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National Inquiry into Children in Immigration Detention



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Submission to National Inquiry into Children in Immigration Detention from

Good Shepherd Youth and Family Service

"Protection is not a simple concession made to the refugee: he is not an object of assistance, but rather a subject of rights and duties. Each country has the responsibility to respect the rights of refugees and assure that they are respected as much as the rights of its own citizens" [1]

"Catholic Social Teachings have called upon society to welcome persons experiencing persecution and to respect the human dignity of all people. The note that we all belong to one human family and as such have obligations to promote the rights and development of all peoples across the world irrespective of national boundaries." [2]

"The gospel teachings enjoin all to care for the orphan, the widow and to welcome and care for the stranger."

(Is. 58:6-7; Matt25:34-46.)

HISTORY

Good Shepherd Youth and Family Service is a work of the Good Shepherd Sisters who are a French order of Catholic Nuns founded in 1835 by Sr. Mary Euphrasia with the mission of providing protection for socially disadvantaged women and children.

The Good Shepherd Sisters arrived in Melbourne from Angers France in 1863 at the request of the Bishop of Melbourne, James Goold.

Good Shepherd Youth and Family Service was established in 1976 out of a number of works of the Sisters including residential care, an orphanage, emergency housing for families and a micro credit scheme known as the No Interest Loans Scheme.

Research projects identifying areas of social need led to the establishment of centres in Hastings on the Mornington Peninsula, in the western region at St.Albans, St. Kilda and the Central Office in inner urban Collingwood.

MISSION

Good Shepherd Youth and Family Service works side by side to support and advocate for people who are disadvantaged or oppressed in any way.

Good Shepherd provides a range of services from family counselling to supported accommodation for the homeless: from "no interest' loans, teenage foster care and financial counselling to emergency housing and refuges for victims of domestic violence.

Good Shepherd believes that everyone, regardless of age, sex, culture or religion, has the right to adequate income and shelter, opportunities for education and employment, quality health care and nutrition, and that everyone should be treated with dignity and respect.

A desire for social justice and a deep and genuine concern for people is characteristic of our work.

CAPACITY TO RESPOND

Good Shepherd Youth and Family Service is responding to the Human Rights and Equal Opportunity Commission National Inquiry into Children in Immigration Detention out of direct experience with young people passing through its services who are or who have been refugee and humanitarian entrants to Australia. In addition we are able to draw on the professional experience and knowledge of a number of staff who work directly with young people who have experienced loss, grief, family separation, dislocation and trauma more generally.

TERMS OF REFERENCE

The Good Shepherd submission will address the following terms of reference

  • The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention.
  • The adequacy and effectiveness of the policies. Agreements, laws rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention with particular reference to:

    The conditions under which children are detained: and

    Guardianship issues.
  • The impact of detention on the well-being and healthy development of children, including their long-term development.
  • The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.
  • The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention.

The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention

The Convention on the Rights of the Child (1989) requires that

"No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time". [3]

While the detention of unaccompanied children might well be consistent with Australian law, Good Shepherd believes that it can only be justified for the purposes of health screening and perhaps initiation of procedures which might establish identity. There is no reason why detention beyond a few days is required.

In the case of children accompanying their parents or guardians a question arises over the relative benefits of detention with their family or community release without. The principle however should remain that children should not be deprived of their liberty arbitrarily and only as a measure of last resort and for the shortest appropriate period of time- for this reason Good Shepherd would advocate the release of all families with children within a set time frame of say 28 days which should be sufficient to cover the most basic of investigations and checks.

Detained families with children should be separated from other adults. Article 37 (c). of the Convention states that

"Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account he needs of persons of their age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances."

Separation from other adults would minimise the impact of destructive and self harming behaviour on children while they and their families are detained.

The impact of detention on the well-being and healthy development of children, including their long-term development.

Enormous harm is being perpetrated upon the children in Australian Immigration Detention Centres and this will have serious developmental consequences as these children grow-up. Critical to a young person's well-being and healthy development is a connectedness to their family (parents, siblings, extended family), and to their local community and its members. Connectedness to the wider community through school is the next most important factor where the young person can establish vital peer relationships with other students and mentor relationships with teachers and other adult mentors. Research reveals that a sense of place also plays an important part in the healthy development of a young person's identity. A massive body of research on Resilience in young people (for example, see Andrew Fuller, LaTrobe University, Melbourne and Robert Brooks, Harvard University, U.S.A.) points to the fact that a broad community involvement greatly assists the well-being and healthy development of young people. Activities such as sport, outdoor leisure pursuits, cultural and social events, are crucial to a young person's physical, social, intellectual, emotional and spiritual development. This environment allows for the meeting of their basic emotional needs such as love and belonging, self-acceptance, freedom and fun.

