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11 Children indefinitely detained

As of August 2014 there were nine children in detention centres in Australia with parents who had received adverse security assessments from the Australian Security Intelligence Organisation (ASIO). These children are indefinitely detained in Australia because at least one of their parents has received an adverse security assessment.

These families have also been assessed as refugees, however, and therefore cannot return to their country of origin because of a well-founded fear of persecution.

This chapter contains case studies which illustrate the detrimental impact of indefinite detention on the children and their families. These case studies are based on Department of Immigration and Border Protection case files, health files and submissions and interviews conducted by Inquiry staff from the Commission.

11.1 Refugees with adverse security assessments

Present government policy requires that refugees with adverse security assessments remain in detention unless or until a third country agrees to resettle them. The chance of third country resettlement for a refugee with an adverse security assessment is extremely unlikely. As a result, these individuals and their children face an uncertain future in indefinite detention.

Refugees who have received adverse security assessments have not been charged with or convicted of any crime. They are being detained on the basis that they pose a risk to security according to an assessment by ASIO.

For many years the Commission has raised concerns about these refugees and their children.[485] The Commission has repeatedly urged the Australian Government to consider and utilise alternatives to indefinite detention while other solutions are explored.

In July 2012, the Commission provided a report to the then Attorney-General about the situation of ten Sri Lankan refugees and three children indefinitely detained as a result of adverse security assessments.[486] The report found that the Commonwealth failed to consider alternatives to detention for children in a way which would be in their best interests, while mitigating any risks to security. Ultimately, the Commission assessed that the detention of the children was arbitrary and in breach of article 37(b) of the Convention on the Rights of the Child and article 9(1) of the International Covenant on Civil and Political Rights.

In October 2012, the Attorney-General announced an independent review process for refugees not granted a permanent visa as a result of an ASIO adverse security assessment.[487] The Independent Reviewer commenced work in December 2012.[488]

In May 2013, the Commission released a second report regarding eight refugees with adverse security assessments and one child.[489] The report found that the Commonwealth failed to consider available alternatives to locked detention for the child and its mother in a way that would be consistent with the best interests of the child, while mitigating any risks to security. In this case, ASIO chose to reassess the adverse security assessment of its own motion and the mother and child were released from detention and were able to apply for a protection visa.[490]

In June 2013, the Independent Reviewer recommended that ASIO reassess the adverse security assessments of the parents of the three children who were the subject of the Commission’s July 2012 report. In accordance with those recommendations, ASIO withdrew the adverse security assessments and the family with three children was released on bridging visas subject to reporting conditions.[491]

In July 2013 the United Nations Human Rights Committee found that the indefinite detention of 46 people with adverse security assessments (including the two families with children identified in the Commission’s reports) was arbitrary contrary to article 9(1) of the International Covenant on Civil and Political Rights.[492] The Committee recommended that the Australian Government provide each of the people with an effective remedy, including their release under individually appropriate conditions, rehabilitation and appropriate compensation. The Australian Government has yet to respond to the Committee’s decision, as was required by February 2014.

This chapter explains the cases of the nine children who are currently in indefinite detention in Australia as at August 2014.

11.2 Sydney Detention Centre

This is a beautiful graveyard.

(16 year old girl, Sydney Detention Centre, 30 March 2014)

There are nine children with parents who have adverse security assessments living at Sydney Detention Centre. In March 2014 the Inquiry visited Sydney Detention Centre and spoke to the children and families detained there.

Sydney Detention Centre is a low security detention centre, predominantly used to detain families with children, unaccompanied children and individuals with particular vulnerabilities. Unlike many of Australia’s detention centres, Sydney Detention Centre was purpose-built. The facility contains four duplex houses, each of which has three bedrooms, two bathrooms, shared kitchen, living and dining areas and a garage area that can be used for visits. The houses face a common area which contains grassy space and a small garden. There is a children’s playground, a basketball half-court and a small undercover recreation area. It is next to Villawood Detention Centre.

The facilities are highly preferable to other detention facilities in Australia. However, Sydney Detention Centre is still a locked detention facility where people are not free to come and go.

The Inquiry team noticed a high level of surveillance and strict security measures at the Sydney Detention Centre. For example, children’s bags are checked daily before and after school. The movement of children is closely monitored and recorded through closed-circuit television cameras throughout the facility. Video recordings are used to discuss the conduct of children and their parents. The Inquiry team was told that after a child spilt some food in the visiting area, a Serco officer showed the parents CCTV footage to prove that the child caused a mess. The parent described this practice as embarrassing and humiliating.

