Transcript of Hearing - PERTH
Monday 10 June 2002
Please note: This is an edited transcript
Commissioners:
DR S. OZDOWSKI, CommissionerDR T. THOMAS, Assistant Commissioner
MRS R. SULLIVAN, Assistant Commissioner
Counsel Assisting Commission
MS V. LESNIE
COMMISSIONER OZDOWSKI: Welcome to every one, I think we will start rolling and I would like to formally open this public hearing which is one of series of hearings conducted around Australia. My name is Sev Ozdowski and I am the Human Rights Commissioner and with me are my two Assistant Commissioners. To my right is Dr Trang Thomas, Professor of Psychology at the Royal Melbourne Institute of Technology. And to my left is Dr Robin Sullivan who is Queensland's Children's Commissioner. At the end of the table on the left is Vanessa Lesnie who is the counsel assisting the Inquiry.
Before we commence hearings, I would like to note the following matters. First I would like to draw your attention to confidentiality and privacy issues. I have given a number of directions to protect the privacy, security of employment and human rights of people assisting or otherwise involved in the subject of this Inquiry. The identity of asylum seekers giving evidence, producing information or documents or making submissions to this Inquiry, is not to be disclosed. The identity of all other persons giving evidence, producing information or documents and making submissions to the Inquiry who request anonymity is not to be disclosed and the evidence or information produced to the Inquiry is not to be published in any way that identifies or could identify an individual.
The Commission believes it is important to respect the privacy of individuals and to protect children in particular. Even where individual cases have been made public, individuals should not be named in this hearing. Secondly, a number of comments have been made in the submissions into the Inquiry about individuals who have worked at detention centres. These people should not be named because they do not have opportunity to defend themselves against allegations made.
I would like also to ask media to adhere to the following where a witness requests not to be identified by name or photograph, please respect that request and when filming. Please also respect the wishes of those who may not want to be included in any background shots.
The purpose of the hearings of the Inquiry is to test the quality of evidence submitted to us. If you feel that you misunderstood our questions or didn't hear them, please ask for clarification. Because of time limits, we may choose to address some questions in writing to you, so I would like to ask your cooperation in responding to our questions.
Now, I would like to welcome our first witness, Ms Marry-Anne Kenny. Could you please come forward and take a place at the witness stand.
MARY-ANNE KENNY, affirmed [9.05am]
COMMISSIONER OZDOWSKI: Thank you very much. Now, I would like to ask you to make an opening statement. In particular, I would like to ask you to state in this opening statement your expertise. Please remember, we are interested in facts. This Inquiry is to test the merits of fact. We are, as an Inquiry, trying to also find out whether Australia is meeting its international obligation with relation to children. In particular we are interested in conditions of detention and also, we are interested in impact of detention of children. So, if I could ask you to open with a statement?
MS KENNY: Okay. Well, I am a solicitor with Community Legal Centre, SCALES, which is the Southern Communities Advocacy Legal and Education Service. I am also a senior lecturer in law at Murdoch University and in my position at Murdoch, I work at SCALES which is a clinical course for final year law students. My particular interest in appearing before this Inquiry is to reflect upon experiences that SCALES has in providing immigration advice and assistance to asylum seekers.
We have been working with asylum seekers for the last, I think, 3 or 4 years and much of that work has been in working with people who have been in detention or are currently in detention or post detention. We have had a contract to assist with people in detention at the Perth Detention Centre which obviously doesn't hold children but we have come into contact with children in remote centres such as Curtin and Port Hedland, occasionally as well.
We also work with Temporary Protection Visa holders who are in the community. In particular, just recently we have been asked by the Department of Community Development in WA to provide legal advice and assistance to unaccompanied minors with their applications for permanent protection whilst they are on their Temporary Protection Visas. So, that is a very broad outline of the work that we do.
The submission that we decided to put in was to focus on the work or basically, the legal representation of children and young people because we felt you would probably be receiving a lot of evidence on issues around psychological issues, education and so on from people who had more expertise than us and we thought it would be good to reflect upon issues regarding legal representation and the participation of children in legal process because from the contact that we have had with young people and children, it seems that there don't appear to be guidelines that are used by the Department of Immigration themselves. Nor legal representatives that have regard to the particular issues and barriers that children face let alone barriers that children who are seeking asylum face.
So, that was really the focus of our submission in terms of legal representation and legal capacities. I did not want to say too much more but perhaps if there are particular issues that you wanted me to - I know that you have got quite a packed agenda so I am quite happy to address what ever issues arose out of our submission that you would like to ask me about.
COMMISSIONER OZDOWSKI: Yes, thank you very much and can I congratulate you and people also seated with you from the Southern Communities Advocacy Legal and Education Service, SCALES, on the submission. It was certainly a very substantial submission, well thought through and was a pleasure to read it. But now, let us go to the issues the submission raises. I would like to speak with you to start with about the issue of guardianship. On page 20, you said that as regards unaccompanied minors, the roles and responsibilities between the State and Commonwealth are not clear; there is confusion. Could you perhaps explain what you mean by this?
MS KENNY: Well, when unaccompanied minors arrive here, they are covered by the Immigration Guardianship of Children Act, the Commonwealth Act when they arrive and looking at the historical foundations of that particular Act, it appeared that it was really to deal with the post World War II migration of children where we were actively seeking to bring young people and children to the country. So, the frame work of the particular Act doesn't seem to have been amended or adapted to the current situation.
So, it appears that under the Act that the Minister is obviously the guardian when they first arrive and considering that the Department of Immigration is also deciding their immigration status, it appears to be quite a conflict.
COMMISSIONER OZDOWSKI: How long does the Minister remain a guardian?
MS KENNY: Yes, well that is not clear. That does not seem to be clear to me. From practice, from talking to people, the State authorities who work with unaccompanied minors, they appear to see their role as beginning once the children are released from detention. And certainly, my understanding from the evidence given or the submissions made to the recent Full Federal Court case, which I refer to here, Odhiambo, and I think you are going to hear from Marg le Sueur after me, who was involved with that case so you perhaps would ask her some more questions about that.
COMMISSIONER OZDOWSKI: And what is the legal situation, okay, the child arrives here and assuming the child is unaccompanied, the Minister is the guardian from the moment the child arrives?
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Now, the child is put into detention and let us assume that there is some allegation of abuse of that child, what happens then?
MS KENNY: Well that appears then to be an issue that the State welfare authorities should be involved with and certainly from statements they have made, they see that as their prerogative but the difficulty is, or my understanding from talking to the State authorities, and again you can put this to them. I understand you are speaking to them later today but they are not actually notified when children arrive and are in detention.
COMMISSIONER OZDOWSKI: So they don't know?
MS KENNY: So, they don't actually know that they are even there until the Department of Immigration informs them that they are there and as to when or what circumstances they inform them does not seem to be very clear. Whether you have to wait for an allegation of abuse or whether some other agency informs them of their existence is not clear.
COMMISSIONER OZDOWSKI: So you are not aware of any standard procedure of DIMIA informing State authorities about the arrival of unaccompanied children?
MS KENNY: Well, there is an agreement and that was referred to in the case of Jafari v Minister for Immigration where there is a Memorandum of Agreement so if there are issues about child detention then there is a responsibility to inform the Department of Immigration. Or, the Department of Immigration has a responsibility to inform the State Department. So, there is a Memorandum of Agreement but as to when that actually occurs is not very clear. And that was commented on, in fact, by the judge of that particular case.
COMMISSIONER OZDOWSKI: Do you have any recommendations how it could be handled better?
MS KENNY: Well, I think there should be a clarification between the two departments as to the arrangements for children. So, there should be a clearer arrangement in respect of the State and Commonwealth authorities but I think also, it should certainly be the case that somebody else apart from the Minister for Immigration should be the appointed guardian. There should be some arrangement set up, whether that is a Commonwealth body or a State body, it can be worked out.
COMMISSIONER OZDOWSKI: Why is the Minister not a proper guardian?
