection and Care, ch 8; UNHCR Guidelines on Unaccompanied Children.

23 Outlined above.

24 UNHCR Guidelines on Unaccompanied Children, para 8.2.

25 UNHCR Guidelines on Unaccompanied Children, para 8.3.

26 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.

27 UNHCR Guidelines on Unaccompanied Children, para 5.12 and 8.4.

28 UNHCR Guidelines on Unaccompanied Children, para 5.12.

29 UNHCR Guidelines on Unaccompanied Children, paras 8.1-8.10.

30 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.

31 UNHCR Guidelines on Protection and Care, ch 8.

32 UNHCR Guidelines on Protection and Care, ch 8.

33 UNHCR Guidelines on Unaccompanied Children, paras 8.6-8.10.

34 See also UNHCR Guidelines on Unaccompanied Children, para 8.3, quoted below.

35 Discussed in Background Paper 8: Deprivation of Liberty and Humane Detention.

36 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".

37 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."

38 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.

39 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.

40 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".

41 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).

42 UNHCR Guidelines on Protection and Care, ch 8.

43 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.

44 See UNHCR Guidelines on Unaccompanied Children, Annex Two.

45 UNHCR Guidelines on Unaccompanied Children, paras 5.1-5.3.

46 UNHCR Guidelines on Unaccompanied Children, para 8.9, citing para 218 of the UNHCR Handbook.

47 See Background Paper 1: Introduction, for a discussion of these principles.

48 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.

49 Articles 22(2), 10(1), Convention. See too UNHCR Guidelines on Unaccompanied Children, para 5.17.

50 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.

51 UNHCR Guidelines on Unaccompanied Children, paras 3-6.

52 UNHCR Guidelines on Unaccompanied Children, para 5.11; see also ch 8.

53 See article 7, Convention. See also UNHCR Guidelines on Unaccompanied Children, paras 5.6, 5.9.

54 UNHCR Guidelines on Unaccompanied Children, para 5.7

55 UNHCR Guidelines on Unaccompanied Children, para 5.7.

56 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.

57 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.

58 UNHCR Guidelines on Unaccompanied Children, paras 6-7.

59 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."

60 UNHCR Guidelines on Protection and Care, ch 8.

61 UNHCR Guidelines on Protection and Care, ch 8.

62 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.

63 UNHCR Guidelines on Unaccompanied Children, paras 10.2-10.4.

64 UNHCR Guidelines on Unaccompanied Children, para 9.1

65 See UNHCR Guidelines on Unaccompanied Children, paras 5.4-5.5; 9.7.

66 Article 12, Convention.

67 UNHCR Guidelines on Unaccompanied Children, paras 9.2-9.7

68 UNHCR Guidelines on Unaccompanied Children, paras 9.4-9.8.

69 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.

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National Inquiry into Children in Immigration Detention