Case Study 10: The trauma of detention for two young brothers[493]

In 2012, a Sri Lankan woman and her two sons, RP aged 5 years, and NP, aged 7 years, sought asylum in Australia after arriving by boat. The mother and her two sons were transferred across many detention centres on Christmas Island and mainland Australia before being reunited with the boys’ father in a detention centre in 2013. Their father had arrived in Australia in 2010. He has remained in detention since his arrival because he received an adverse security assessment.

In January 2013, a referral for a Community Detention placement was made for the two boys and their mother. However, as the father received an adverse security assessment he is ineligible for Community Detention. Rather than being separated, the family advised the Department in August 2013 that they no longer wished to be considered for a community placement, as they wanted to stay together. The child psychologist treating both boys recommended against the family separation as it would increase the risk of psychological harm.

Both RP and NP arrived in Australia with a history of trauma and the detention environment has negatively impacted on their development and psychological wellbeing.

NP’s mother described his experiences before arriving in Australia:

[NP] left Sri Lanka when he was 4 years old. When we were trying to escape we had to hide in bunkers to protect ourselves from the shelling by the Sri Lankan army. It was during one of these incidents that [NP] witnessed the death of his maternal grandmother ... [He] was brought up in an environment of violence due to the war.

RP witnessed his father being shot by the Sri Lankan army and recalled traumatic incidents of the boat journey to Australia, which lasted 45 days. Prior to travelling to Australia, both boys were detained in an Indonesian jail with their mother.

Both boys have regularly met with a child psychologist in detention. The psychologist observed that the boys’ previous traumatic experiences increased the likelihood that detention would have a negative impact on their psychological wellbeing:

[They] have witnessed and recall the trauma they have experienced. Their extensive history of trauma, to name a few, witnessed people being shot, experienced being bombed, lived in bunkers, significantly increases the possibility of being re-traumatised by current stressors.

Impact of detention on RP

RP told the psychologist that his house reminds him of a bunker and he is unable to stay alone at night. He suffers from nightmares and sleep walking. He stated that being in detention was making him sad and he would often cry. The psychologist reported that:

His sleep walking could be due to past trauma, uncertainty of leaving detention, and retriggered by being in detention, which he associates as being in jail.

The detention environment has impacted on RP’s sense of self-worth. In sessions with his psychologist he spoke about not being the same as other children. The psychologist noted that RP was:

Unable to experience aspects of his childhood due to the limitations posed by being in detention. He appears to have low self-worth contributed by being in detention.

In July 2014 the psychologist found that:

[RP’s] development has been impacted due to the trauma he experienced and being detained indefinitely at this stage. He exhibits anxiety and depression symptoms at present.

Impact of detention on NP

The detention environment has also negatively impacted on NP’s development:

[NP’s] development continues to be impacted whilst remaining in detention as his symptoms continue to fluctuate and continue to be impacted by living in a restricted environment.

NP expressed concern to the psychologist that his family had been detained because he was ‘bad’. NP questioned whether he was bad, speaking of incidents in which he observed himself to be ‘good’.

In March 2014, the psychologist reported that the negative thoughts experienced by NP ‘would consistently resurface as he continues to remain in detention ... it appears remaining in detention continues to trigger him and will impact his development’.

During sessions with the psychologist both brothers consistently asked when they would leave detention.



Both boys were described by detention staff as being happy and respectful to their parents and others and as showing enjoyment in attending school and engaging in activities. However, the psychologist reported that:

[The] brothers mask their true feelings in order to function on a daily basis. Therefore a false perception that they are doing well is given to service providers.

In July 2014, the psychologist concluded that the detention environment was not appropriate for either brother:

[Their] symptoms and behaviours are a reflection of the trauma they have experienced, uncertainty of leaving detention, length of time in detention and the impact of the parent’s current mental health. The above concerns significantly increase the risk of re-traumatisation and psychological harm. These issues are only likely to be exacerbated if left unaddressed. Given their age and the above concerns, this matter needs to be resolved as a matter of urgency.

The psychologist has repeatedly recommended that the family be moved to Community Detention as a family unit, adding that separation would increase the risk of psychological harm to both boys:

The children are best placed in the care of both parents in the community. If the children are placed in the care of only the mother, this would increase the risk of further psychological harm and neglect as the mother is unable to provide full time care for the children due to her current mental health at this stage.

 

The family remains in detention.

