National Inquiry into Children in Immigration Detention
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Submission to National Inquiry into Children in Immigration Detention from
Southern Communities Advocacy Legal & Education Service (SCALES)
This submission has been prepared by staff and law students from the Southern Communities Advocacy Legal and Education Service Inc (SCALES). The students worked on this submission as part of a course offered through Murdoch University School of Law in Advanced Clinical Legal Education. This unit is conducted at the School's Law Clinic - SCALES which is also a community legal centre that provides free legal advice, information and representation to low income people living in the Kwinana, Rockingham and Mandurah areas. This is an "in-house" clinical teaching facility where students are responsible for providing legal services to clients under the supervision of legal practitioners who are also lecturers employed at Murdoch University.
SCALES has received funding from the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) over the last few years through the Immigration Advice and Application Assistance Scheme (IAAAS).
From July 1999 - June 2001 it was to provide
(1) Application assistance to:
- Protection Visa (PV) applicants in immigration detention (Perth IDC)
- disadvantaged PV applicants in the community (Perth Metropolitan area)
- disadvantaged non-PV applicants in the community (Perth Metropolitan area)
(2) Immigration advice to disadvantaged members of the community (Perth Metropolitan area)
From July 2001 - June 2002 it was to provide:
(1) Application assistance to:
- disadvantaged PV applicants (including Temporary Protection Visa holders) in the community (Perth Metropolitan area)
- disadvantaged non-PV applicants in the community (Perth Metropolitan area)
(2) Immigration advice to disadvantaged members of the community (Perth Metropolitan area)
As part of its immigration work we have advised and assisted asylum seekers and refugees both pre and post detention in the Perth Immigration Detention Centre, Curtin IRPC and the Port Hedland IRPC.
SCALES has assisted refugee and asylum seeker children in immigration matters in the following categories:
- Unaccompanied minors in the community on Temporary Protection Visas (TPVs)
- Children and young people in detention applying for Protection Visas in their own right
- Children and young people in the community applying for Protection Visas in their own right
- Children and young people in the community who are included in their parents application for a Protection Visa as a member of the family unit.
SCALES works closely with the Association for Services to Survivors of Torture and Trauma Survivors (ASeTTS), Amnesty International Australia and the Coalition Assisting Refugees After Detention (CARAD). SCALES has been involved with community education on the refugee issue, delivering numerous talks and lectures at Universities, conferences, public forums and community groups.
We have two solicitors at SCALES who have previously worked with the Youth Legal Service (WA) and the Youthlaw Unit at Legal Aid (WA). As such once we became involved with the provision of immigration advice and assistance we have always had an interest in the treatment and representation of children asylum seekers.
In representing and advising young people and children SCALES' philosophy is to focus on trying to elicit their views and choices.
Acknowledgements
The development and research for these submissions was prepared by the law students enrolled in Advanced Clinical Legal Education L300 in Summer 2001/2002
Natalie Barton
Maria Fifield
Lisa Howells
Marisha Jurek
Yvette Wiklund
Supervised by Mary Anne Kenny, Clinic Director and Senior Lecturer in Law, Murdoch University.
Summary of Recommendations from SCALES
Definitions
- That the use of the term unaccompanied children be replaced by the term "separated children" in accordance with the UNHCR (see page 6).
Procedures upon arrival
- That provision be made for the release of children from detention with their parent or carer once basic security, identity and health assessments are complete. In that regard we support the Alternative Detention Models proposed by HREOC in its Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program (see page 15).
- The determination as to whether a person should be released on a bridging visa from detention on health grounds should be performed by a DIMIA officer who is separate from the detention centre and independent medical evidence should be considered, particularly on review of any decision to reject by an independent review body such as the Migration Review Tribunal (see page 15).
- There should be minimum procedural safeguards afforded to asylum seeking children and their families, in accordance with UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers special procedures should be set out for unaccompanied minors that accord with Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (see page 17).
- Organisations, government departments and professionals involved in providing services to unaccompanied children must cooperate to ensure that the welfare and rights of unaccompanied children are enhanced and protected. (Statement of Good Practice, UNHCR & Save the Children) (see page 23).
- An organisation independent of the Department of Immigration (such as the relevant state child protection organisation) appoint a guardian or adviser as soon as unaccompanied children arrive and are identified. The guardian or adviser should have the necessary expertise to ensure the child's legal, social, medical and psychological needs are safeguarded in accordance with Article 5.7 of Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum(see page 23).
- Unaccompanied children seeking asylum should not be refused access to a territory in accordance with Article 4 of the UNHCR's Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997) (see page 25).
Visa determination procedures
- The Migration Act and Migration Regulations be amended to provide a clearer statutory scheme for children to apply for a protection visa (see page 26).
- Children included with their family's application, depending on their age and maturity should be separately advised on and their views sought in accordance with Article 12 of CROC (see page 26).
- Representation of children and young people:
- Children who arrive in a family unit should have access to separate legal advice and assistance.
- Migration Agents who represent children and young people should have skills and experience in interviewing and working with children and young people.
- Children and young people should be represented at all levels of the determination process.
- Timelines for the preparation and lodgement of submissions on behalf of children should be dictated by the times that are suitable for them.
- Funding of representation of children should not be done on a tender basis. (see page 30)
- Section 48(2)(aa) of the Migration Act be amended to ensure an exception exists to allow children make an independent application where their interests were not adequately represented (see page 32).
- The asylum seekers currently located in Nauru, Manus Island and Christmas Island be given the opportunity to access independent immigration advice(see page 36).
- Children should be interviewed by people trained and experienced in child interview techniques and in working with interpreters. The information needs to be obtained from children in a manner that will elicit the most information from them (see page 41).
Post Determination issues
- Provide permanent, rather than temporary, protection visas for all children found to be refugees (see page 45).
1. INTRODUCTION
In 2000/2001, 1103 children were held in immigration detention centres in Australia, out of a total 8401 detainees.
Offshore there are approximately 278 children held in Manus, Christmas Island, Nauru and Cocos, of which there are 37 unaccompanied in Christmas Island (Source: UNHCR Feb 2002).
Figures from DIMIA [1], as of 1 February 2002:
- The total number of women and children in mainland Australian Immigration Detention Centres is 637.
- This number comprises of 259 adult women, 224 male children, 141 female children.
- 13 unaccompanied minors in detention.
- 9 unaccompanied minors placed into alternative care of the South Australian Department of Human Services provided through Family and Youth Services.
In deciding on the content of this submission it was decided to focus on Chapter 7 "Legal Status" of the background papers. The touchstone of this submission will be measuring the treatment of child asylum seekers and refugees against the standards that are set out in:
- International treaties particularly Convention on the Rights of the Child (1989) ("CROC") and the Convention relating to the Status of Refugees (1951) and its 1967 Protocol (the "Refugee Convention").
- Guidelines relating to refugee children from the United Nations High Commissioner for Refugees (UNHCR) including: Guidelines on Refugee Children (1988), Refugee Children: Guidelines on Protection and Care (1994) and Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997).
- "Statement of Good Practice" of the Separated Children in Europe Programme (Save the Children/ UNHCR) (2000) and the European Council on Refugees and Exiles Position on Refugee Children of November 1996
- UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers (February 1999)
Some comparison and examples will be drawn from the treatment of asylum seeking children in other countries such as the US, Canada, UK and Denmark.
2. DEFINITIONS
This submission will consider the situation of children who arrive in Australia either with other family members or on their own.
Whilst awaiting a determination of their own claim or their parent/guardians claim for protection under the Refugee Convention they are known as "asylum seekers." Once their claim has been determined and they are accepted they are known as "refugees."
The term "separated children" seems to be one that is now replaced the term "unaccompanied minor" by international agencies such as the UNHCR. "Separated children" are children under 18 years of age who are outside their country of origin and separated from both parents, or their previous legal/customary primary caregiver. Some children may be totally alone while others may be living with extended family members. All such children are separated children and entitled to international protection under a broad range of international and regional instruments. [2]
"Separated children may be seeking asylum because of fear of persecution or the lack of protection due to human rights violations, armed conflict or disturbances in their own country. They may be the victims of trafficking for sexual or other exploitation, or … escap[ing] conditions of serious deprivation." (From "Statement of Good Practice" of the Separated Children in Europe Programme, Save the Children/UNHCR, 2000, at page 3)
As the term "unaccompanied minor" is still used by DIMIA and courts in Australia it is easier in this submission to refer to them as such for consistency. However there appear to be good reasons to make recommendations that government agencies adopt this name change.