MS KENNY: Well, I think that having the Minister for Immigration as their guardian also the person that decides, is the ultimate arbiter of their case in terms of their application for asylum, can represent a conflict of interest, particularly to the Government's policy and certainly, the Minister has stated, intention to keep people or to use detention, to use mandatory detention models and to continue using them. And so he has those conflicting issues about what is the Government policy as opposed to acting in the best interests of the children involved.
COMMISSIONER OZDOWSKI: So, what you are saying is that he may have a conflict of interest here?
MS KENNY: Yes. Certainly too, one thing that occurred to me on reading through the Immigration and Guardianship of Children Act, is that it refers to children who arrive in Australia which also raises an interesting issue because that Act has not been amended to exclude, well, the whole raft of islands, I suppose, now that may be excluded from the migration zone. So it appears that, I understand, there are quite a number of unaccompanied children in Christmas Island and so we are still, strictly speaking, fall within the guardianship of the Minister and yet they are not allowed to have access to the legal procedures had they been able to come to mainland Australia. So, they are not given legal representation, for example, they are given a different type of determination in their case and how you could argue that that is in their best interest would again seem to be a conflict of interest.
COMMISSIONER OZDOWSKI: Ms Kenny, do you have a view who is the guardian of children at Manus or Nauru?
MS KENNY: Again, that is not clear. They did come within the Australian territorial - those particular children did come within the Australian territories so I would think at that time they did come within the territorial jurisdiction of Australia so the Minister would have been their guardian at that time. Now they have been removed from here, again that is difficult to say. They may well no longer be within the Minister's jurisdiction but the fact that he ordered their removal or participated in their removal, again, may mean that they have some form of legal redress, perhaps, against him in terms of a breach of fiduciary duty.
COMMISSIONER OZDOWSKI: Yes, but you are not certain whether the Minister is a guardian of unaccompanied children in Nauru and Manus?
MS KENNY: No. That is not very clear.
COMMISSIONER OZDOWSKI: So there could be a situation that they are with no guardian there?
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Do you want to make any additional comment about children who, in fact, come with their families or a family member in terms of the comments you made about unaccompanied minors?
MS KENNY: Yes. In terms of children that come with their family, I think one issue for me dealing with a particular case of two children that were up in the Curtin Detention Centre who did come with their family, there were amendments made to the Migration Act to say that if children are included on their parents' application, that primary application, and that primary application does not succeed, then they are excluded from making further application themselves. With these particular children that I was dealing with, they had their own claims, quite clear claims for protection themselves and were able to lodge them because it was prior to an amendment being made to the Migration Act which would exclude them, but it concerns me that if a legal representative is appointed to assist a family that arrives, that it is often the case that the children are not spoken to.
Their views about the application process are not sought and their particular claims may not be put forward because it is seen by the representative that the best thing to do is to speak to the parents involved and not necessarily speak to the children. Which, depending on the age of the children sort of flies in the face of making sure that they are included and understand the legal process. So, it is of concern that they can often be excluded from that whole process. They may not even be spoken to by the Department of Immigration who may think it is really the responsibility of the parents to pass on the information to the children but it should be the case that somebody is appointed to assess whether or not those particular children would like to lodge their own claims.
ASSISTANT COMMISSIONER SULLIVAN: There are children who are under the guardianship of the State in other circumstances?
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Do they get additional rights or privileges that these children don't get by being under the guardianship of the State?
MS KENNY: And of the Commonwealth?
ASSISTANT COMMISSIONER SULLIVAN: And the Commonwealth, yes.
MS KENNY: I am not sure about that. Yes, you would have to ask the State representatives but, I mean, as far as I can see, in terms of the State arrangement at least the children that are involved do have a case officer that is assigned to them who is responsible for looking after their best interest to ensure that they are covered in terms of any medical needs, housing needs, education needs. So, they are there to oversee those sorts of things where as there does not appear to be, again, with the Commonwealth, anybody who is appointed individually to look after that range of needs for children in detention.
ASSISTANT COMMISSIONER SULLIVAN: Thanks. And my final question relates to something in your submission about medical opinions for release?
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: And your concern about that. Would you like to talk about that?
MS KENNY: Yes, I would. Obviously I would expect most people are talking to you about bridging visas for children or people under the age of 18. There is also an ability to get a bridging visa if you have a medical need that can't be cared for in detention. The way the regulation is currently phrased, it requires that the assessment of that medical need be done by a doctor appointed by immigration. So, if I were to get a doctor, as legal representative have arranged for an expert to provide a report on a client to say that they have a medical need that can't be cared for in detention, that would not satisfy the requirement of the regulation.
And in fact, that has happened to me on a couple of occasions so, in those circumstances, the Department of Immigration have refused the bridging visa on the basis that it was not a report that was arranged by Immigration. And I have tried to appeal that and it has not been successful because that is the way the regulation is worded. And so, it very much depends on the good will of the Department of Immigration to organise that medical report. And I am not saying they won't, they will. If you talk to them about it they generally will organise that medical report but it does lead to a sort of a one sided process. Also, at the end of the day, the actual assessment of who - my understanding from the Department of Immigration as to who - the person that determines whether or not a person will get a bridging visa, is the manager of the centre.
Again, I think, it should be somebody within the Department that is separate from the centre because if you are coming up with a claim to say that this person has a medical need that can't be cared for in detention, then it is not something that is unrelated to detention, it is something that perhaps they may have a psychiatric condition or a depression that has been induced by the detention experience. A centre manager may be reluctant to admit that their centre may have
COMMISSIONER OZDOWSKI: That his centre produced this result. Yes.
MS KENNY: Yes, yes. So, I think that those assessments should definitely be done by, as to whether a person would qualify for that visa, somebody outside the actual centre itself. I also think that there should be access. If you are able to get a specialist that has the appropriate qualifications and it is their opinion that the person has a medical need that can't be cared for in detention, then they should accept that as evidence.
ASSISTANT COMMISSIONER SULLIVAN: Is it a possible scenario that the centre manager would be the delegated guardian of an unaccompanied minor and therefore the person who should be requesting the medical opinion for the bridging visa release, and the person who will be deciding on whether the bridging visa will be granted? So is it possible that one person, the person in control of the centre will have the role of guardianship, and therefore the role of ensuring the best interests of the child, which may require release on medical reasons? He would be the same person who would request the medical opinion from the DIMIA person, and the same person who would actually decide whether the visa was granted.
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Is it possible that one person could play all of those three roles?
MS KENNY: It is possible that that could happen. With the release from detention on medical grounds that can be at any age, it is not necessarily for people under the age of 18.
ASSISTANT COMMISSIONER SULLIVAN: I see. Okay.
MS KENNY: It is any age. I am just putting it forward, is that is another possible ground on which a young person or a child could be released from detention, let alone the one that is more specific to them in terms of their best interests. Again, some of the centre managers have been very helpful and have identified that a person does need to be released from detention on medical grounds and have been the people to organise the medical assessment and grant the bridging visa at the end of the day. And that does occur and so they do have the best interests of the people in detention at heart.
But my point is, it shouldn't just be restricted to that particular person. If another person there, a representative or somebody else can identify that a person has a medical need then, if that is assessed by an appropriate person, and the Department can get their own assessment if they wish to test that assessment, but it shouldn't just be restricted to something that the Department of Immigration organises.
COMMISSIONER OZDOWSKI: How easy is it to get appointed by the Department of Immigration, a specialist or as a doctor who can issue this assessment?
MS KENNY: That's a good question. The particular most recent case I dealt with was somebody who was brought down to the Royal Perth Hospital, so it took some months. It took about three months from me flagging the idea of a bridging visa. I organised a medical opinion and it wasn't accepted. Well it wasn't accepted as falling within the requirements for the bridging visa and they had to organise another medical opinion.
COMMISSIONER OZDOWSKI: So, if I understand correctly, the person was a psychiatric patient in the hospital for three months before you managed to put the first application which was unsuccessful.
MS KENNY: No, he was there in October. I put in an application around about November and the Department couldn't organise somebody to do a separate opinion until around about the end of January. So it was around about four months in total.