 

Case Study 11: Mother with adverse security assessment

SC is a mother who travelled to Australia by boat with her two young sons aged 7 and 4, to seek asylum in 2010. She and her sons were detained for over one year before being released into Community Detention in 2011. They were found to be refugees that same year. While in Community Detention, SC met JC and they were married in April 2012.

One month later SC received an adverse security assessment and was re-detained with her sons in Sydney Detention Centre. Shortly after being re-detained, SC found out she was pregnant. SC and JC’s son, Baby M, was born in detention in January 2013.

Although SC’s two eldest sons received permanent protection visas in June 2013, they initially continued to live in detention with their mother. During their time in detention they were reported to have been bullied at school because they lived in detention and were escorted to school by Serco officers. They were reportedly spat on, called names and had water tipped on them by other students. The bullying reportedly occurred for 18 months at one school. The boys subsequently refused to attend school, crying in the morning and pretending to be sick. The boys’ exposure to the detention environment reportedly resulted in the development of behavioural issues.

In January 2014, SC decided that the boys should move in with their stepfather in the community. Both boys have been experiencing nightmares. The eldest boy sometimes sleepwalks and has problems with bowel and bladder control. The younger son is bedwetting, not eating well, and is always crying. A psychiatrist has noted that ‘it is highly likely that the boys are suffering from anxiety disorders’.

While at the Sydney Detention Centre, SC and Baby M occupy one bedroom in a three-bedroom house, which they share with two other female detainees and a child. SC requested that she and her baby be moved to a one room unit where she and Baby M can have more space and privacy. This was refused by the Department.

SC is allowed to visit her husband and sons in their family home on a weekly basis. However a Serco officer is continually present, and this creates tension and stress for the family. Two Serco officers accompany SC and sit on the family sofa while she engages with her family. JC reports that on one occasion SC was breastfeeding in the bedroom and a male Serco officer tried to walk into the bedroom saying ‘this is the way the rules are’.

SC is not allowed a mobile phone. According to SC, her sons become angry and frustrated when they cannot contact her.

SC’s mental health began to decline significantly in 2014, culminating in a brief period of hospitalisation in July 2014. On her discharge, SC was diagnosed with major depression. In July 2014 her mental health was such that she was not able to care for Baby M, who was then transferred to the care of his father for a brief period of time. During this time he would visit SC daily to enable SC to breastfeed.

A psychiatric assessment of SC by Dr Michael Dudley in July 2014 noted a ‘significant progressive deterioration of her mental health’ and diagnosed SC with clinical depression. The report states that: ‘immigration detention is substantially contributing to SC’s mental illness and it is also adversely affecting everyone else psychologically, especially the children’.

The report notes that SC’s access to mental health support while in detention has been limited, on account of SC’s lack of confidence in engaging with health professionals from International Health and Medical Services. She has had limited access to counselling sessions due to the cancellation of counselling appointments by Serco officers. There has not been an ongoing psychiatric assessment of SC by the International Health and Medical Services. The report notes that the children had not been assessed by a mental health professional during their time in detention, despite the obvious impacts that the detention environment was having on them.

The psychiatrist recommended that SC be released into the community to be reunited with her children and husband and suggests that failure to do so will create enduring mental problems for SC in the future.

Despite this assessment, SC remains in detention with her baby, separated from the rest of her family.

 

Case Study 12: Family with six children

We are suffocating like a fish that is kept out of water.[494]

A family of two parents and six children arrived at Christmas Island by boat in May 2012, seeking asylum in Australia. As at August 2014, the mother and children are detained in Sydney Detention Centre. The father has received an adverse security assessment from ASIO and is detained in the adjacent Villawood Immigration Detention Centre. The family had asked not to be separated. When the Inquiry team conducted interviews at Sydney Detention Centre, the four older daughters were 18, 16, 15 and 13 years old. The sons were 10 and 3 years old.

Prior to arriving in Australia, the family had been in immigration detention for a number of years in the United Kingdom and Iran. They spent two years in Indonesia before taking a boat to Australia. The older girls wrote to the Commission during the course of the Inquiry and said:

We have been travelling from one to another for many years, seeking protection, trying to find out what it means to be free and safe. We have been persecuted and discriminated against throughout our life. Unfairly we spent almost 8 years in detention only based on our race. Finally we were released after spending most [of] our childhood locked up without any reason. Again we had to travel to a couple of countries in our search for safety and a normal life. We followed all legal methods available; we waited for the UNHCR in Indonesia for two years in which we never received any reply at all. After losing hope, the only choice we had was to risk our lives by taking a dangerous journey on a little wrecked boat to seek refuge to Australia. Our two younger brothers are detainees since birth and we have spent most our life in detentions! Only God knows when this suffering will end.