Recommendation:
That the use of the term unaccompanied children be replaced by the term "separated children" in accordance with the UNHCR.
3. STRUCTURE OF SUBMISSION
We would first like to examine the barriers that refugee and asylum seeking children face when engaged in legal processes.
This submission will then examine the legal status of child asylum seekers and refugees:
- Arrival and reception
- Application/processing of claims
- Post - determination processes and settlement in the community
The processing of those people seeking asylum in Australia was altered dramatically in September 2001. We will consider the stages of processing under the pre-September 2001 and post-September 2001 regimes.
4. BARRIERS TO PARTICIPATION
The Australian legal process in determining whether a child is a refugee requires a great deal of personal responsibility and initiative, which is unusual to demand of a child or young person. In the determination process, the asylum seeker is ultimately responsible for providing relevant and adequate information in order for the authorities to consider the case.
For the vast majority of asylum seekers the application process is one that is stressful as the stakes are so high.
In considering processes that are appropriate to both allow real participation in the process and that takes into account what is in a child's best interest there are a number of factors to consider:
- Developmental capacity
- Cultural and language differences
- Torture trauma
- Separation from family
- Detention environment
These will be considered below.
4.1 Developmental and Legal Capacity
In order to participate in legal processes children are required to understand the processes and have the intellectual, emotional and psychological skills necessary to negotiate and pursue the process. The assumptions have traditionally been that children are not developmentally mature in order to be able to participate successfully in legal processes without assistance. [3]
Based on these general assumptions, children have been excluded and viewed as incompetent to give evidence. Traditionally the assumptions were that children were untruthful, suggestible, prone to fantasy and unable to make accurate and reliable observations about events. [4]
Because of assumptions about children's incapacity, based on their age, some children are by definition ineligible to participate in some legal processes. In addition they are prohibited from being parties to civil actions and questioned about soundness of their judgement and capacity to make fair and accurate assessments of their interests. [5]
More recently there has been a re-evaluation of children's capacities to participate in legal processes, following psychological studies on children's cognitive abilities. [6] Following decisions such as Gillick v Norfolk and Wisbech Area Health Authority [7] in the House of Lords and the High Court's decision in Marion's case , [8] the focus has been on the individual child rather than on general rules for all children.
Article 12 of CROC embodies this principle of an evolving capacity to participate. Where children are seen to be capable of forming a view, then they have a right to express that view and have it taken into account and given due weight in accordance with age and maturity of the individual child. [9]
Although a child may be considered capable to participate in legal processes, there may still be barriers to implementing appropriate participation by children. The processes themselves are not designed for participation by children, but made and implemented by adults, with adult attributes. The language is jargonistic and the systems are complicated and can be overwhelming to the child participant. [10]
4.2 Culture and Language
Although children from culturally and linguistically diverse backgrounds (CALD) are not a homogenous group, they may often face common difficulties with regard to their participation in legal processes. In general, children of CALD tend to find the legal processes involved in obtaining these services bewildering and marginalising. [11]
Accessing professional interpreters is often a critical issue when dealing with CALD children. There are many different dialects from one country and often government officers are not aware of the subtle complexities of an individual's language needs. As an example there are no NAATI qualified Mon [12] interpreters in Australia. The Mon Haka dialect has no similarity to the Burmese language, yet Burmese interpreters are used.
If an interpreter is, or is perceived to be, from a background that the client may not feel comfortable with (e.g. for ethnic or religious reasons) this will inhibit free and open communication.
Another issue to be sensitive to in respect of interpreters are factors such as the ethnicSensitivity to cultural issues regarding the use of interpreters must be
Children of CALD may also encounter:
- Inadequate and inappropriately targeted information concerning law, procedures, rights and obligations.
- Problematic relations with authority/detention officers.
- Inadequate research and evaluation of multicultural issues in the youth area.
From the child's point of view, DIMIA Officers are authority figures and foreign government officials. Children may have had experiences which give them good reason to distrust persons in authority.
Children in some cultures are taught to listen to adults but not to speak in their presence at all. Other children may have spent time in school or other environments where providing answers to questions is expected and saying "I don't know" is typically discouraged. [13]
4.3 Torture/Trauma
During interviews in a protection visa case the children are expected to explain their background, the motive for applying for asylum, political activities of the child or family-members etc. The interviews are almost always dealing with themes that are emotionally disturbing to the child, such as physical assaults on the child or family-members, violence and war, detention, torture, death and fear.
Research within cognitive psychology has shown that the ability to acquire knowledge and solve problems is reduced during conditions of anxiety and depression. The experience of traumas can thus affect the cognitive competence of the child and the ability of the child to pass on information during interviews in the asylum process. This should be taken into account when considering whether the individual child is sufficiently mature to take part in the asylum process and how to conduct the interviews. [14]
4.4 Special considerations - unaccompanied children
Many of these children have witnessed atrocities that adults cannot even imagine-death by the masses, violence, and separation. Some unaccompanied children have even seen their own family members slaughtered during flight. Others have been forced to act as soldiers. Consequently, unaccompanied child asylum seekers or refugees generally suffer extreme psychological trauma which requires counselling and other psychological services.
Unaccompanied children exist in virtually every emergency situation in the world. [15] Despite the fact that many unaccompanied children "confront additional risks of murder, torture, rape . . . imprisonment, abduction, enslavement, robbery, and starvation." [16] The loss of family care and protection is perhaps the greatest loss to these children.[17] Thus, "even when they reach the apparent safety of a refugee or displaced person camp, their problems-physical, mental, material, and cultural-may be far from over." [18]
As one commentator noted:
"For a child, it is a terrifying experience in itself to have to flee to an unknown land, having been abruptly wrenched away, under bombing or gunfire, from home, school, friends, everything that was comforting, that gave meaning to life . . . [however, if] the child loses his or her parents-the only remaining reassuring link-and is left alone, it is absolutely atrocious." [19]
Some commentators that have argued for a specific convention to deal with unaccompanied children seeking asylum. [20]
From Danish Refugee Council, Unaccompanied Children in the Danish Asylum Process, April 2000
"The experience of separation and traumas can have a profound impact on the child's emotional, cognitive and moral development. The table … compares the preconditions for a successful identity-process for teenagers with the psychosocial reality of unaccompanied children. Mirroring the two concepts clearly shows that the refugee children are especially vulnerable. This fact must be reflected at all levels in a policy on their reception and processing in the asylum procedure.
| Precondition for a Successful Identity-process | The Psycho-social Reality of Unaccompanied Children |
(Erikson, E. 1968) |
(Lindskov and Sørensen 1999 p. 138) |
4.5 Detention
Detention facilities are mostly in isolated outposts making provision of legal services difficult and often only accessible via teleconferencing rather than face to face contact. Children in remote communities face particular hardships in relation to availability of services such as education, support services and other needed resources. [21] Welfare and community services are either inadequate or inaccessible and access to legal processes are limited and more costly due to long distance communication.
The detention environment also causes additional emotional stress. Detention centres hold many individuals who have been exposed to high levels of trauma either in their countries of origin or during their journey to Australia. [22] After arrival, other factors may contribute or exacerbate existing psychological distress including: witnessing acts of self-harm by other detainees, separation from family, interviews with immigration officials and stress associated with waiting for an outcome from the asylum application process. If detention is prolonged there is also the experience of social isolation, boredom and frustration. [23]
5. ARRIVAL AND RECEPTION
5.1 Pre- September 2001
5.1.1 Mandatory Detention
People who arrive in Australia without authority can come either by boat or air. If an unlawful non-citizen is detected they must be detained until they are either granted a bridging visa or a substantive visa, or removed from Australia. [24]
International standards provide clear grounds for acceptable, temporary detention of asylum-seekers. The UNHCR has stated that "in view of the hardship which it involves, detention should normally be avoided" [25] Conclusion 44 (1986) of the Executive Committee of the UN High Commissioner for Refugees (UNHCR) provides that detention should only be in exceptional cases and on any of these grounds not be automatic or prolonged:
(a) to verify his or her identity
(b) to determine the elements on which the claim to protection is based
(c) to deal with cases where refugee or asylum seekers have destroyed their travel and/or identification documents, or
(d) to protect national security and public order.
To detain people in order to act as a deterrent is counter to Article 31 of Refugees Convention:
"States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom were threatened ... enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."
CROC provides in article 37(b) and (d) that detention of children shall be used only as "a measure of last resort" and for the "shortest period of time" and that a child have the right to legal assistance and that detention be subject to prompt judicial or independent review.