COMMISSIONER OZDOWSKI: Thank you.
ASSISTANT COMMISSIONER THOMAS: You expressed some concern of some unaccompanied minors may not have a lawyer during the process, the DIMIA screening of their applications?
MS KENNY: Yes.
ASSISTANT COMMISSIONER THOMAS: Do you know any cases that they are disadvantaged because of that? Clearly unfairly screened out?
MS KENNY: For unaccompanied minors, I don't have any particular examples for unaccompanied minors, no. But I have had adults who have been screened out through that process, yes. But not unaccompanied minors.
ASSISTANT COMMISSIONER SULLIVAN: Do unaccompanied minors have guardianship in that screening process? Sorry, does the Minister act as a child's guardian in the screening process?
MS KENNY: It doesn't appear that there is any independent person to me, that is appointed at that stage, to advise them on what that process is about or to assist them through that process.
ASSISTANT COMMISSIONER SULLIVAN: So there is no one who could ask for a lawyer on their behalf, for instance, in that process?
MS KENNY: I don't think so. Again, I haven't had any direct experience of any unaccompanied child that has been screened out through that process. I don't know of any direct examples. But just by analogy of dealing with adults who have been screened out through that process, and knowing that it does happen that if they don't, or for whatever reason, raise the protection obligations of Australia then they can be screened out. And also of concern is given the barriers that I've outlined in our submission that unaccompanied children face when they arrive here, that it may be difficult for them to sit down with a person and understand what that process is about, and use the sort of magical words to get them through and screened in.
ASSISTANT COMMISSIONER THOMAS: Yes.
COMMISSIONER OZDOWSKI: Perhaps one wish I would like to raise with you, it is a question of bridging visa E, subclass O51, and basically it is saying that a child could be released from detention when it is in the best interests of the child and that state welfare authorities needs to certify this. I think a few days ago Minister Ruddock went on public record saying that whenever he received an advice from state authority that the best interests of the child to release the child from custody, the Department acted immediately and children were released. Could you say what your experience is in this area?
MS KENNY: Well certainly if he receives the advice that it is in the best interests of the child to be released, then it would seem, under the regulation, he has to or must release them, as long as he is satisfied there are adequate arrangements in the community. But the difficulty is in the assessment of whether or not it is in the best interests of a child. For example, the same two children I was referring to in the example before that were in Curtin, had arrived with their parents and an uncle and the uncle was released. He was given a TPV and released into the community. These two children were quite distressed and in fact were on a hunger strike and had lost a substantial amount of weight.
The State Welfare authorities were contacted and I would say not by the Department of Immigration, it was by a church organisation, and an assessment was made. Now they had an uncle that was actually in the community that they were quite close to, had spent quite a great deal of their life with in their country of origin, but it was assessed that it was still in their best interests to remain with their parents in detention. So, not to remain in detention, but basically it was in their best interests to remain with their parents. And because their parents did not qualify for a bridging visa themselves, then they were not able to be released.
So that is the problem. I mean it may well be assessments are made, but it is getting that actual assessment that it is in their best interests. So, with children who arrive with their families that is going to be a difficult balancing act for the state Department to do. However, with unaccompanied minors there should be no reason why they are not released in to the community. I know that some have been but in the past. In dealing with some of the unaccompanied minors I am dealing with now, some of them were in detention for eight to nine months and not released until they were granted their TPVs.
COMMISSIONER OZDOWSKI: Usually the link is because the Minister would say, well there are two categories. One is unaccompanied and the situation is relatively simpler. But then you have got children with families and usually the Department would say that it is in the best interests of a child to stay in detention with parents, rather than to be released into the community.
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: What is your view on it?
MS KENNY: Well my view is it shouldn't be and either or, it should be that there should be some provision for release of families and parents as well as their children. So if a family does come and it is in the best interests of the child to be released into the community, then they should be released with their parents. So there should be some provision for some sort of alternate detention model. There are some trials of that obviously going in Woomera, which I expect you have heard about, with unique success. But some sort of arrangement whereby parents can be released in some sort of alternative arrangement, similar to suggestions that have been put up by HREOC under alternate detention models.
For example, a bail process. Similar to a bail process or a report in process, or some sort of supported accommodation would be more acceptable.
COMMISSIONER OZDOWSKI: The Department is concerned and the Minister is concerned, that people who are released on bail would abscond.
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Could you tell me something, from your legal practise, what is the likelihood of Australian criminals absconding?
MS KENNY: Well I used to practise in criminal law as well, so. I mean, sometimes there is risk of people absconding, but there is perhaps a better analogy to talk about people who arrive here lawfully and are in the community and not put into detention. So I have always thought it rather ironic that, for example, you can have people who manage to get a passport and a visa and come to the country lawfully and they are not detained. And sometimes their visa application process can go on for years through appeals and so on. And I've not had one client that has gone through that particular process, that has absconded. They have basically continued to report to the Department of Immigration and have remained present up until the time, sometimes succeeding, sometimes not succeeding. And then they depart.
COMMISSIONER OZDOWSKI: So your experience is that no one absconding, even if the outcome was negative.
MS KENNY: Yes. Nobody absconded, because in these sort of circumstances the stakes are very high. They don't want to return to their country of origin, so they will continue to remain engaged in the process all the way through, with the hope that they will be allowed to remain here. So all the clients I have had are highly compliant with any conditions that are placed on bridging visas. It also seems to me to be quite arbitrary the way that we determine that somebody has come here unlawfully. So, for example, many of the clients that I have that come from Burma managed to get passports and to get exit visas by bribing people within their country of origin to obtain what is, at the end of the day, a lawful passport and a lawful visa. But at the same time they have put forward a great deal of money to get that particular passport and that visa, and then arrive here on lawful documents.
Also whereas on the other hand you will have people, say from Afghanistan who just cannot, there is just no way they are going to be able to get a lawful visa and they will pay somebody, in order to come here. They will still have identifying documents and yet those people are detained and the person who managed to bribe, in their country of origin, to get the lawful documents is not detained. So it seems to me, if you are able to find out, if you are able to determine issues in terms of identity and security then there doesn't seem to be a reason for holding someone in detention for extended periods of time.
COMMISSIONER OZDOWSKI: Ms Kenny, you used the word "unlawfully" and there is much confusion here in the mind of the Australian public about people coming to Australia in boats.
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Can I ask you for your legal view. Is a person coming to Australia by boat and on arrival seeking asylum protection, breaking any Australian laws?
MS KENNY: No, I didn't. Yes. I shouldn't have used the word "unlawfully", I should have used the word unauthorised. No, they are not breaking any Australian laws because in international law you have a right to seek asylum and we have signed the relevant conventions for that. So they are not breaking any Australian laws by arriving and then seeking asylum in our country. Even if it is in an unauthorised manner.
COMMISSIONER OZDOWSKI: Thank you very much.
MS KENNY: Thanks.
COMMISSIONER OZDOWSKI: Do you have anything to ask?
ASSISTANT COMMISSIONER SULLIVAN: Nothing.
COMMISSIONER OZDOWSKI: They are all the questions we have for you Ms Kenny. Thank you very much for your submission. Any concluding statement?
MS KENNY: No, just apart from the recommendations that I have in the submissions that I have made. I guess one of the strongest issues that I hope that comes out of this particular inquiry, is that there be some recommendation or some guidelines that are perhaps proposed to the Department of Immigration in the way that they actually assess an application that is put forward by children, or unaccompanied minors, or children that arrive with families. I think that that is an area that is unfortunately really lacking at the moment in Australia.
There are some very good guidelines that are available from overseas and internationally about how assessments should be made of applications from children, and how interviews in particular should be carried out with children, which I would hope that the Department of Immigration would pick up here. To deal with not just children in detention, but also could extend to people who arrive here on valid visas as well. So I would hope that that is something that comes out of this inquiry as well.
COMMISSIONER OZDOWSKI: So what you are saying, possibly also that at the moment there is inadequate training for people who deal with children in these circumstances?