It is our understanding that immigration detention of children allows for very few of these fundamental experiences to occur in a young person's life, and these are therefore, sowing the seeds for untold emotional/psychological damage to occur now and in the future. We therefore state our strongest opposition to the immigration detention of children (and their parents/guardians).

Agreements, laws rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention.

The conditions under which children are detained

It is our contention that the Australian Government is violating three United Nations Human Rights Conventions in regards to children:

The Convention on the Rights of the Child -for failing to abide by the best interests of the child and for detaining them not as a measure of last resort but immediately on arrival

The International Conventions on Civil and political rights- for arbitrarily detaining children; and

The Convention Relating to the Status of Refugees- for punishing with extended detention following the illegal nature of arrival. Note that we make a distinction between the illegal nature of arrival and the commonplace definitions used by the media and encouraged by Government to describe asylum seekers as "illegals'.

Guardianship issues

Under the Immigration (Guardianship of Children )Act 1946 the Minister is required to exercise the same duties and obligations as a natural guardian of a child.

"The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child 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, or until the provisions of this act case to apply to and in relation to the child, whichever first happens." (S6) [4]

It is our opinion that the guardian of the child should stand in "loco parentis' and therefore should have responsibility for "the long and short term care, welfare and development of the child ". (Family Law Act Section 60B) [5]

While conformity to International Conventions and Standards and to the Department of Immigrations own Detention Standards is necessary and appropriate, it appears to Good Shepherd that detention of children whether accompanied or unaccompanied by parents or guardians imposes special obligations on the Minister for Immigration. We believe that not only is there an obligation to minimize or avoid harm of the children detained but that there is a further positive obligation to maximise the care, welfare and development of the child or young person.

The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.

The use of a private for profit provider in the management of detention centres is a barrier to appropriate scrutiny of operations. Experience with adult corrections does not assist in understanding the special obligations that are in place when children are detained. Good Shepherd is aware of the DIMA guidelines in relation to the Detention Centres and are supportive of the good work which has been undertaken by the Independent Committee appointed by the Minister .

We are also aware of the additional scrutiny provided by others with inspectorial roles such as the West Australian Inspector of Custodial Services. We believe that neither of these satisfy the concerns in the community at large about what is happening in detention centres. Good Shepherd believes consideration should be given to the establishment of a Community Visitor Scheme such as established in Victoria for the visiting of Mental Health, Disability and Community Residential facilities under the Guardian and Administration Act. This visiting scheme draws on community members with broad life experience and some training and allows them entry to facilities with a brief to report on the care and provisions for those detained. They are seen as entirely independent, representative of the community and their reports are tabled in Parliament. It would be entirely possible to establish a scheme at the Commonwealth level with particular reference to the Children in Detention.

A further protection could be the establishment of an Australian Childrens' Commissioner with the capacity to represent the interests of all children in Australia , not just those with the status of citizenship.

The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention.

Unaccompanied children and young people

Access to health, education and support services is vitally important to young people coming to Australia. Munira's story below is the story of a young woman who has overcome tremendous odds to eventually become a citizen of Australia who contributes to the well-being of our community.

" My name is Munira Mohamed and I work at the Good Shepherd Youth and Family Service located in Collingwood, as a housing support worker. The following is a brief account of my story as a minor unaccompanied refugee in the eighties, having being displaced in a number of countries, before eventually finding my feet in Australia. What this brief highlights is how a potentially tragic and unfortunate situation for a child has turned into a success story with a little bit of support, compassion, tolerance, acceptance and humanity on the part of the Australian community.

My family escaped Ethiopia by foot in late 1978 due to the harsh military regime and civil war that followed. My father was harassed and imprisoned a number of times on bogus allegations before he decided to flee Ethiopia. My family lived in a city and my father had a Jewellery business and employed several young people in his business. The government prohibited leaving the country and branded people as traitors if they attempted to leave. Anyone who planned to leave the country at that time had to risk being imprisoned, tortured and even killed.