5.1.2 Bridging Visas
There is provision for children to be released from detention if granted a Bridging Visa E (Subclass 051). We can see two possible grounds:
1. The applicant is an eligible non-citizen as identified in sub-reg. 2.20(7), amongst other things i.e. they have not turned 18 and a child welfare authority of a State or Territory has certified that release from detention is in the child's "best interests".
2. The applicant is an eligible non-citizen as identified in sub-reg 2.20(9), i.e. they have a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the person cannot properly be cared for in a detention environment; and in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.
The determination of eligibility for a bridging visa is processed by an officer from DIMIA. From experience in assisting detainees in the making applications for bridging visas, SCALES understands that it is DIMIA's policy to give the processing of such bridging visas to the particular Centre Manager where the detainee is located. In our submission this raises issues of a potential conflict of interest as the criteria require an assessment that the individual's best interests are not served by continuing to stay in that detention centre. A Centre Manager, who has responsibility for the particular centre may be loathe to make this particular finding regarding the centre they are responsible for managing as it may imply a fault of the facilities.
Few children are released on bridging visas as there is no basis for a parent or carer to be released with them and so to release them may therefore not considered in their "best interests."
Further comment will be made with respect to unaccompanied children below at section 5.1.4.
We would like to make some comment with respect to bridging visas granted on health grounds. Under current Migration Regulations detainees cannot have a their own medical expert to provide an opinion which could then be determined by an independent body.
Recommendations:
- That provision be made for the release of children from detention with their parent or carer once basic security, identity and health assessments are complete. In that regard we support the Alternative Detention Models proposed by HREOC in its Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program
- The determination as to whether a person should be released on a bridging visa from detention on health grounds should be performed by a DIMIA officer who is separate from the detention centre and independent medical evidence should be considered, particularly on review of any decision to reject by an independent review body such as the Migration Review Tribuna
5.1.3 Screening Procedures
This consists of medical screening, security and intelligence debriefings. New arrivals are separated from other detainees in the centre to which they are sent. The DIMIA Manager at each centre co-ordinates the Department's process of examining applications for protection. [26]
The initial process involves DIMIA accumulating all individuals' information including their identity, reason for coming to Australia, route taken to Australia, and information regarding the person's claim that may engage Australia's protection obligations. [27] Using this information, DIMIA then determines whether there are any prima facie issues that engage Australia's protection obligation under the Convention. As a result of this initial process, asylum seekers are "screened in" or "screened out" of the refugee determination process. [28]
The asylum seekers who are screened out are placed in "separation detention" until they are removed from Australia, while asylum seekers screened in move into the refugee determination process. [29]
An inquiry by the Joint Standing Committee on Foreign Affairs, Defence and Trade DIMIA's initial processing was both intimidating and threatening. Detainees commented they had no knowledge of Australian law, the term "refugee" in Australia differed from the term elsewhere, along with the difficult interrogatory process of interviewing and claims of racial discrimination. [30]
SCALES has been told by adult asylum seekers that these initial periods after arrival are confusing and unsettling. Some have told us that they did not know where they were being taken; why they were going to a detention centre, what detention actually meant and how long they were going to be in detention.
In terms of accessing legal assistance when in isolation Peter Mares in his recent book Borderline found:
Section 193 of the [Migration] Act effectively removes any obligation on an officer of the Commonwealth to inform a detainee of his or her legal rights, if that detainee has not successfully cleared immigration. Boat people seeking asylum fall into this category and since late 1994 it has become routine departmental practice not to advise them of their right to seek a lawyer or of their right to apply for refugee status. [31]
There are minimal guidelines with respect to the reception of unaccompanied minors. We were only able to find two references:
1. DIMIA Procedure Advice Manual unaccompanied minors are identified "special needs applicants." In "order of priority for processing" unaccompanied minors are placed after torture trauma cases, but before those seeking a new protection visa. [32]
2. DIMIA Immigration Detention Standards provides only that "unaccompanied minors are detained under conditions which protect them from harmful influences and which take account of the needs of their particular age and gender." [33]
Recommendation
There should be minimum procedural safeguards afforded to asylum seeking children and their families, in accordance with UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers special procedures should be set out for unaccompanied minors that accord with Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum
5.1.4 Guardianship Arrangements for Separated Children on Arrival
By definition unaccompanied children have no responsible adult to represent and protect their best interests. The major issue in Australia is: who is their responsible guardian and what are their guardianship obligations?
Issues relating to the guardianship of separated children have not been the subject of much discussion or debate by commentators. It has only been considered recently in a few decisions in the Federal Court, by North J in two judgements in X v Minister for Immigration and Multicultural Affairs;[34] French J in Jaffari v Minister for Immigration and Multicultural Affairs [35] there will also be a consideration of the issue in the upcoming Full Court decision in Odhiamo v. Minister for Immigration and Multicultural Affairs and Martizi v. Minister for Immigration and Multicultural Affairs.
Immigration (Guardianship of Children) Act 1946 (Cth) ("IGOC Act") came into operation on 30 December 1946 states in s.6:
The Minister shall be guardian of the person, and of the estate in Australia, of every non-citizen child [36] who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently … .
5.1.4.1 Legislative history of IGOC Act
The legislative history of this provision was considered by French J in Jaffari v Minister for Immigration and Multicultural Affairs:
"The Second Reading Speech for the Immigration (Guardianship of Children) Bill 1946 stated the purpose of the Act was "... to enable the Minister to act as legal guardian of all children who will be brought to Australia in future as immigrants under the auspices of any governmental or non-governmental migration organisation" (Parl Deb H of R 31.7.46 p 3369). Arrangements had been made prior to the enactment of the Act that "...the Commonwealth Minister would be the legal guardian of the children, and shall delegate his authority to the State departments" (Parl Deb H of R p 4090)."
The background of the Act was also considered in detail in a recent report from the Senate Community Affairs References Committee, Lost Innocents: Righting the Record (2001) (the Lost Innocents Enquiry). The following passages explain the Act's post - war migration context:
"2.40 The Commonwealth Government had only limited involvement with child migration until after World War II. Before this time, immigration schemes were largely handled by the individual States, each having its own Immigration Department.
"2.41 In 1920, the Commonwealth and the States entered into a joint scheme in relation to migration, with the States' responsibilities being reception, settlement and after-care. The Department of Immigration and Multicultural Affairs stated that 'from the information available it appears that State/Territory child welfare legislation and the general law covered custody and guardianship arrangements for the children'. There was no Commonwealth legislation governing the migration, settlement or guardianship of migrant children prior to 1946 until the enactment of the Immigration (Guardianship of Children) Act 1946 … [37]
"2.68 The legislative basis in Australia for post-war child migration was the Immigration (Guardianship of Children) Act 1946 (IGOC Act). As noted previously, prior to 1946 the Commonwealth Government had not legislated for child migration. The IGOC Act placed legal guardianship in the Minister for Immigration for child migrants when they arrived in Australia until the child reached the age of 21 years. The intention of the Act was to enable uniformity in regard to legal guardianship of the children." [38]
The IGOC Act was drafted in times when it was not contemplated the possibility of unaccompanied minors making applications for visas in circumstances which apply today, the IGOC Act reflects a regime of post war migration of selecting and sponsoring children from overseas to come to Australia. It is not well suited to a situation of "uninvited" children arriving in Australia and applying for a visa onshore. [39]
The Minister's guardianship responsibilities appear to either conflict with his duties to administer the Migration Act, or to require that the child's best interests take priority. [40]
5.1.4.2 Who is guardian? State or Federal?
Under section 5 of the IGOC Act the Minister may delegate to any officer or authority of the Commonwealth or of any State or Territory all or any of his powers and functions under the Act.