MS KENNY: I don't know what training is given to be honest. I don't know what training, if any, is given to people in the Department of Immigration but certainly, just from experience of being at some interviews with children, that some of the questioning doesn't seem to be appropriate toward dealing with the age and experience of the person that they are interviewing. And on searching for some sort of guidelines, I wasn't able to find any. I know that there are some guidelines in existence in relation to gender related persecution, but there is nothing that is specific to children.
Given our obligations, and the fact that we have signed the convention on the rights of the child, and all that that entails it should be the case that there are some quite detailed guidelines as to how children are interviewed. Not just how they are interviewed but also how their actual claims are assessed. We shouldn't be assessing their claims in exactly the same way we would assess an adult's claims. There are different factors that should be taken into account when assessing, for example, a well-founded fear of persecution. A young person or a child may not be able to articulate as clearly as an adult their fears of persecution and be as specific as often the Department of Immigration seem to want people to be, in terms of laying out their particular claims for persecution.
COMMISSIONER OZDOWSKI: In terms of the legal profession, did the Law Society produce any guidelines for lawyers, how to deal with children here in Western Australia?
MS KENNY: Children seeking asylum?
COMMISSIONER OZDOWSKI: Yes.
MS KENNY: I haven't seen any guidelines. I know that there are various guidelines from Victoria, I think, in terms of interviewing and representing children. But they are more generic toward representation of children.
COMMISSIONER OZDOWSKI: In Victoria it was produced by the Law Society of Victoria?
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Yes.
MS KENNY: As far as I am aware the Law Society in WA hasn't produced any guidelines here.
COMMISSIONER OZDOWSKI: Thank you.
MS KENNY: Thanks.
COMMISSIONER OZDOWSKI: Thank you.
THE WITNESS WITHDREW [9.42am]
COMMISSIONER OZDOWSKI: Now, could we ask our second witness Ms Marg le Sueur to come to the witness stand.
MARGARET Le SUEUR, affirmed [9.42am]
COMMISSIONER OZDOWSKI: Thank you. Could I ask you now to introduce yourself for the record stating your name, your address and the organisation you are representing?
MS le SUEUR: My address is [address removed] and my observations today do not come from me representing any particular organisation. I am involved in a number of different organisations but my observations today come from myself.
COMMISSIONER OZDOWSKI: Thank you very much. Now, could I ask you to make an opening statement in particular focusing on your expertise in the area and your experience in the area?
MS le SUEUR: I have prepared a little opening statement but I will preface it by saying that I am a solicitor and migration agent and I have been working as a migration agent since 1994 although I did have a little break, I think I was not registered for a year in '99, I can't remember exactly which year, but I had a little bit of a break. And I was living in Port Hedland for four years until January this year and in that capacity I had regular contact with the detention centre in Port Hedland and became a regular visitor there. I was on the resident's committee of the detention centre and so I came to know a number of the detainees including the unaccompanied minors.
COMMISSIONER OZDOWSKI: I understand you were also involved with a legal case Odhiambo and Martizi?
MS le SUEUR: That is right, yes, yes.
COMMISSIONER OZDOWSKI: Could we maybe start with that particular case. My understanding is that there were problems here with securing representation for these two young men. Could you tell us what has happened?
MS le SUEUR: Sure. How I became involved with the case might answer that question. I knew the two boys because of my involvement with the detention centre in Port Hedland and one day one of the boys rang me up and said "Oh Marg I'm coming to Perth next week" and he was saying like could I come and visit him in the detention centre" and I said "That is nice, why are you coming to Perth." And he said "I have got full Federal Court." And I said "Oh have you got a lawyer?" "No." And so they were unaware of what they needed that they did not even realise that they had to have a lawyer or they kind of knew that would have been nice but they did not have one so they were coming down to tell their story anyway.
So I thought that was so completely unacceptable that I drafted some documents and I did this "off my own bat" I have to say. I did not do it - you know I acted pro bono for these boys and so I just spent the weekend figuring out how to draft up documents. Drafted up the documents, went to the Federal Court to ask for an adjournment so that I could find the boys a lawyer. When I got to Court and I started to make my submission the three judges were very concerned that the boys had arrived in court without a guardian and asked where was their guardian. And I - you know, who did I get instructions from and then I said "from the boys". And that is when the whole issue of the guardianship of the boys arose. And then they became concerned that the boys hadn't - that no one had instructed a solicitor on their behalf, that they had been left to do it themselves.
COMMISSIONER OZDOWSKI: They were challenging the Minister of Immigration in the Court?
MS le SUEUR: Mm hm.
COMMISSIONER OZDOWSKI: And the Minister of Immigration is their guardian?
MS le SUEUR: Yes, that is right. Yes, and that is one of the issues that is certainly being raised in our case. We have not had a decision yet in that matter but one of the issues that we raised was that conflict between the Minister's role as the guardian of the children, and at the same time it was the Minister that was sitting there with - well, the Minister, not himself but you know, can I just tell you, the first day when I came to Court with the first boy, he - he is a 17 year old boy, he came to Court in handcuffs, he didn't walk into the Court in handcuffs but he was certainly brought to the Court in handcuffs. He had four guards with him and so - and he was there by himself with the four guards behind him and on the other side there were two solicitors from the Department of Immigration, a barrister and two DIMIA officials up against a 17 year old boy.
COMMISSIONER OZDOWSKI: I must say it is difficult for me to understand that because I have been living in this society for quite a while but to make an action in Federal Court, possibly there are some skills required. How does a boy manage to do it?
MS le SUEUR: He managed to do it because some of the detainees who have been in detention for a long time. I mean the detainees, you know, are not stupid you know and they have often not a lot to do. They read everybody's decision, they talk about everything. They become "bush lawyers" in a way. And so one of the other detainees who felt sorry for the boys helped them to draft up their application.
COMMISSIONER OZDOWSKI: How should the process, in your opinion, work in terms of securing legal representation for unaccompanied minors?
MS le SUEUR: How should it work? Let me think. I think that, in the first place, there should be particular regard given to the fact that they are young and that it is quite difficult to get instructions from young people and it can take quite a long time. I can only answer it in a way by telling you how it currently works and how that doesn't work. How it currently works is that legal advice is provided through the IAAAS tender process and a variety of different firms and organisations are appointed to give legal advice to the detainees through that process.
Some of the organisations that provide advice through that process are community organisations who - and firms who, I think, do quite a good job. There are other firms who do it purely for the profit motive and who don't allow the time to actually get proper instructions from the applicants, particularly when they are children. And so I think that that would be one of the first things that I think needs to be built in is an allowance for proper - but it should also be that - it is very difficult for children to give instructions because they don't know the law and they don't often - and often in my experience from now taking instructions from young people, if you have grown up all your life with a great deal of trauma and abuse then you often don't even know that that is not normal.
I wrote an example, I have a little opening thing here that I had written and I have given you an example here, I will just find it here. This is a story about a young person. He in fact, he wasn't a minor, he was 20 but you know, he is not much older than a minor. I asked him if he had ever experienced persecution at school because of his ethnic background. And he said "Oh well it wasn't nice, they called us names and sometimes they beat us." And well, that didn't sound too bad, so I asked him to tell me some more stuff about the school days.
Now, it took quite a long time but eventually I discovered, and on one occasion, somebody from a hostile ethnic group in that community, had come to the school and massacred 10 of his fellow students and he hadn't actually thought to tell me that when I first asked him the question. I don't know why, I don't know what was going on his head but that is what I mean about how difficult it can be to get proper instructions from young people. He has lived his whole life with ethnic violence.
He comes from a particular country where there has been ethnic conflict for sort of 15, 16 years. He didn't know that and also, I mean, the language and the interpreter problem. Maybe he didn't understand the question at first, but, like it took quite a bit of probing to find this horrific story out. Now if you are from a firm where the motive is profit you don't take that time and this is an anecdotal evidence, I suppose, is that some of the firms are told that they need to take instructions from three clients a day. Now there is no way you can take adequate instructions from a young person if that is the amount of time that you allow. In my experience, you know, when I am taking instructions from a young person, I go the first day, I ask questions, I talk to them, I establish some sort of rapport with them. Then I have to come back another time and every time that I see them, because they start to trust me, and because they start to know who I am, you find out more stuff.