My father decided to sacrifice everything by leaving his home, business and other material possessions and fleeing the country to maintain his social, political and religious freedom and to escape persecution. Though we were young and there were four of us, my father decided not to leave his young family behind and face any risks that came along the journey together with the family.

In the dark of the night, in late 1978 the family was bundled into a Jeep and driven to a small country town at the border with Djibouti in the Horn of Africa. Once we arrived there, we were met by a small group of Somali nomads who guided our way to Djibouti. I was 8 years old and the oldest child in my family. My younger three siblings were, my sister who was 6 and my brothers who were 5 and 4 when we fled Ethiopia, riding on camels' back, while my parents walked for 2 weeks to get to Djibouti.

On arrival in a small town in Djibouti, we went to the Djiboutian authorities and informed them that we were asylum seekers, who escaped political persecution in Ethiopia. We were sent to a refugee camp where we stayed for 1 month while our application for refugee status was being processed. My family then moved to the capital city which is also called Djibouti, started a new business on an interim basis and hoped things would get better in Ethiopia one day, so that we could return to our home country.

While the family was able to gain housing, work and start a new life in Djibouti, the children were unable to go to school as there were limited places in the one formal school Djibouti offered its citizens. Hence, I stayed at home and had a tutor that came once in a while to teach me the basics in literacy and numeracy. My siblings and myself had little contact with the outside world, as my parents were protective of us and did not allow us to go outside and play with other children.

This is where my story starts. One year after arrival in Djibouti, my mother sent me to the market with a friend of hers to buy rice. On the way back from the market I saw a group of young people gathering around a building. My mother's friend and I decided to go over the building and have a look at what was going on. We found out that it was the United Nation officers interviewing young people, mostly young adults who were Refugees in a bid to send them to Egypt on an interim basis to get an education while waiting for the political climate in Ethiopia to settle down.

Suddenly, a UN officer came over and asked if I was able to write and read in Arabic. I nodded yes. The officer then provided me with a pen and paper and asked me to write on it, which I did. That is all the interaction I remember having with the officer. About a month later, my mother received news that my name was on the UN list as having been selected to go to school in Egypt. My mother's reaction was that of shock and fear. Subsequently she asked the bearer of the news to keep it confidential. My mother felt that my father would not allow me to go abroad, given that I was a female and so young in age, as well as due to the lack of community links in Egypt. My family knew no one in Egypt and there was no information available about where and how I would live in Egypt, apart from the promise that I'd go to school.

Consequently, the news was kept hidden from my father until just days before the advertised departure date. Some friends of my father however, eventually decided to approach and persuade him to allow me to go to Egypt for the sake of getting an education. What that meant in practical terms though, was that I had just about 3 days to organise a passport and for psychosocial and practical preparation time, such as packing and saying my goodbyes. I found myself going through a climate of panic as my trip was being organised to suddenly finding myself at the airport on the night of my departure. Like a lamb to slaughter I went through the airport with no emotions, as the reality of what was going to happen did not hit at that point, while my mother searched for any Ethiopian travelling to Egypt to ask them to keep in touch with her daughter in the hope that they would somehow be able to oversee my well being.

On arrival in Cairo, I emerged with 3 other Ethiopian refugee children who were all boys. A UN officer was waiting to take us to some accommodation. We were given no information about where we would be taken or what arrangement has been made for us. After about half day of being driven around from one hotel to another that refused to take 4 kids under the age of 10 unaccompanied, I started to panic and began to cry and beg to be taken home to my mother. The UN officer was at his wits end as it started to get dark and he had 4 tired and distressed children that he could hardly communicate with, in the car. Eventually, he was able to strike a deal with one hotel manager to accommodate us for one night on the promise that he would collect us early the next morning. As arranged he came and took us to the UN office in Cairo the next morning, where they were able to get an Ethiopian woman who agreed to act as a guardian for myself and one of the boys who came to Egypt with me.

I lived in Egypt for 8 years in various bizarre housing arrangements, including becoming a guardian myself at the age of 15 and finding myself in a flat with 4 of my younger siblings, who in 1985 were also sent to Egypt to get an education. My Siblings ranged in age from 5 to 13 years. When the responsibility of taking care of my siblings took it's toll on my physical and emotional well being and lead to leaving school, I decided to apply for resettlement in Australia through a relationship I had with a young man who was also an Ethiopian refugee who was studying in Egypt. I decided to include my sister, who follows me in age in my application, as I was concerned that she would be assigned to look after the younger siblings at the age of 13 in my absence.