Historically it appears that it was intended that State Welfare authorities would assume primary responsibility for children because of their knowledge and experience with the local environments. DIMA provided the following advice to the Lost Innocents enquiry on the definition of guardianship under the IGOC Act:
"DIMA provided further advice on the definition of 'guardianship'. The Department stated that a guardian in relation to a child is 'a person with the right to make decisions about the long-term needs of the child, as opposed to the day to day care of the child…The Immigration (Guardianship of Children) Act modifies the traditional role of a guardian. The Act does not define guardian, so the ordinary understanding of that word, as discussed above, must be taken as the proper meaning. However, in ascertaining legal obligations and liabilities by the Act, it must be recognised that the legislation does in some ways modify the traditional role of a guardian. For example, the Act envisages delegation of the powers and functions of the Minister to State welfare authorities; and together with the regulations, the legislation provides inspection and other powers to State welfare authorities to supervise custody, and envisages that the State authority would be primarily responsible for supervision of the welfare and care of children covered by the Act." [41]
The Senate Committee found:
"2.71 The Minister delegated his powers as guardian of child migrants to State welfare authorities shortly after the legislation was enacted. The Department stated that it was 'not intended that the Commonwealth exercise direct control over the migrant children, but that State Authorities should assume that role'. Indentures were made between the delegated State Government welfare officials and voluntary organisations in which the organisations agreed to bear the responsibility for the care and welfare of the children placed under their care. The statutory scheme established by the IGOC Regulations:
…envisaged that the State authority would be primarily responsible for the supervision of the welfare and care of child migrants. The local State authority was likely to have better knowledge of the rights, powers and responsibilities of guardians and custodians under child welfare legislation and a better understanding of local conditions. In addition to this, officers of the State authority dealing with child welfare matters on a regular basis were better equipped to deal with these matters than the staff of the Commonwealth Immigration Department. [42] (emphasis added)
With respect to the guardianship of unaccompanied minors the roles and responsibilities between the state and commonwealth is not clear. This has been demonstrated in the following cases before the Federal Court.
1. Evidence given by the WA Department of Community Development in the case of Jaffari v. MIMA:
"There are at present two memoranda of understanding being negotiated between the Department of Immigration and Multicultural Affairs ("DIMA") and the Western Australian Department of Community Development in relation to unaccompanied minors who are applicants for protection visas. One relates to unaccompanied minors released into the community on temporary protection visas. The other relates to children in detention centres and predominantly concerns what she described as "child protection issues". By that term she meant "...concerns expressed about the health, welfare and safety of children in detention centres; for example allegations of abuse". There had been an arrangement in place whereby DIMA advised the Department of Community Development of the presence of unaccompanied minors at the Curtin Detention Centre in Derby. That arrangement had ceased at the instigation of DIMA in mid-May. The Department was still receiving notification of the arrival unaccompanied minors at the Port Hedland Detention Centre. Ms Gupta was unable to provide any information about whether any system of reporting was in place to monitor the time spent by minors in the detention centres. If a report were made to the Department about the condition of a particular child in detention, the Department would make contact with DIMA officers and make arrangements to assess the protection issues in respect of the child. She was not aware of any role taken by the Director or any officer of the Department in relation to applications by unaccompanied minors for protection visas. She agreed with the proposition that there is very little in the way of administrative procedures or guidelines for the implementation of the Minister's delegation by officers of the State Department."
2. Evidence given in an affidavit by the Centre Manager at Port Hedland IRPC in the recent cases of Odhiambo v MIMA and Martizi v. MIMA:
"35. At the time of the appellants reception in the Centre, DCD [Department for Community Development] was not informed, as at that time DCD had no involvement with the Centre. DCD's involvement with the Centre commenced in March 2001.
"36. DCD was not requested by DIMIA to become involved with the appellant until late February 2002."
When the local state welfare authorities become involved in a case and what their role is obviously unclear and unsatisfactory. In the cases of the two children at Port Hedland IRPC, the fact that DCD were not involved meant that then there could have been no consideration of the appellants' ability to apply for a Bridging Visa E (Subclass 051) as it specifically requires an opinion from the relevant authority. [43]
The difficulties and tensions in the relationship between the state authorities and DIMIA is illustrated in the following exchange between a reporter from the Channel Nine Sunday Programme and the Minister for Immigration. This conversation was not with regard to an unaccompanied child but with respect to a recommendation to release a child with his parents.
"REPORTER: Minister, DOCS is the relevant authority in New South Wales for the welfare of children and yet, you ignored their report recommending this family be released into the community?
PHILIP RUDDOCK: Let me just say that the report was not to release the child separately from the mother and what we say is if the relevant authority recommends the child be released into the community, that will happen. But if...
REPORTER: So you ignored the DOCS report. If it says the whole family should be released into the community.
PHILIP RUDDOCK: Look, State authorities cannot determine that immigration detainees, adults, be released. They will only be released if there is a lawful basis upon which that can happen.
REPORTER: Can I just be clear about this: you're saying you'll ignore the relevant child welfare authority if it doesn't fit in with your policy?
PHILIP RUDDOCK: No, what I'm saying is the law makes it very clear, Commonwealth law, the Migration Act, as to when people will be released into the community." [44]
On this point it is interesting to pay heed to a comment made by the Senate Committee in the Lost Innocents enquiry:
"5.35 The Committee has received considerable documentary evidence from archival records, in addition to the anecdotal evidence of the former child migrants, clearly demonstrating a failure in their duty of care by those involved at all levels with the child migration schemes. The inadequate levels of monitoring and buck-passing of responsibilities appeared endemic at all levels." [45]
It is therefore a telling criticism that we may see the same patterns occurring again. Commenting on the current regime French J:
There are dangers in essaying, in the context of a particular application of a statute, general observations about its operation and administration. It may be noted, however, that arrangements for the proper supervision of the welfare and protection of unaccompanied minors seeking asylum seem to be somewhat inchoate with a presently ill-defined role on the part of the Director of Community Development notwithstanding that the current delegation has been in place for nearly two years. Moreover there appears to be a significant discrepancy between the guidelines published by the United Nations High Commissioner on Refugees ("UNHCR") in respect of unaccompanied minors seeking asylum and the current administration of the Migration Act in relation to such persons." [46]
Recommendations:
Inter-organisational Co-operation
- Organisations, government departments and professionals involved in providing services to unaccompanied children must cooperate to ensure that the welfare and rights of unaccompanied children are enhanced and protected. (Statement of Good Practice, UNHCR & Save the Children)
Independent Guardian
- An organisation independent of the Department of Immigration (such as the relevant state child protection organization) appoint a guardian or adviser as soon as unaccompanied children arrive and are identified. The guardian or adviser should have the necessary expertise to ensure the child's legal, social, medical and psychological are safeguarded in accordance with Article 5.7 of Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum
5.2 Arrivals Post September 2001
Australia's turning away of the Tampa in September 2001 and subsequent events signalled a radically different approach toward Australia's handling of unauthorised boat arrivals. Australia had previously permitted arrivals to land on its territory, detained them, and permitted them to lodge asylum claims.
5.2.1 Legislative Changes
Migration Amendment (Excision from MigrationZone) Act 2001
Under this law, certain Australian territories have been "excised" from Australia's "migration zone" for purposes related to unauthorized arrivals. Any unauthorized person who arrives in an "excised offshore place" will not be able to apply for a visa unless the Minister for Immigration exercises his discretionary power. The affected territories are:
- Ashmore and Cartier Islands in the Timor Sea.
- Christmas Island in the Indian Ocean.
- Cocos (Keeling) Islands in the Indian Ocean.
- Offshore resources and other installations.
The US Committee for Refugees has set out how subsequent boat arrivals were dealt with [47] in summary:
- Some asylum seekers were taken to Nauru for processing by the UNHCR
- Other asylum seekers taken to Nauru are being processed by DIMIA after the UNHCR refused to process them.
- Some asylum seekers have been detained on Christmas Island to be processed by DIMIA
- Navy officials have "pushed back" into international waters two boats from Indonesia that arrived near Ashmore Reef
In respect of the "push backs" of boats As the US Committee for Refugees concluded:
"Although Australia may not technically be violating the UN Refugee Convention's prohibition on refoulement when it pushes boats of asylum seekers back into international waters, it is certainly violating the spirit of the Convention-as well as general humanitarian principles-by sending the asylum seekers to unknown dangers on the high seas or to countries that may return them to persecution. While there have not as yet been any known incidents of direct or indirect refoulement of persons pushed back by Australia, countries in the region that are not signatories to the Convention, such as Indonesia (which is the likely destination of boats pushed back by Australia), will not guarantee that asylum seekers will be protected from return to countries where they could face persecution." [48]
5.2.2 Unaccompanied Children off - shore
It is interesting to note that under the IGOC Act the Minister is the guardian for all non-citizen children that arrive within "Australia." This Act has not been amended with respect to the changes made to the Migration zone. It appears that the Minister is the guardian for all of the children that are on Christmas Island and those that have come with Australia's territory whether or not they have been subsequently removed from the territory.
As guardian the Minister is therefore to act in the children's best interests - which surely must mean allowing them access to the protection application system within Australia.