MS LESNIE: Can you explain what aspects of the current system stop that from happening in the case of representing children asylum seekers? Is it the tender process, is it the location of the detention centres, is it the number of lawyers that are available? What parts of the system need to be changed to address that problem?
MS le SUEUR: Yes, yes, sure. I think part of it is the tender process in that, you know, it puts some sort of profit imperative in there. I also think it is the fact that despite the fact that three of the main detention centres, Perth, Port Hedland and Curtin are in Western Australia, the majority of the people who are involved in the current tender for provision of advice to people in Port Hedland and Curtin come from Melbourne and Sydney. And I think that that makes for totally inadequate interaction between them and their solicitors.
I mean, the boys often don't know who their lawyer is. The boys have told me stories about how they would go to the RRT hearing or the hearing with the case officer and there is a whole bunch of people and the television and they will say and they don't know which one is the case officer and which one is their lawyer.
MS LESNIE: In terms of unaccompanied minors there is - the way the system should be working as I understand it is that the guardian should be ensuring that unaccompanied minors get adequate legal advice. And for unaccompanied minors in detention centres that would usually be the detention centre manager. In your experience, what - how active have the guardians of boys in detention centres been in obtaining regular advice for unaccompanied minors and ensuring continuing advice through the process?
MS le SUEUR: In my experience they are more likely to be obstructionist than helpful.
MS LESNIE: Do you have examples of that?
MS le SUEUR: Yes, I do have an example. I have an example of one. One of the rules is that people can change their advisers if they can show a substantial reason for wanting to change their advisers. Now one young detainee that I know of, he had what I would call a substantial reason for wanting to change his adviser. He had been asked to comment about something that had been put to him. Something had been put to him in a DIMIA letter. His adviser sent him a copy of the letter and asked the boy to comment.
Now this boy is 16 years old, he hardly speaks any English, the adviser simply sent this letter saying: look this letter has been given to us by DIMIA what do you say about it? So the child, with the help of some other detainees, wrote a one page letter, addressed directly to the case officer, addressing the matter that had been raised. The adviser didn't pass that letter on to the case officer, instead the adviser reduced the detainee's letter to a one line response saying "excessive, he disagreed with what you say because blah, blah, blah. And that was the end of the response. It was just a single line.
Needless to say the outcome was not positive for the case officer. So I suggested to the boy that he should go with the letters to the DIMIA office and ask them to give him a new adviser because his instructions had been clearly ignored. And that is part of the obligations of being a migration adviser to actually follow the instructions of your client. Now in this case because the boy had addressed this letter to the case officer it should have been passed on to the case officer and it was not.
So I said to the boy "take all this up to the DIMIA office, talk to them and tell them you want a new migration adviser." So he booked an appointment. Now in Port Hedland if you want to see the DIMIA managers you have to make a written request for an appointment. And sometimes it can take a week or two to get that appointment. Despite what the Department put in their submission that is how the system works up there. So eventually when he got his appointment he was told, well yes he could change his adviser if he wanted to but they were not going to pay for it, he would have to pay for it himself.
So that is one example. But also in my experience, DIMIA refuses to discuss their cases with detainees. They see their role, from my understanding, and I have gained this understanding like anecdotally but also from material that was put on in relation to both the Odhiambo and Martizi cases. They see their role as kind of explaining the contents of a decision letter. So they might say "Oh here is your decision letter now unfortunately I am sorry to tell you that you have been rejected". And they would see that as being their role.
And this - they may or may not say "Well you have got seven days to apply for a review". But they certainly don't see - and they are very clear, and they have made very clear statements to me about not wanting to get involved in the process with the Department of Immigration, the process of their visas.
MS LESNIE: Is that because of the inherent conflict between their roles or?
MS le SUEUR: I don't think they have thought about it that clearly. I think that they just don't see that as being their role.
ASSISTANT COMMISSIONER THOMAS: You say that you are a frequent visitor to both Perth and Port Hedland detention centres. Can you comment on the facilities of the two places in relation to children?
MS le SUEUR: In my experience I have never seen any children in the Perth detention centre. So I really couldn't say. I know that recently after the issue about children in detention centres came into the public arena, in about, I don't know, January or so, suddenly a whole lot of toys appeared in the Perth Detention Centre. But they haven't come out of their boxes, they are still sitting up in storage because I don't think they have actually got any children and they certainly have not had any since I have been there. In Port Hedland - do you mean facilities in general or you mean legal facilities or?
ASSISTANT COMMISSIONER THOMAS: Yes, facilities in general. Recreational facilities
MS le SUEUR: Look, as a member of the public I have only rarely stepped beyond the kind of public area of the detention centres so I don't really feel very qualified to comment about that sort of thing. There are other people who could probably make that comment better.
ASSISTANT COMMISSIONER THOMAS: Yes, thank you.
ASSISTANT COMMISSIONER SULLIVAN: Perhaps I can narrow it down a bit then and say over the period which I think you said was from '94 onwards, have you noticed any changes in the legal processes that you have described this morning. In other words have there been any improvements or any deterioration in the role that you have played?
MS le SUEUR: I think the deterioration has been remarkable. I remember when I was working for an organisation in Sydney, I was asked by the State Manager there, my organisation was asked by the State Manager there to come and provide training for the DIMIA staff on: How does it feel to be a client. And so we regularly went and had meetings with the Department of Immigration, we provided that sort of feedback to people. That would not happen now. I think the whole atmosphere has changed remarkably. Then I used to get much more of a feeling of co-operation.
That was much more of a sense of being - I am talking about a sense here, you know, and the statements that were sent from the Department managers in those days - were about, you know: like we are trying to make this happen together and we want to put an end to the "gate-keeper" mentality that used to be there. And, so they were quite proud of trying to change some of that culture and I think that that has completely reversed again.
ASSISTANT COMMISSIONER SULLIVAN: And are you able to pinpoint why?
MS le SUEUR: I wouldn't presume to pin point why, but I would point out that there was a change of Government in 1996.
COMMISSIONER OZDOWSKI: Just following from it, how would you describe the culture of the Department now?
MS le SUEUR: I - look, that is a very difficult question to answer. I think the culture of the Department is incredibly hostile to - particularly to asylum seekers and - but I think that the Department is, in my impression, incredibly demoralised and overworked. And it has a really appalling result for applicants right across the board. I think one of the things that you need to remember is that if you are a refugee or an asylum seeker you don't have to pay anything for your application, although if you are in the community I think you have to pay $30 for your protection visa application. But to make an immigration application you actually pay thousands of dollars.
Like a regular application to sponsor your parent upfront is $1100. The level of service that you might expect once you have paid that is simply not there. A person might apply to sponsor their relative from some post and say some of the African posts and it can take at least two years for an application to be processed, you know. And that is because it is incredibly under-staffed. And that is - the staffing too is very uneven, the staffing in a lot of the African posts, in a lot of the posts in the Middle East are incredibly low. Whereas
COMMISSIONER OZDOWSKI: But yes, we possibly go a bit too far. We really would like to focus on children in detention and how this culture relates to it.
MS le SUEUR: Yes sure. Right okay, back to the children
MS LESNIE: Maybe if I can ask a bit more specific question. You represent asylum seekers and sometimes children in the migration interview, which is the process by which DIMIA, the Department of Immigration, determines whether or not someone has a refugee claim. Have you - in the Department's submissions they said that they have increased screening times and they are making efforts to sort of speed up the whole process. I guess I would ask two questions: one have you noticed this effort to try and keep things moving faster, and; second of all, relating back to what we were talking about before, have you noticed in terms of the interviewing officers, are they making efforts to, for instance with children, to try and assist children through the process?
