National Inquiry into Children in Immigration Detention

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Submission to the National Inquiry into Children in Immigration Detention from

the Refugee Advice Casework Service (RACS)

Refugee Advice Casework Service (RACS) is a Community Legal Service which provides free legal advice and representation to asylum seekers in the community and detention in Australia.

RACS has represented and provided advice to asylum seekers in Villawood Immigration Detention Centre (VIDC), Woomera, Port Hedland and Curtin Immigration Reception and Processing Centres (IRPC). RACS has represented child asylum seekers as part of families and also those who do not have members of their family unit in Australia.

RACS receives funding from the Department of Immigration Multicultural and Indigenous Affairs to provide application assistance through the Immigration Advice and Application Assistance Scheme (IAAAS) to protection visa applicants in Villawood and the remote detention centres and to limited community applicants.

RACS prepares this limited submission to address two specific issues of concern regarding the current practices of DIMIA within Australia's detention regime which impact differentially on children. We advise that the issues contained in this submission are relevant to points three and five of the terms of reference. The fist issue is the practical right to apply for asylum in Australia and the second is the removal of people from Australia. RACS opposes mandatory detention moreover the detention of children.

The right to apply for asylum in Australia: 'screening in' and 'screening out' of people in detention.

People in Australian immigration detention centres are comprised of two main groups of being 'unauthorised arrivals' and people who have been in the Australia community. The term unauthorised arrivals refers to people who arrive in Australia without a valid passport or visa, are not immigration cleared and go directly to detention. In addition to unauthorised arrivals people are put in immigration detention if they are in the Australian community but do not have a valid visa and come to the attention of DIMIA.

Unauthorised arrivals are interviewed within a few hours if by plane or a few days or weeks if by boat by officers of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). The purpose of the interview is to assess among other things whether the person appears, on the face, to require protection in Australia. The DIMIA officer assesses the information provided by the unauthorised arrival with a view to identifying if the person claims persecution for a reason stipulated in the Convention.

The entry interview is conducted without the interviewee receiving information about Australia's protection obligations, or legal advice or representation. We note that DIMIA refuses to provide copies of the tape or transcripts of these interviews through the Freedom of Information process. (In the past DIMIA has provided the record of such interviews through the Freedom of Information process and therefore some analysis of these interviews is possible.) Problems identified with the interview process include the duration of the interview, quality of interpreter, emotional, physical and psychological condition of the interviewee which all affect his or her ability to answer questions accurately. There are also concerns about the accountability of the decision-maker in 'screening in' or 'screening out' the interviewee.

The aforementioned process is no different for children. If a child is part of a family unit it is uncertain whether a child will even be interviewed by DIMIA. In our experience DIMIA does not interview children who are part of a family unit to determine whether they have claims independent of their family. In this regard the fate of the child resides with the screening of their family. We have not been able to obtain any DIMIA policy in this regard.

However for children who are not part of a family unit in which someone is claiming asylum or are unaccompanied the outcome of the child's 'screening' is determined by their own statements. These children will need to enunciate reasons for their fear of return to their country of origin for one of the five Convention reasons. We note that it does not appear sufficient to be of a class of people who may be persecuted if those reasons are not expressed. The interview is not conducted in the presence of a support person or representative of the child, nor is any information provided to the child about what are their rights in seeking asylum or the definition of a refugee. The children do not receive legal representation prior to this interview and are not informed of their right to obtain advice.

Often the children being interviewed originate from countries in which there has been severe political or civil unrest and acts of oppression have been committed by people in authority. Trauma experienced by children related to persons in authority as well as the general trauma associated with treatment in their countries of origin, leaving their country and travelling abroad and, detention in Australia increase the trauma and distress experienced by the child. We are concerned that in these circumstances children may be not able to express their fears or situation completely. We also submit that a child's subjective fear may be expressed in a manner that does not reflect a Convention basis for a refugee claim but nevertheless this Convention nexus may exist.

The Migration Act 1958 (s256) provides that access to legal advice is possible if a request by the person detained is made. In practice requests for access to legal advice are difficult unless a person has been screen in for the purposes of making a protection visa application and are then referred to a migration agent through the IAAAS program. Apart from s 256 the act is silent on the rights to access legal advice and no provisions are made for children who have not been determined by DIMIA to be eligible to apply for a protection visa to receive legal advice. We also note that the legal advice provided relates only to migration issues.

Deportations of 'screen outs' and children

Following the entry interview the unauthorised arrival will either become an 'asylum seeker' or a 'screen out'. The 'asylum seeker' will be referred to a migration agent and receive migration assistance to lodge a protection visa. On the other hand a 'screen out' is viewed as someone with no legal basis to remain in Australia and therefore must be detained and deported at the earliest opportunity. As detailed in Peter Mares book 'Borderline', in 1998- 1999, 1457 airport arrivals without valid documentation were deemed not to invoke protection obligations and were removed from Australia within 72 hours. The situation in remote detention centresis less clear because of lack of information.

In the remote detention centres the 'screen out' is to be held in a different section of the centre to asylum seekers who are allowed access to legal assistance and allowed to make a protection visa applications. Those 'screened out' do not receive legal assistance and in theory do not have contact with people who have had access to legal assistance not outside the detention centre. These people are awaiting removal. Due to this lack of contact it is very difficult to identify when people have been screened out and what has happened to them.

However, in Woomera IRPC there have been young people who have made claims that they are from a particular persecuted ethnic group in Afghanistan, 13-14 years old without relatives in Australia, and have been 'screened out' or not received legal assistance for at least a four to five month period. There have also been people in Villawood IDC claiming to be aged 14 or 15 who after being interviewed by DIMIA have been taken to the embassy of their country of origin to obtain travel documents to return home.

During these processes these people had received no legal advice nor was any other person apart from DIMIA employees or interpreters present at various interviews with DIMIA. In considering the procedures of DIMIA to attempt to deport persons claiming to be children we are concerned that the child involved may not have legal capacity to consent to DIMIA requests. At the very least we submit that such consent is not informed when the child is not provided with information regarding their rights in Australia. We also question the ability of a DIMIA officer, who is charged with the duty of arranging removal from Australia and who is also not permitted to explain various options and legal rights to a person, to obtain consent from a child as to whether they agree to be deported.

Recommendations:

The Migration Act 1958 should be amended to require the provision of legal services for any unlawful non citizen who claims to be, or is suspected of being, or has documents to indicate they are under eighteen years old on arrival in Australia or when they come to the attention of DIMIA or related government bodies or corporations assisting DIMIA in immigration matters.

Written policy guidelines be developed within DIMIA regarding the appropriate training, notification and interviewing procedures to be followed by DIMIA caseofficers.

Last Updated 9 January 2003.