Recommendation: the Australian government should act in accordance with their guardianship obligations and Article 4 of the UNHCR's Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997) which states:
- 4.1 Because of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.
- 4.2 Upon arrival, a child should be provided with a legal representative. The claims of unaccompanied children should be examined in a manner which is both fair and age appropriate."
6. APPLICATION DETERMINATION
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.
6.1 Process Pre- September 2001
6.1.1 How children may be involved in the application process
Clearly children, even an infant can be a "refugee" [49] and can apply for a protection visa in his or her own right or as a member of a family unit. However the procedure is not clear. It was noted in the case of Al Raied v Minister for Immigration and Multicultural Affairs:
"39 The Act and regulations do not appear to provide a cohesive and comprehensive scheme which makes clear the position of children, and an infant in particular, to apply for a protection visa in their own right or be added to an application of a parent and the position of the child at the various stages of administrative decision making and review. …. it may be desirable for the statutory scheme to be reviewed and the position clarified."
Children who arrive unaccompanied and lodge claims of their own or children who arrive as part of a family unit and lodge claims as part of the family unit are all involved in a complex determination process. Unaccompanied children who are screened in will be provided with their own legal representative and have direct contact with DIMIA, this process will be examined further below. While children who arrive with their family may not be consulted at all about their views during the determination legal process. Their claims will often be "subsumed" within their families and the authorities will assume their parent or guardian will advise them of the process. SCALES has been told by some teenage children that they were never spoken to by DIMIA authorities or a lawyer about the application.
Recommendations:
- The Migration Act and Migration Regulations be amended to provide a clearer statutory scheme for children to apply for a protection visa.
- Children included with their family's application, depending on their age and maturity should be separately advised on and their views sought in accordance with Article 12 of CROC.
6.1.2 Legal Representation - IAAAS
If DIMIA determines that Australia's protection obligations are engaged, the individual is eligible for an "onshore protection interview," a substantive interview assessing the applicant's claim for refugee protection. Each applicant is assigned to a DIMIA protection visa officer as well as to a registered migration agent who represents the client. DIMIA pays the migration agents through the Immigration Advice and Application Assistance Scheme (IAAAS).
The migration agent visits the asylum seeker at the detention centre, explains the application process, interviews the person, and completes the protection visa form. The process is often hurried, as Peter Mares, author of Borderline: Australia's Treatment of Refugees and Asylum Seekers, explains:
A detail missed at this initial stage can prove disastrous, but there is pressure on migration agents to get the job done quickly because applications made from detention must be completed within three working days. The three-day rule is usually enforced strictly with "airplane people" who arrive at major city airports, although, with DIMA's agreement, it has been relaxed at times with mass boat arrivals, when the very numbers render such a rule impractical.
DIMIA awards IAAAS contracts based on a competitive tender process. According to DIMIA, it gives such repeat business to contractors who demonstrate understanding of the protection assessment process and an ability to respond quickly to high volume workloads.[51] Indeed when tendering for an IAAAS contract to perform asylum seeker application assistance to people in detention tenderers are required to provide figures on the basis of seeing and completing at least three applications per day. This means that the process can be hurried and is not dictated by the pace at which a child may feel comfortable with.
Case example An unaccompanied Hazara teenage boy from Afghanistan told SCALES that when he arrived he was approximately 16 years old. He showed us a statement prepared by his legal representative that was 2 pages long. He says that he had more to tell his lawyer but she told him not to as he had told her enough and that as long as "he was a Hazara and from Afghanistan that was all they needed to show" and she had other people to see that day.
There is no requirement that tenderers have any experience or training in dealing with interviewing or representation of children or young people. Indeed SCALES understands that there are cases where a Migration Agents appointed under IAAAS in dealing with a family group may only interview and draw up claims for the parents of the group and not interview the children to determine whether they have any claims separate to their parents.
There has been some criticism of the work performed by IAAAS contractors
"Some observers, even some migration agents, say that DIMA has developed too close a relationship with certain law firms, migration agent firms, or community legal centres that rely on DIMA for a significant portion of their business, causing agents to hesitate to criticize DIMA or to "make waves" while representing clients. Some migration agents, they say, lack creativity and aggressiveness in performing their work" [52]
By way of another example we quote from the HREOC submission to the Full Court of the Federal Court in Odhiambo v MIMA and Martizi v. MIMA:
In relation to the application for review to the RRT, from the Minister's refusal of his visa application, it appears that the Appellants had available to them legal assistance of the same general category as is provided to all persons in detention pursuant to the Immigration Advice and Application Assistance Scheme. It is conceded that that Scheme did not extend beyond assistance with the RRT: it is also apparently conceded that the solicitors who are meant to assist the Appellants were in Melbourne. Mr Odhiambo describes the assistance he received from the solicitors in paragraphs 7-9 of his affidavit. The Appellant, Peter Martizi, saw a person whose name was not known to him, but whom he describes as a lawyer from Macpherson & Kelley, at Port Hedland. The lawyer apparently attended the interview and thereafter did not trouble to contact his client. The lawyer did not assist to fill out an application to the RRT, although he appears to have been allocated a lawyer from the same firm of solicitors for the purpose of the hearing. The lawyer apparently attended the RRT hearing by video conference, but did not speak. He had no further contact from the lawyer.
The IAAAS contract only provides payment per person assisted at a flat rate. Providers are Migration Agents and/or lawyers and have professional standards and are bound to provide clients with full assistance to the best of their professional responsibilities. Conversely each time a communication is made with a client it eats into the funds provided, if a profit is sought there may be a temptation to keep communication to a minimum in order to perform the job required.
SCALES has dealt with clients under an IAAAS contract in the Perth Airport Detention Centre. Clients have on occasion been transferred to Port Hedland IRPC or Curtin IRPC so we have had to attend those venues in order to perform the contract work.
Due to the nature of the contract and the remote location IAAAS operators who provide assistance in remote areas will often only see their client face to face on a limited number of occasions: at the initial application stage; the DIMIA interview and post DIMIA interview. They then leave and return to the eastern states.
Any further queries regarding the processing of applications must be done by telephone or letter. Given the lack of English skills the only practical way to communicate is via telephone with the use of an interpreter. Detention facilities make private rooms available for telephone calls, but the nature of a pre-booked call with an interpreter allows little room for a broad discussion. Time differences between Western Australia and the eastern states where most IAAAS contractors have their offices also compound communication difficulties.
If a decision by the DIMIA is negative an advisor must go over the reasons for the decision and prepare any further rebuttal evidence over the telephone. Again this is very difficult and inappropriate in dealing with young people and children, it makes trying to establish any rapport and pick up non-verbal cues impossible.
The IAAAS contracts do not extend to actual representation of the applicant before the Refugee Review Tribunal it will only cover the preparation of written submission.
Recommendations
Representation of children and young people
- Children who arrive in a family unit should have access to separate legal advice and assistance
- Migration Agents who represent children and young people should have skills and experience in interviewing and working with children and young people
- Children and young people should be represented at all levels of the determination process
- Timelines for the preparation and lodgement of submissions on behalf of children should be dictated by the times that are suitable for them
- Funding of representation of children should not be done on a tender basis
6.1.3 DIMIA/RRT Interviews
At present the procedure for processing asylum seekers in Australia does not distinguish between children and adults. [53] This is despite the fact that children may not be able to articulate their claims to refugee status in the same way as adults.
There are no guidelines in place that set out issues officers should to be aware of when interviewing children and in determining their claims. In contrast DIMIA has Gender Guidelines that are in place to be used in determining asylum claims from women. The guidelines were developed in order that DIMIA officers are more responsive to the substantive and procedural aspects of gender related claims. [54]
This case example involved an asylum seeker who was in the community. If he were in detention the preparation and presentation of reports from child/adolescent counsellors would have been impossible. The case example also illustrates a lack of consultation with other NGOs and agencies that may have been able to provide expert advice and guidance on appropriate interview techniques and on the general processing of the application.
6.1.4 Determination of claims - issues
6.1.4.1 Applications by Primary Applicant bar to any further applications
Amendments made by Migration Legislation Amendment Act (No. 6) 2001 to sections 36(2) and s. 48A of the Migration Act were made to overcome the decision by the Full Court of the Federal Court in Dranichnikov v Minister for Immigration and Multicultural Affairs, [2001] FCA 769 (22 June 2001) which held that any person covered by a family unit application other than the primary applicant was not an applicant for refugee status and therefore not barred from lodging a separate application for a protection visa under s.48 A.