My sister and I arrived in Australia in 1987, in the company of this young man on the basis of my relationship with him. A year after arrival in Melbourne I left that relationship as I became ambitious about my future and wanted to take advantage of the opportunities that were available to me in terms of getting an education, personal development and breaking out from the prescribed traditional role of women within my culture.

Coming to Australia, within a relatively welcoming and tolerant social and political environment has helped me to overcome the many hurdles and difficulties I faced as an unaccompanied refugee child displaced in many places. Moreover, having been given the kind of opportunities in terms of access to education, health and community support services available to all Australian children, I believe made me determined to make something out of life and give something back to the Australian community that supported me in my effort to once again became a citizen of a country, free from persecution, harassment and displacement.

Generally where a young person is unaccompanied, the Minister for Immigration delegates guardian responsibility to State Departments of Community Services. The capacity of States Departments to provide an active guardianship which fosters in a positive way the relational social health and educational development of young people is extremely limited. Much of the operational approach of States Departments is coloured by child protection legislation which aims at minimizing the footprint of State Intervention in the lives of young people because at its base is a presumption that there is a family which has the interests of the young person at centre although they may not be able to give effect to this interest.

A wholistic approach to the total well being of the young person is difficult to achieve in an operational context of minimal intervention. While organizations such as the Red Cross do have a wholistic approach their response is circumscribed by the parameters of the Asylum Seeker Assistance Scheme itself. The scheme potentially could be expanded to provide a wider range of supports to unaccompanied and accompanied young people and their families but Good Shepherd advocates an examination of the option of the appointment of Guardians from the community for unaccompanied young people in addition to the services and assistance to which they may be entitled. It is understood that this would require the relinquishment by both the Minister of Immigration and the Department of Human Services of guardianship responsibilities; the difficulties of this are not underestimated given the almost total powers of the Minister for Immigration around relinquishment and resumption of guardianship.

Good Shepherd notes with concern the treatment of some young people who are released into the community on almost the same basis as adults with the presumption that they require minimal support and that they will connect with their own community supports. The rationale behind this is that they have been living extremely independently prior to entry to Australia. It appears to us that the time on release is a time when intervention and support has most impact and can ensure the most productive settlement of the young person. For this reason they should not be exempt from the support mechanisms in place for other children.

Accompanied young people

The additional measures required to protect the human rights and best interests of child asylum seekers accompanied by parents or guardians would be met if those adult asylum seekers were entitled to full financial and social support upon release. The restricted entitlements associated with temporary protection visas have a very severe impact on children in these families and this is compounded by a lack of knowledge of alternative supports. Where families do make contact with services such as those provided by Good Shepherd they are responded to with the limited material and financial aid we have available to us.

CONTRIBUTORS TO THE GOOD SHEPHERD YOUTH AND FAMILY SERVICE SUBMISSION

  • Helen Hoffman
  • Margaret Dorizzi
  • Jamie Edwards
  • Robert Williams
  • Lynne Chapman
  • Annette Leverett
  • Renee Huish
  • Trinity Henwood
  • Daniela Zimmermann
  • Linda Dicker
  • Marg Valentine
  • Christine Carter
  • Livia La Rocca
  • Louise Schlitz
  • Julie Leech
  • Michael Yore
  • Karolee Wade
  • Amber Richardson
  • Christine Soderiou
  • Jill Wain
  • Louise Dowling
  • RGS Kirsten Bickendorf
  • Carmel Stafford
  • Eva Barton
  • Carmen Dimech
  • Mike Williams
  • Jemma Mead
  • Patricia Aron
  • David Shannon
  • Violet Spasevski
  • Tina Kozmak
  • Helen Smallwood
  • Munira Mohamed
  • Barry Pullen
  • Marilyn Webster
  • And members of staff at Good Shepherd St. Albans and St. Kilda

ENDNOTES

1. Refugees: A Challenge to Solidarity.

2. Catholic Commission for Justice Development and Peace. (2000) "Hordes or Human Beings- A discussion of the problems surrounding Australia's Response to Asylum Seekers and Possible Solutions to those Problems."

3. Convention on the Rights of the Child: Text as adopted by the General assembly of the United Nations. (1989)

4. Immigration (Guardianship of Children) Act 1946

5. Family Law Act (1975)

Last Updated 30 June 2003.