We came to Australia with our hearts full of hope that our sufferings, fear and looking over our shoulders will come to an end. Unfortunately, Australia had welcomed us with a new chapter of two years and a half of sufferings and pain for more than two years and a half, adding to the already existing devastating past.

Only to make things worse for us, the Immigration department has separated us from our dad within the same detention centre for almost one a half year. We have been threatened, mentally tortured, discriminated and provoked against all the time we have been in this dark cage.[495]

The 15 and 13 year old girls were born while the family was in the United Kingdom. TA, the 15 year old girl, told the Inquiry that she felt insecure and lonely in detention. IA, the 13 year old girl, said:

I feel like I’m always sad. I have lost hope and everything. Whenever I think about what’s happening to us, I feel like crying. ...

I really thought everything was going to end when I got to Australia. I was going to be like the others – like other kids. I don’t think that my dad or my family have done anything wrong but we’ve always been treated unfairly. We weren’t expecting this to happen. We thought that we would be treated fairly – the way it’s supposed to be.

IA said that she had nightmares about her father in the detention centre next door. She said:

I always dream that he is never going to come back to us.

11.3 Findings in relation to children indefinitely detained

Some children have been detained for longer than 27 months because at least one of their parents has an adverse security assessment by ASIO. The indefinite detention of these children raises special concerns for their physical and mental health and their future life opportunities.



Children with at least one parent who has an adverse security assessment by ASIO may be subject to extremely long periods of detention. The failure of the Commonwealth to consider less restrictive detention alternatives for these families would be a breach of the Convention on the Rights of the Child, article 37(b).

[485]Links to the Commission’s work in this area, including a fact sheet, are available at www.humanrights.gov.au/refugees-adverse-security-assessments (viewed 17 September 2014).

[486]Sri Lankan refugees v Commonwealth of Australia (Department of Immigration & Citizenship) Report of an inquiry into complaints by Sri Lankan refugees in immigration detention with adverse security assessments (2012) AusHRC56. At http://www.humanrights.gov.au/publications/aushrc-56-sri-lankan-refugees-v-commonwealth-australia-department-immigration (viewed 17 September 2014).

[487]The Hon N Roxon MP, Attorney General, ‘Independent Reviewer for Adverse Security Assessments’ Media release (16 October 2012). At http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Media-releases/Pages/2012/Fourth%20Quarter/3December2012CommencementofIndependentReviewerofAdverseSecurityAssessments.html (viewed 19 September 2014).

[488]The Hon N Roxon MP, Attorney General, ‘Commencement of Independent Reviewer of Adverse Security Assessments’ (3 December 2012). At http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Media-releases/Pages/2012/Fourth%20Quarter/3December2012CommencementofIndependentReviewerofAdverseSecurityAssessments.html (viewed 19 September 2014).

[489]Immigration detainees with adverse security assessments v Commonwealth [2013] AusHRC 64. At http://www.humanrights.gov.au/publications/immigration-detainees-adverse-security-assessments-v-commonwealth-australia-department (viewed 17 September 2014).

[490]Australian Broadcasting Corporation, ‘Asylum seeker to be freed after ASIO overturns adverse security assessment’ (23 May 2013). At http://www.abc.net.au/news/2013-05-22/asylum-seeker-to-be-freed-after-asio-backdown/4707258 (viewed 19 September 2014).

[491]D Flitton, ‘Refugee family free as ASIO assessment overturned’ Sydney Morning Herald (12 June 2013). At http://www.smh.com.au/federal-politics/political-news/refugee-family-free-as-asio-assessment-overturned-20130612-2o4vq.html (viewed 19 September 2014).

[492]See Human Rights Committee, F.K.A.G. et al v Australia, Communication No. 2094/2011, UN Doc CCPR/C/108/D/2094/2011 (2013). At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/108/D/2094/2011&Lang=en (viewed 17 September 2014); M.M.M. v Australia, Communication No. 2136/2012, UN Doc CCPR/C/108/D/2136/2012 (2013). At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f108%2fD%2f2136%2f2012&Lang=en (viewed 17 September 2014).

[493]Department of Immigration and Border Protection, Item 11, Schedule 3, Second Notice to Produce, 11 July 2014.

[494]Letter from girls detained in Sydney Detention Centre to the Australian Human Rights Commission received 19 August 2014.

[495]Letter from girls detained in Sydney Detention Centre to the Australian Human Rights Commission received 19 August 2014.