The amendments aim to exclude persons covered by an unsuccessful family unit application from reapplying for refugee status in their own right.
In the case of children who arrive with their families they may not even be interviewed initially to see if they had any separate claim that could have been considered. They are then statute barred from lodging a separate claim. There may be many reasons associated with age and even gender as to why children will not have provided details of their claims.
All refugee claims should be assessed on their individual merits. While the Minister proposes to allow dependent family members to be allowed to put forward refugee claims at a later stage if there are compelling reasons,[55] the Minister's non-compellable discretion is an inadequate and inappropriate safeguard. The inherent dangers of a bar on allowing individuals to present their own refugee claims outweighs any potential advantage to be gained by a person in obtaining a short period of additional time in Australia whilst that application is considered.
Recommendation
Section 48(2)(aa) of the Migration Act be amended to ensure an exception exists to allow children make an independent application where their interests were not adequately represented. This amendment would prevent Australia breaching its obligations under articles 3(1), 12 and 22 of CROC, which provide that the best interests of the child must be taken into account and that the child has a right to participate in proceedings which concern him or her.
6.1.4.2 Credibility
Findings in relation to the credibility of an asylum seeker has become absolutely crucial in order for a claim to be successful.
Credibility issues this may arise in relation to a number of topics:
- Whether an applicant can establish sufficient knowledge of their claimed country of nationality or habitual residence in order to demonstrate that he/she is actually from that country. In this respect DIMIA commonly question applicants regarding political structures, institutions, language, government, geography, culture and customs. Knowledge of such issues may be outside the experience of many children and more "child friendly" and age appropriate questions should be used.
- Whether an applicant can give a consistent account of their claims across a number of interviews. Again this may not be appropriate for children who may be reluctant to talk to a stranger due to embarrassment or emotional upset and past trauma. The fact that a child may reveal an important issue later in the determination process should be considered in that context.
- Whether an applicant can provide a chronological timeline of events. The DIMIA application forms and interview questions commonly require applicants to provide dates of certain events. This may not allow for cultural differences regarding the recollection of events which may not relate to exact dates or ages.
6.1.4.3 Nexus Requirement
This refers to the requirement that persecution be "on account of" one of the five Convention grounds: race, religion, nationality, political opinion, or membership in a particular social group is critical.
The applicant is required to provide some evidence, either direct or circumstantial, that the harm he/she suffered is connected to the persecutor's intention to harm the applicant, based on the applicant's race, religion, nationality, political opinion, or membership in a particular social group.
Recent amendments contained in Migration Legislation Amendment Act (No. 6) 2001 mean that in determining claims the decision maker must be satisfied that the Convention reason is the essential and significant reason for the persecution. [56]
In considering the asylum claim of a child who has filed a separate asylum application, the nexus requirement may be particularly difficult to determine because a child may express fear or have experienced harm without understanding the persecutor's intent. A child's incomplete understanding of the situation does not necessarily mean that a nexus between the harm and a protected ground does not exist.
6.1.4.4 Interview Techniques
Again there are no requirements or guidelines to be followed by DIMIA officers in the interviewing of children.
We note that the UNHCR Guidelines provide:
"8.2 Minimum procedural guarantees should include 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….…..
"8.4 The interviews should be conducted by specially qualified and trained representatives of the refugee determination authority who will take into account the special situation of unaccompanied children, in order to carry out the refugee status assessment."
6.2. Processing Off-shore
The UNHCR, which had agreed to process the asylum seekers from the navy vessel the Manoora, said it would not process a subsequent group, noting that Australia was not following normal asylum procedures. [57]
UNHCR official Ellen Hansen said:
"We consider that the sort of arrangements of basically intercepting asylum seekers on their way to a country and taking them elsewhere for processing is inappropriate and inconsistent with the edifice of asylum that's been built up over years…We think it's more appropriate for them to come to Australia and be processed under Australian law." [58]
In terms of the asylum seekers in Nauru, Manus Island and Christmas Island the Australian government has said that it will meet its international protection obligations under the Refugee Convention by assessing any refugee claims. Unfortunately there is not a great deal of publicly available information about this process. The Hon. Gary Hardgrave described the process being used as follows:
"The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has developed a refugee assessment process for asylum seekers on excised offshore places and declared countries which matches the UNHCR's refugee determination arrangements. This process uses specifically trained DIMIA officers to interview members of these groups. The DIMIA officers actively identify, explore and assess any claims or information, which may relate to a need for refugee protection."
A letter from the MIA to the Minister for Immigration dated 3 May 2002 set out a number of problems with this process:
1. The process is not totally independent.
- The UNHCR's process is one that is independent of the internal politics of any one country. DIMIA officers may be using the same UNHCR determination process, but it cannot be seen as fair and equitable when politicians and Australian Government policy directly influence and control the DIMIA.
2. The process is not always implemented as stated by the Hon. Gary Hardgrave.
- The MIA has heard from an interpreter who has spent two months in Nauru that many interpreters were frequently asked by the DIMIA case officers to take unsupervised statements from the asylum seekers in relation to their claims.
3. The process does not allow a "merits review".
- However, the MIA is aware that if an unsuccessful applicant is brought to Australia under the Migration Amendment Legislation Transitory Bill 2002, the applicant has a right of review to the Refugee Review Tribunal that can be requested after six months of detention in Australia.
4. The process does not allow registered migration agents to be involved.
- At first glance, it may appear that asylum seekers located in Nauru and on Manus Island are being treated in the same way as those located in Australia. This is not entirely correct as applicants in Australia are given the right to consult a registered migration agent. The MIA believes that not all asylum seekers are treated equally and that those located in Nauru and on Manus Island are not being given the independent immigration advice and assistance to which they are morally entitled. Furthermore, this gives the Australian public the impression that the Australian Government does not always act in a fair and just manner.
In a briefing held at the DIMIA offices in Perth on 9 April 2002 DIMIA officers said that the asylum seekers on Nauru and Manus Island were not barred from seeking and having access to legal advice and assistance. The provision of advice is obviously logistically problematic and in addition it is not clear what systems DIMIA is using to process applications so it would be hard to provide useful advice. As the asylum seekers are likely to not have the funds to pay for legal assistance they will be seeking assistance from lawyers to provide assistance on a pro bono basis.
Recommendation: that the asylum seekers currently located in Nauru, Manus Island and Christmas Island the opportunity to access independent immigration advice.
6.3 Procedures used in other countries
6.3.1 Canada
The Immigration and Refugee Board of Canada were the first to introduce specific provisions for children in 1996 via guidelines pursuant to the Immigration Act. The guidelines differentiate between "accompanied" and "unaccompanied" children.
Procedural and evidentiary issues gives primary consideration to " the best interests of the child" and provides for the compulsory appointment of a 'designated representative' for all refugee children, regardless of whether they are accompanied or not. Mandatory criteria relating to that person's age, experience, responsibilities and comprehension skills must be satisfied.
The designated representative's duties are:
- To retain counsel
- To instruct counsel or assist the child in instructing counsel
- To make other decisions with respect to the proceedings or to help the child make those decisions
- To inform the child about various stages and proceedings of the claim
- To assist in obtaining evidence in support of the claim
- To provide evidence and be a witness in the claim
- To act in the best interests of the child.
The following process indicates how children are dealt with in the asylum process:
1. Processing claims of unaccompanied children is a priority. Such children are to be identified as soon as possible, and be given "scheduling and processing priority". The Refugee Claim Officer (RCO) should be assigned immediately, and it is preferred that the same staff deal with the same case from its inception. The same provisions apply to interpreters. These people should be assigned due to their experience.
2. A pre-hearing conference is to be scheduled within 30 days of lodgement of application forms. This can be used to determine what evidence can be provided and the best way it can be obtained.
3. In the assessment of evidence in each case should be considered individually according to the weight to be given to the testimony as well as possible reasons for any 'gaps' in evidence.
There is a great deal of detail in the Canadian guidelines. In particular the procedure of evidence must be explained to the child, ensuring that the nature of proceedings and obligation to tell the truth is understood. The child's level of communication should also be assessed and taken into account. The way in which testimony is heard should be informal, with questioning done in a sensitive manner. Ultimately, the process should be as time efficient as possible.
6.3.2 United States
The United States Immigration and Naturalization Service (INS) issued "Guidelines for Children's Asylum Claims" in 1998. These guidelines are aimed more specifically at unaccompanied minors and the directive purports to give credence to the best interests of the child. Reference to the Canadian standards is made in the INS. However, the United States document is much more comprehensive.