MS le SUEUR: In answer to that, I have never represented young people from the time of their initial application. But certainly two unaccompanied minors that I know of from the Port Hedland detention centre, they arrived in August last year, and they have had their decision within the last month. I would not be exaggerating to say it was probably a month - maybe it was a little bit more than a month, it might be five weeks, but they have actually only just had their decision. Now that does not seem to me like a very speeded up process. And I might be wrong, but I think that most of the other people who came on the same boat with those two boys have already had their decisions quite some time ago. So, in fact, it appears to me that it is taking longer for young people than it is for grown ups.
ASSISTANT COMMISSIONER THOMAS: I have been told that one of the factors of the delay is to find out the identity, the paperwork. Can you comment on that? The length of time in processing may be due to that?
MS le SUEUR: That may well be so. In my experience it can take a long time even if there is paperwork.
ASSISTANT COMMISSIONER THOMAS: So can you comment on why some cases are quick and some cases long? Because there have been cases that are much shorter. What is the factor that makes a case short and a case very long?
MS le SUEUR: I often describe the whole process to people as a bit of a lottery. If you are lucky, you will get a good lawyer and if you are lucky you get a good case officer. And if you are lucky everything goes okay, if you are not lucky and you do not have a good lawyer and you do not have a good case officer, then you know it is fairly much down hill from there. So it really is very
ASSISTANT COMMISSIONER THOMAS: It is a lucky factor.
MS le SUEUR: Yes, it is very arbitrary.
COMMISSIONER OZDOWSKI: On the second page of your submission, you said that children are developing behavioural problems and basically being traumatised. Do you have any direct personal knowledge of cases like it? Or have you been told stories told by a religious order? I am interested in your personal knowledge and experience only.
MS le SUEUR: Yes, sure. I am a lawyer, I am not a psychologist, I do not really know about that stuff. I do know that the children talk to me about, you know, that they do not want to go to school because they feel like they are in prison and in some ways they feel like that refusing to go to school is one of the few pieces of power that they have to actually exert. Because they know that somehow or other, the guards really want them to go to school. So if they refuse to go to school it is a little piece of power that they can exert. I also know that, you know, I know of children who have, you know, developed speech impediments, not necessarily as a result of being in detention. They may well have come with a speech impediment, but I know that stress makes it worse for them. And I have seen children in a stressful situation. When they are talking to me it might not be so bad, but when I hear them talking to the Department of Immigration it becomes far worse because, you know, it is a much more stressful situation.
COMMISSIONER OZDOWSKI: Thank you very much, Ms le Sueur. Any final comments?
MS le SUEUR: Any final comments, just let me think this through. I would make some comments about the issue of the bridging visas that you spoke to Ms Kenny about. Over the past few years there have been a number of unaccompanied minors in detention and, to the best of my knowledge, very few of them, if any, I actually only know of one but there might be more, have ever been assisted by anyone to make a bridging visa application.
Now, one would think that if a guardian, and the Minister is the guardian of the children, was truly interested in - was truly acting in their best interests, that they would have assisted each one of those unaccompanied minors in detention who are all eligible for applying for a bridging visa at some time, would have assisted them to make that application. And I have personally tried to help a number - a couple of young people to make bridging visa applications.
Unfortunately, in the - and it was the two - the Odhiambo and Martizi boys. When I became aware that they were actually eligible to make a bridging visa application, it was only about three weeks before their 18th birthday. And the Department has 28 days to make a decision on a bridging visa application. I had certification from the Department of Community Development that it was in the best interests of the boys to be released from detention. I made the application and the boys turned 18, 10 days apart. On the night before each of their 18th birthdays, the Department rang me with some more information that they needed and there was simply no way that I was going to be able to get that information to them before they turned 18.
COMMISSIONER OZDOWSKI: So what are you suggesting?
MS le SUEUR: I am suggesting that if the Department had any goodwill at all towards these boys and had let that - that it was well and truly open to the Department to have granted a bridging visa to the boys in these cases. And that, even if the thing that they were asking for, the extra thing that they were asking for was real, which I have no doubt it was, you know, and maybe it would have been a good thing to have done. They could have asked for that, you know, a few days before, to give me time to do it.
The fact that they asked for it the very night before they turned 18 meant that that was - there was no - and knowing that there was no possibility that I was going to get that done before they turned 18 seemed to me to be certainly not acting in the best interest - or even showing any real goodwill or trying to do something to facilitate this happening for these two boys. And the other thing that I would like to say is that the - that at the moment the Department may well be right in - may well say that there are almost no unaccompanied minors in detention. Certainly I do not know of any - that - certainly I expect that they would say there are no unaccompanied minors in detention in Western Australia.
Now, one of the reasons for this is that some of those boys, whose process had been going on for quite a long time and the Department had never raised the issue of their age. And so it was not open to the Department to raise the issue of their age at this stage. I mean, for example, they are in the Federal Court, you know, it is a bit late once the boys have gone through the initial application and the RRT. The Department cannot then at the Federal Court raise the issue of their age with any kind of credibility.
Some of those boys have been moved to one of those alternative detention places in Adelaide, which I think is great - okay. There are other boys who are still at the primary stage, who have suddenly been found to be over 18 on the basis of wrist X-rays. Now, the use of wrist X-rays as a determinator of age has come under quite a lot of scrutiny and it is not a process that is accepted by everybody. The Department of Immigration has never in the past sought, to my knowledge, sought to challenge the age of any of the unaccompanied minors.
I know a number of boys who were sadly in detention from the age of they were 15 until they were 18 and are now well over 18. Nobody every questioned their age. But suddenly now that it has you come into the public arena the issue of the responsibility of the Department for unaccompanied minors, it seems to me that their response to it has been to remove the obligation by simply reclassifying the boys wherever possible as being over 18. And I think this is a cynical disgrace. And it has had quite a profound impact on the boys because it means that, even if their processing is still somewhere down - you know, is still ongoing, it means that it kind of removes their option to have a bridging visa.
And I just wanted to make two comments following on from some of the questions that you asked Ms Kenny. One of the questions that you asked was about the case officer being appointed for unaccompanied minors. I know that one of things that the Department's policy says is that they do assign an ACM person to be like a liaison person. And I think at some time they may also might put one of the DIMIA staff as being somebody who looks after the unaccompanied minors.
When I ask the unaccompanied minors: so, do you know who these people are; they did not actually know who they were. And when I said: I think it is so and so; she said: she hassles us all the time to go to school. So it seems that that is the content of the obligation that they see, is to hassle them to go to school. I do not know that if ever - that the young people ever get any benefit from that process. Certainly they do not - they were not even aware of who they were.
And the other thing was a question that you asked about the certification that it is in the best interests of the children to be released and does that happen immediately. The Department for Community Development certainly did certify that it was in the best interests of the - of Simon Odhiambo and Peter Martizi to be released. And the Department certainly did not act on it immediately. In fact they blocked it.
COMMISSIONER OZDOWSKI: Thank you very much, Ms le Sueur, for your evidence.
MS le SUEUR: Thank you.
THE WITNESS WITHDREW [10.17am]
COMMISSIONER OZDOWSKI: Could we ask now our next witness, Dr Judyth Watson please.
JUDYTH WATSON,
sworn [10.18am]
EIRA CLAPTON, sworn
THEO MACKAAY, sworn
COMMISSIONER OZDOWSKI: Thank you very much. Can I ask now, all of you, to introduce yourself by stating your name and also address and organisation you represent for the record.
DR WATSON: I am here to represent the Coalition Assisting Refugees After Detention as one of its volunteers and also I am a member of the Social Responsibilities Commission of the Anglican Church.
MR MACKAAY: I am Executive Officer of the Anglican Social Responsibilities Commission and our office is at [address removed].
COMMISSIONER OZDOWSKI: Thank you.
MS CLAPTON: I work for the Council of Churches of Western Australia as their Refugee Migrant Services Officer and I am also involved with the Coalition Assisting Refugees After Detention. Our office is in [address removed].