Essentially the guidelines recognise the special difficulties that children face, and aim to counter this as much as possible via such provisions as:
- "Child-friendly" asylum interviews, whereby a 'trusted-adult' is present. Asylum officers must be trained on child specific issues. The guidelines also contain a copy of an "Opening Statement", meant to put the child at ease and facilitate their understanding of the process.
- Child sensitive questioning is defined and great emphasis placed on evaluation of evidence from the child's point of view.
- There are directives for the legal analysis of claims, encouraging more sympathetic assessment of requirements for 'persecution' in children's cases.
- Evidentiary recommendations include application of a "benefit of the doubt" principle to be applied where possible.
- All INS officers in contact with children must read the guidelines and complete an in-service training course reinforcing children's and cross-cultural issues.
There is no current obligation on the US government to supply free legal counsel, however it has been argued that a child's right to counsel should be assessed on the severity of the matter and its outcome, not the matter itself. That means that possible deportation would make asylum seekers deserving of representation. There has not been a test case on this point as yet.
Human Rights groups have also pointed out a "troubling conflict of interest" that exists whereby the INS are both guardians of child asylum seekers and are also responsible for determination of their claims.
6.3.3 Denmark
When an unaccompanied minor has been admitted to Denmark, the authorities will initially decide whether the child is sufficiently mature to explain his or her asylum-motive in the ordinary asylum determination procedure.
- Children above the age of 15 are generally considered to be mature and are automatically called in for an interview with the Immigration Service. On the other hand children below the age of 12 are generally considered as immature, and they are then automatically granted a temporary permission to stay according to the Aliens Act Article 9 (2). The permission to stay is temporary for three years and then becomes permanent.
- In cases of children belonging to the age group between 12 and 15 years the police officer, who conducted the first interview and registration of the child, contacts the Immigration Service and comments on the maturity of the child. The caseworker at the Immigration Service will then decide whether the child is sufficiently mature.
- An unaccompanied child, who is considered sufficiently mature, is processed in the ordinary asylum determination procedure for adult asylum seekers. The only exception is the presence of a representative from the Red Cross at each interview. The representative ensures that the interview is conducted correctly but cannot intervene or take any specific action in each case.
6.3.4 Experiences from Sweden, Norway and the Netherlands
From the Danish Refugee Council:
"Following the regulations of the Swedish Immigration Service, caseworkers interviewing children must have specific skills, have shown interest in working with the children and aim to match the interview to the age, maturity and psychological condition of the child. At present, the four regional Child- and Youth-Units under the Immigration Service have seven child-caseworkers. (Frodlund, Save the Children Sweden p. 29)
"In 1996 the Child and Youth-Unit in Stockholm revised the methods of interviewing unaccompanied children. At present, three caseworkers are dealing with the children's cases, and they are qualified as a pedagogue, a journalist and a lawyer. Since the 1996 revision, children at the age of 5-6 years have been interviewed. The children have between one and six interviews with the caseworker. The interviews are conducted in a more child-friendly way and decisions are discussed within the team of child-caseworkers. All caseworkers interviewing asylum-seekers receive monthly counselling by a psychologist. (Interview with Ann-Sofie Holm, The Swedish Immigration Service, in October 1999)
"In the Netherlands former policemen or teachers interview the children, and the decision in an asylum case is taken by a legal caseworker of the Immigration and Naturalisation Department of the Ministry of Justice. Because of a large increase in the number of unaccompanied minors applying for asylum, the IND has had to employ new interviewers at short notice. They have been recruited among former teachers and pedagogues, and the IND has initiated a program of training new staff in interviewing children, cultural issues etc.
"In Norway the asylum process is under revision and the interviews of asylum seekers will be transferred from the police to legal caseworkers at the Ministry of Justice. Interviews with unaccompanied minors will be handled by caseworkers who have received specific training."
Recommendation
We have had the benefit of seeing the submission from the National Children's and Youth Law Centre that recommends "children .. be interviewed by people trained and experienced in child interview techniques and in working with interpreters. The information needs to be obtained from children in a manner that will elicit the most information from them. The method of obtaining information from children should be different from that applied to adults." (at page 18).
This recommendation is in accordance with the UNHCRs Guidelines of Refugee Children article 5.12 and 5.13 which state that it is desirable that all interviews with unaccompanied children are carried out by professionally qualified persons and persons specially trained in refugee and children's issues and as far as possible, interpreters should also be specially trained persons.
The claims of unaccompanied children should be examined in a manner which is both fair and age appropriate. (Article 4.2)
7. POST DETERMINATION
Standards set by the Convention on the Rights of the Child
Each child "should grow up in a family environment, in an atmosphere of happiness, love and understanding" (Preamble).
A child's right to "identity, including nationality, name and family relations" should be preserved whenever possible (art. 8.1).
In creating alternate care solutions for an unaccompanied minor, "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" (art. 20.1).
7.1 Application Accepted
7.1.1 Temporary Protection Visas On shore
The ("TPV") for unauthorised arrivals was introduced in October 1999. The visa lasts for 3 years (36 months) with people able to apply for permanent protection visa after 30 months. This means that the first TPV holders will be coming up for their PPVs to be assessed in 2002. How they will be assessed depends on whether they lodged their applications for PPVs (form 866) before or after 27 September 2001.
If the application lodged before 27 September 2001 to get the Permanent Protection Visa he or she must show that if he or she still has a continuing need for protection in Australia.
If the application is lodged after 27 September 2001 a TPV holder will cannot be granted a permanent protection visa if he or she has, since leaving his or her home country resided, for a period of at least 7 days, in a country in which they could have sought and obtained effective protection:
-
- of the country; or
- through the offices of the United Nations High Commissioner for Refugees located in that country.
7.1.2 Temporary Protection Visas Offshore
On 27 September 2001, the Government created a new TPV - Subclass 447 Secondary Movement Offshore Entry (Temporary). The amendments provide that asylum seekers who arrive in the territories excised from the Australian migration zone will be known as "offshore entry persons" (s. 5(1) of Migration Act).
- They are prohibited from applying for a visa in Australia unless the Minister allows them to if it is in the "public interest" (s46A)
- In applying from off-shore they are eligible for Subclass 447 Secondary Movement Offshore Entry (Temporary) 36 Month temporary visa and they are not eligible for a PPV (866.214).
The Minister, however, may waive this requirement if he is satisfied that it is in the public interest to do so. The power to waive is not personal to the Minister - it can (and will be) delegated and a refusal to exercise the waiver will, prima facie, be reviewable by the RRT. It is important to realise that there is no ban on a subclass 447 visa holder making the application for the 866 - the application will be valid and must be assessed by DIMA. However, success depends entirely upon gaining the waiver.
7.1.3 Can holders of subclass 447 and 785 visa Holders (post Sept 27 2001) visas ever get permanent residence?
While there is no ban on 447 visa holders applying for a permanent subclass 866 protection visa. Valid applications can be lodged and must be assessed by the DIMIA.
They will, however, face the additional hurdles described above. Applicants who are unsuccessful in obtaining a permanent visa will be assessed against criteria for a 785 visa and, in all probability, will be granted that visa. A failure to gain permanent protection will not result in people being deported back to countries where they may face persecution.
Obviously, however, this is far from satisfactory. The goal of all refugees is to reestablish a life, be reunited with family members, recover from trauma and plan for the future. This is extremely difficult - if not impossible - when life must be lived on a succession of temporary visas.
7.1.4 Lack of Information about the process
The process to be used toward the end of the 30 - 36 month period is leading to high levels of anxiety among TPV holders.
In WA, SCALES has been involved in a community project with a number of other NGOs and Community Legal Centres such as the Association for Torture and Trauma Survivors (ASeTTS); the Coalation Assisting Refugees After Detention (CARAD) and the Sussex Street Community Legal Service (SSCLS) in order to provide assistance to TPV holders in WA.
The project aims to recruit, train and organise a group of volunteer migration agents, solicitors, students and refugee advocates to assist TPV holders when their visas are reviewed. We have had meetings with the WA Executive Director of DIMIA who advised that they were waiting on a directive from the Minister as to how to process applications.
The uncertainty of the process and uncertainty regarding the future leads to high levels of frustration amongst TPV holders. Similarly it is also very difficult for refugee advocates to provide advice.
7.1.5 Importance of permanency
It is clear that durable solutions particularly for unaccompanied children is vitally important. It then allows the child to adjust to their new life here and settle.
Case Study
SCALES met with a group of eight unaccompanied minors (15 - 18 years old) from Afghanistan to explain to them the changes to the TPV made in September 2001. During the discussion it became apparent that the impermanence of their TPVs had a limiting and subduing effect on their motivation to integrate into Australian society. The strong sentiment amongst the boys was that there was no real point to undertaking further education or forming relationships in Australia as there was a real chance that they could be back in their country of origin within a few years. They felt then that if they were to return they would be better served to work now and save money. There was also a strong feeling of non-acceptance of them by the Australian government and they showed pessimism regarding their situation improving.
The effect of the TPVs in this instance resulted in a fractured nationality, insofar as they felt like "temporary Australians" or extended visitors. In a sense, the acquisition of a TPV did not equate to the acquisition of an Australian nationality or identity for them.
The uncertainty of their TPVs, the disinclination to continue with education or form meaningful relationships will certainly have detrimental effects on their long-term development and integration.
7.1.6 Reunification of family
Perhaps the most difficult aspect of the TPV is that it does not allow for family members to be sponsored to Australia, nor does it allow the TPV holder to return to Australia if they want to leave to visit family members.
Statistics from DIMIA show that in the period between October 1999 and September 2000 42% of unauthorised arrivals had members of their family unit (i.e. spouse and or children) overseas.
The importance of the reunification of the family unit is recognised by the international community.
Resolution adopted by the General Assembly
[on the report of the Third Committee (A/56/578)]
56/136. Assistance to unaccompanied refugee minors
15 February 20026. Calls upon all Governments, the Secretary-General, the Office of the High Commissioner, all United Nations organizations, other international organizations and non-governmental organizations concerned to exert the maximum effort to assist and protect refugee minors and to expedite the return and reunification with their families of unaccompanied refugee minors;
7. Urges the Office of the High Commissioner, all United Nations organizations, other international organizations and non-governmental organizations concerned to take appropriate steps to mobilize resources commensurate with the needs and interests of unaccompanied refugee minors and for their reunification with their families
Recommendation
Provide permanent, rather than temporary, protection visas for all children found to be refugees.
7.2 Application Rejected
If an application for a protection visa is rejected by the Refugee Review Tribunal there is practically no legal aid for an appeal to the Federal Court. However judicial review is extremely limited due to recent amendments that further narrow the grounds of appeal under the Migration Act. [59]
The fact that unaccompanied minors are not provided with any legal advice or assistance at the appellate level is contrary to the guidelines as set by the UNHCR. This was commented on by French J in Jaffari v. MIMA:
"The Act provides little in the way of the kinds of protections contemplated by the UNHCR guidelines. At the very least, there is a case for considering the provision of legal advice and assistance to unaccompanied minors up to and including the point of judicial review. It is of concern that the application for judicial review in this case was lodged by a 15 year old non-citizen and lodged out of time thus depriving him of such limited rights of review as he would otherwise have enjoyed."
1. http://www.immi.gov.au/detention/women.htm
2. CROC, Arts. 1 & 22; Hague Convention for the Protection of Children, 1996, Art.6 ; UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997), para.3.1;
3. Australian Law Reform Commission 84, 4 Children in the legal process.
4. Ibid.
5. Ibid.
6. Ibid.
7. Gillick v Norfolk and Wisbech Area Health Authority (1985) 3 All ER 402.
8. Secretary, Department of Health and Community Services v JWB and anor (1992) 175 CLR 215, 293.
9. ALRC 84, 4. Children in the legal process.
10. SA dept of Family and Community Services IP Submission 100 in ALRC 84, 4. Children in the legal process.
11. Multicultural Interest Group IP Submission 137, in ALRC 84, 4 Children in the legal process.
12. Mon is a language spoken by the Mon people in Burma (Myanmar) an ethnic minority.
13. See Immigration and Naturalisation Service, Guidelines For Children's Asylum Claims, December 10, 1998.
14. Danish Refugee Council, Unaccompanied Children in the Danish Asylum Process, April 2000, at page 5.
15. Everett M. Ressler et al., Unaccompanied Children: Care And Protection In Wars, Natural Disasters, And Refugee Movements 121-22 (1988).
16. S. Maslen, "Relevance of the Convention on the Rights of the Child to Children in Armed Conflict", 6 TRANSNAT'L L. & CONTEMP. PROBS. 329, 334 (1996).
17. "Repatriation and Reintegration of Unaccompanied Refugee Children", MIGRATION WORLD MAG., Jan. 1, 1998, available in 1998 WL 15705012.
18. Maslen, supra note 16 , at 334
19. C. Berthiaume, "Alone in the World," (1994) Refugees Magazine, available through http://www.unhcr.ch
20. C. Gates, "IMMIGRATION PROJECT: Working Toward a Global Discourse on Children's Rights: The Problem of Unaccompanied Children and the International Response to Their Plight" (1999) 7 Ind. J. Global Leg. Stud. 299.
21. C Croce "Towards a national rural youth policy" (1994) Transitions 26.
22. D. Silove, Z. Steel & C. Watters, "Policies of deterrence and the mental health of asylum seekers," (2000) 284 Journal of the American Medical Association 604 - 611.
23. Human Rights and Equal Opportunity Commission. Those Who've Come Across the Seas: The Report of the Commission's Inquiry Into the Detention of Unauthorised Arrivals. Canberra: Commonwealth of Australia; 1998.
24. Migration Act 1958 ss 189, 196.
25. Conclusion 44 (1986) of the Executive Committee of the UNHCR.
26. Joint Standing Committee on Foreign Affairs, Defence and Trade, "Processing and Related Issues" in Completed Inquiry: Visit to immigration centres 2001 at www.aph.gov.au/house/committee/jfadt/ 73.
27. Ibid.
28. Ibid at 74.
29. Ibid.
30. Ibid at 78.
31. At page 37.
32. Section 2.4.1 of the Procedures Advice Manual
33. 9.2.1in Procedures Advice Manual 3
34. X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524 and X v Minister for Immigration & Multicultural Affairs [2000] FCA 704 (29 May 2000).
35. [2001] FCA 985 (26 July 2001)
36. Defined in s 4AAA for these purposes as a child who has "not turned 18; enters Australia as a non-citizen; and intends, or is intended, to become a permanent resident of Australia."
37. Senate Community Affairs References Committee, Parliament of Australia, Lost Innocents: Righting the Record (2001) at page 20.
38. Ibid at page 26
39. See comments by French J Jaffari v MIMA
40. See M. Rayner, "Political Pinballs: The plight of child refugees in Australia" 2001 Walter Murdoch Lecture, 31 October 2001 (http://wwwcomm.murdoch.edu.au/lectures/murdoch_rayner.html)
41. Senate Community Affairs References Committee, Parliament of Australia, Lost Innocents: Righting the Record (2001) footnote number 59 at pp 26 - 27
42. Ibid at pp 27 - 28 quoting from DIMA's submission.
43. See section 5.1.2 of these submissions.
44. Transcript from the Sunday Programme, Channel Nine, "The Trauma of Refugee Children" May 5, 2002 available at http://news.ninemsn.com.au/sunday/cover_stories/article_1045.asp
45. Senate Community Affairs References Committee, Parliament of Australia, Lost Innocents: Righting the Record (2001) at p 114
46. Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516 at para 43.
47. From US Committee for Refugees, Sea Change: Australia's New Approach to Asylum Seekers, February 2002.
48. Ibid at page39.
49. Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJ
50. [2001] FCA 313.
51. US Committee for Refugees, Sea Change: Australia's New Approach to Asylum Seekers, February 2002, at page 19.
52. Ibid.
53. Human Rights Commission Report no 6, The Observation of Human Rights at Villawood Immigration Detention Centre. Australian Government Publishing Service, Canberra, 1983: 21.
54. Department of Immigration and Multicultural Affairs, Refugee and Humanitarian Visa Applicants Guidelines on Gender Issues for Decision Makers, July 1996, Paras 3.12 and 3.13: reprinted in International Journal of Refugee Law (special issue, Autumn 1997) at 195.
55. Section 48B Migration Act.
56. Section 91R(1)
57. "UN body refuses to process Tobruk asylum seekers," AAP Newsfeed, 10-2-01
58. "UNHCR rules out assessing Tobruk asylum seekers,"AAP Newsfeed, 10-2-01
59. Migration Legislation Amendment (Judicial Review) Act 1998 which came into force on 27 September 2001.
Last Updated 9 January 2003.