COMMISSIONER OZDOWSKI: Thank you very much. Your submission contains a number of cases and I think it would not be proper to discuss the cases here. What we could do after we have dealt with general issues, is clear the room and take the evidence about individual cases in camera. What we could do also if we have any further questions, perhaps we could put them to you in writing and seek your responses in writing as to some cases considering the time limitations today. Is that proposal agreeable to you?
DR WATSON: Yes, yes. All the parents have given approval for us to present their cases to you but some of them would be easily identified and I have done an update yesterday on where those children are now and on their well-being.
COMMISSIONER OZDOWSKI: Thank you. Could I ask you, Doctor, now to make opening statement on behalf of all of you.
DR WATSON: Thank you, thank you. I think it is really important to emphasise that we haven't visited detention centres to observe children and we have met all the children following their release from detention. The CARAD submission addressed concerns related to all the terms of reference and in particular to terms of reference (2) and (4) that is mandatory detention and the fourth one was the impact of detention on the well-being and healthy development of children. We argue in our submission that the treatment of child asylum seekers in Australia contravenes the Convention on the Rights of the Child by breaching many of those articles.
We claim that by incarcerating children and by denying them family reunion, the Australian Government has not only failed to implement the obligations inherent in being a signatory but that they have flouted them. Children have got no comprehension of the reasons for detention. Many of them speak about the time that they were in prison. They experience consequences and among other things we think that detention undermines parental promises of escaping to freedom and to safety.
These children are a most vulnerable group with direct experience of the persecution from which they have fled. The conditions that too many have been exposed to in detention could only compound their anguish and the conditions for many of them on release add to that as well. Many, we believe, have undiagnosed post traumatic stress disorders on release and some cases in our submission support that claim. We have referred to 42 children in the submission, including two born since release and two who have turned 18 since release. All are acknowledged to be refugee children yet they and their families continue to be denied the services and family reunion available to all other refugees.
We think that the children we have met should be recognised as a continuing vulnerable population with special needs, despite, of course, the resilience of some and, as I said, only yesterday I checked about the progress and welfare of most of the kids and their families which we can elaborate on. Although CARAD has actively lobbied for access to appropriate education for child refugees with temporary protection, their access to intensive language centres remains discretionary and is dependent on the number of places available at a particular school. Those centres are important for the children, not only because of the English language learning but because of the pastoral care that is available to them there.
We are also concerned about dental health services and their availability and too many of them and too many adults come out with urgent dental needs, tooth-ache that has been suffered for a long time. I should say that CARAD formed to provide services to people with temporary protection visas, services denied them because of the criteria applying to TPV785s but more and more we have been drawn into issues relating to detention centres. We oppose mandatory detention. We believe that once somebody's health identity and security status has been checked, the claim for refugee status should be assessed in the community with all the supports that are available.
I was asked by the Commission to present any additional issues and I would like to raise three. One is about social security incomes for young people. As dependent children who are school students turn 16, their parents who receive a special benefit lose the family tax benefit for that child. This means their income, the family income, drops by $70 a fortnight which, in a poor family, is not an inconsiderable loss. And those young people, many of whom are unaccompanied minors referred to previously, who are past compulsory school age, can participate in a 12 month full-time school program where there is an emphasis on English language and pastoral care.
Those who are minors and turn 18 while attending school, must decide whether to leave school to continue receiving an income or to continue school and forego an income. The Education Department of W.A. insists, of course, that schooling is a full-time pursuit but the Department of Social Security is effectively prepared to pay young people an income to stay at home. We have, over the past year - CARAD has written to both Senator Vanstone and Mr Anthony and we understand that there are reviews into these two issues. But only last week we discovered that people who have refugees with disabled family member are not eligible for those extra bits of money that we provide to people who need disability support. So that is another area of social security from which people are precluded.
COMMISSIONER OZDOWSKI: Now perhaps if I could ask you a question. You are saying that you are serving so many different people who came out of detention and children. Could I ask you why you have not been joined by any of your clients here in this public hearing, any of the people who have got direct experience of this?
DR WATSON: Many people want to hear the stories straight from the refugee and there is no doubt when they hear those stories they are very powerful. However, refugees are most reluctant, we have found, to tell their story publicly because they fear that any implied criticism of the government will somehow harm their chances of converting their temporary protection into permanent protection. They feel very strongly about that.
COMMISSIONER OZDOWSKI: Even after they have been released from the detention centres?
DR WATSON: Even after being released from detention and, as an Australian, that appals me, that we recognise that they are refugees and they do not feel safe.
ASSISTANT COMMISSIONER THOMAS: These people, their refugee status is still being processed so in a way they are not refugees yet.
DR WATSON: No.
MS CLAPTON: No, no. The government has decided that they are refugees, that is why they have been released into the community.
ASSISTANT COMMISSIONER THOMAS: Okay.
MS CLAPTON: But they have been given a temporary visa. Very often in the first month or so of release, detainees - former detainees will speak about how important it is to improve the conditions of the people they left behind in the detention centre and at that point I have been able to collect a number of statements from people accusing centre managers and others of abuse. However, when I ask them to put it, to actually sign it and make a formal complaint of it, at that point they become extremely frightened and say that they are afraid that their temporary protection visa, when it comes up for review at the end of the 30-month period, that they will not be allowed to stay in the country because they have criticised the government.
DR WATSON: This is a continuing problem.
COMMISSIONER OZDOWSKI: So what you are saying that, because they have got temporary protection visas it creates an ongoing psychological stress on them and it is, in a way, makes difficult for them to settle on a more permanent basis here.
DR WATSON: Yes.
MS CLAPTON: Yes. I have been working for refugees in one way or another for over 10 years. The client group that belongs to those people with temporary protection visas is the most mobile, the most fragile and the most traumatised group I have worked with in that 10 year period and it is because they cannot know what their future is, they cannot put the past behind them, they do not know how to settle, they have very little in the way of settlement services provided for them.
COMMISSIONER OZDOWSKI: Thank you. Could we perhaps now go to the state government guardianship and the Commonwealth guardianship? How does it work? Does the state provide guardianship when they are released?
MS CLAPTON: CARAD has deliberately not become involved with providing services to unaccompanied minors when released because the Department of Community Development has responsibility for those young people. We have at times intervened with the Department of Community Development to suggest improvements to their service or to advocate on behalf of some young people who we have got to know through our social contacts but we recognise that it is the Department of Community Development that is charged with looking after them and which has provided their basic services.
COMMISSIONER OZDOWSKI: Now in your submission you spoke about the medical and other health needs of children. Just a moment ago you mentioned the situation of children who were released and who have disabilities. Could you perhaps say something more about this? In particular what I would like to know is to what extent mental health issues or other issues relate to the periods spent in detention in Australia and to what extent they were the problems brought into Australia? I am also interested in whether you could you comment about long term impact of detention on well-being of children. I know it is very big problem
MR MACKAAY: Without getting into cases.
DR WATSON: Yes, yes.
COMMISSIONER OZDOWSKI: We will come to the cases in a moment.
DR WATSON: Yes.
MS CLAPTON: I can just say in general terms that CARAD's experience is that, when children are released from detention, we notice a number of immediate health concerns and those health concerns would indicate that, to be kind, the word basic might be applied to the health services provided to children in detention. And you can see from the number of cases in the submission that there are a variety of health concerns which either have been dealt with in a kind of a palliative way rather than an active way, health concerns that have not been aggressively treated, health concerns that have been overlooked perhaps.
So, on release, children sometimes are in need of immediate treatment which we believe they should have got in detention and which they did not get. The submission also points to a number of psychological problems associated with the experience of being a refugee in Australia in a detention centre with parents who are depressed, who are perhaps involved in protests in the detention centre seeking better treatment for their children or seeking better treatment for themselves or others and that these have negative impacts on the children.
DR WATSON: I think that children carry with them an awful burden for the responsibility of their parents as well. Very often they learn English language way ahead of their mother or father and they are the conduit into the family for people like us very often and other professionals. And those children themselves - I can think of one particular family where they were all made to watch a man being shot. Two of them were playing with - two of that same family were playing with other children a little time later and these other kids were playing with land mines in Afghanistan. One was killed and one had his arm ripped off.
I cannot see that they will ever recover just from those experiences. And almost all the children to whom we refer in the submission have been under the care of ASETTS, our torture and trauma service. Almost all of them, and certainly the ones that I know, which is about half of these, have night terrors. Many of them are bed wetters. Many of them cannot go to school because either themselves, sibling or a parent has been up in the night. And I do not think we know half of it, half of the pressures put on these children. So that's from the mental health point of view.
We have referred in this to people with physical chronic diseases and disabilities because as Eira says when people come from detention there are some pretty basic unmet health needs, including importantly I think and specially for children, dental problems. We have heard of other refugees doing extractions for people with tooth ache because there is no dentist.
COMMISSION OZDOWSKI: In detention centres?
DR WATSON: Yes.
ASSISTANT COMMISSIONER THOMAS: So after release, in your experience, how long do you observe these syndromes and other PTSD in the children? Do you follow them up for many years?
DR WATSON: Well, the first of these temporary protection visas were - the first people who left detention was January 2000 and that is when CARAD formed. And I can say that many of us has formed friendships as well as working relationships with these families and, yes, it is still happening, they are still going
ASSISTANT COMMISSIONER THOMAS: It is two years after now
DR WATSON: Yes.
ASSISTANT COMMISSIONER THOMAS: For some of them. The first group who got the, you know, TPVs, so it is now about two years now and do you observe any cases that still suffer these syndromes?
DR WATSON: Yes, yes.
MS CLAPTON: I think you need to understand that, whilst they are on a temporary visa, the time doesn't really - time doesn't make any difference in term of overcoming their trauma and settling down. The closer they get to the end of the 30-month period, the more anxious the family becomes about whether they will be sent back and you can see from our submission that many children are terrified about the idea that they will have to go back to situations such as the one that Judyth has described. But I would just like to underline that, whilst these children are traumatised very often before they leave their country and arrive in Australia, their period in detention has also re-traumatised those children and that that re-traumatisation process means that they are mentally at risk, many of them, and will be so until their family has some kind of permanent resolution to their life experience as a refugee.
ASSISTANT COMMISSIONER THOMAS: But even after they received, say, a permanent visa, the effect will still go on.
MS CLAPTON: I have worked with people who have been given a permanent visa in past who arrived in Australia through the offshore program and it does take time to over come trauma, certainly, but with support and with the belief that they are now safe, many people are able to become survivors of trauma rather than victims of trauma. But for the temporary protection visa population, that important safety aspect is not there for them.
DR WATSON: I think too, children are very open to cues that they get from the community and particularly from television and they get a very clear message that a lot of people do not want them here. Very clear. And while there are two cases related to bullying in our submission, it is the experience of several that they have been bullied at school because of who they are.
ASSISTANT COMMISSIONER THOMAS: In your observation of all of these cases, do you see the effect of age in the children, very young ones compared to teenagers?
MS CLAPTON: My experience is that all children will exhibit certain symptoms. A very tiny infant can learn to distrust its world because its parents are traumatised. An older teenager is more likely to want to take responsibility for the family and protect the family. If the parents are depressed or crying, the teenagers will feel as though they ought to be able to solve the parents' problems. The children in the middle very often will go through that child stage where they believe that something that they have done has created an impact on their world in a kind of a magical or fanciful belief because children do not have the consequences of their life experience sorted out the way adults do.
So, they believe that if they shouted at their parent in the morning and the parent had a rejection of their visa in the afternoon, that somehow that was connected to the experience in the morning. So, children take blame, they are just not really logical but they often blame themselves for things that are happening in their families. And I do not think you can say that there is any age that is safe from this.
DR WATSON: I think there is quite a lot of sociological work that you could refer to both in violence against women, studies about violence against women where pre-verbal children are more vulnerable than we ever thought and also in the divorce kind of literature where children blame themselves is .....
ASSISTANT COMMISSIONER THOMAS: So, did you see any of the effects of the relationship between the children and their parents, did you observe anything special?
DR WATSON: It is very protective. They are very protective of their parents in a very touching way.
ASSISTANT COMMISSIONER THOMAS: Do they ever discuss the role of the parents in bringing them here?
DR WATSON: The thing they all remember about coming here, first of all is the sea journey. Everybody. Because no one has ever seen the sea before. And they have to get to know you before they will talk about the reasons for leaving. It's very traumatic.
ASSISTANT COMMISSIONER THOMAS: I was wondering whether you observed any kind of guilt, either on the side of the children or the parents in terms of whether the parents blamed themselves for bring the children here or the children blamed the parents?
DR WATSON: I think there is a lot cultural things in guilt that - I do not know, I mean, we just all take each other on face value, I think. But no doubt that kind of distress is there.
MS CLAPTON: Yes. I think that most refugees will say that the reason they make an attempt to find safety is to make their children safe and they will have promised, very often, to their children that they will be safe. The parent's inability, particularly in detention to have any power over the lives of their children or to make their welfare better, and you will see several of our cases involve parents trying to advocate for something better on behalf of their children in detention and failing to do so. Now, that puts a great stress on the parent who wants to be a provider and wants to provide for their children but is unable to do so because they have no power in that situation.
DR WATSON: And the clothes.
MS CLAPTON: And similarly, yes, the fact that many people report that they have their own clothes taken away from them when they arrive in Australia and they are often only given the most minimal set of clothing and, you know, mothers turning to making bed sheets into clothing for children because they do not have enough clothes for the children to wear. Children on release arriving in Perth without shoes, for example; a family of 4 with one shopping bag of clothing for all 4 of them. One of the first things we have to do with CARAD is to provide all of the family with clothing because they simply do not have enough clothing and they have been in the habit of taking off one shirt, washing it overnight and putting it back on the next day because that is all they have to wear.
ASSISTANT COMMISSIONER THOMAS: How do you think the process influences the role modelling process between the children and their parents? You know, in a normal family children observe their mother performing certain roles and the father performing certain roles but now, because of detention centre, that kind of process may be influenced. So what do you observe after they have come out?
COMMISSIONER OZDOWSKI: Yes. If I could add here. In Melbourne we had much evidence about families disintegrating in the detention process and one of the key issues was that traditional parental roles were undermined and quite often then replaced, even by the ACM guard, becoming an authority role for children rather than father or mother. So, basically that is what we are trying to understand?
ASSISTANT COMMISSIONER THOMAS: Yes, so when you observe the children after they have been released; the family?
DR WATSON: I would have to say that we have not noticed that but some children are here with a father and some with a mother and some with 2 parents. No, I think that in our experience, children are really used as mediators between the family and community, who ever that is. Their family roles are very gender specific so there are things that boys do and girls do and mothers do and father do and that seems to be somewhat exaggerated and, I mean, I have observed all the normal kind of sibling rivalries and those kinds of things that go on but not the guard, no. No.
One family that came down that I met, when we asked their names, they gave their numbers and we have been appalled that this practice continues in detention where people are referred to by number and not by name. And we understand there has been a recent purge on that before the UN visited detention centres that they were emphasising that people should be called by name.
COMMISSIONER OZDOWSKI: Well perhaps we will be moving to a closed session but before we do just to conclude basically, what I understand from your responses to Professor Trang is that basically you did not observe family institution being undermined by experience of detention. So, even if there was temporary disintegration of the family in detention, the family recovers after release. Did I understand you correctly?
DR WATSON: Well, yes, to some extent. I mean, part of what we do at CARAD is assign maybe 2 or 3 or 5 volunteers to a family to help with enrolling children at school, help with medical and other appointments, to teach how to shop and budget and use public transport, to mediate with Centrelink. I mean, we try to provide very full and coordinated service from volunteers and we have got about a thousand volunteers, supporters and donors. People have responded astonishingly generously to our requests for help. We have furnished houses, we have railway tickets for people who want to go to Melbourne.
COMMISSIONER OZDOWSKI: Thank you. Mr Mackaay, is there anything you would like to ask before I will close the public session of the hearing?
MR MACKAAY: I had hoped to be able to put our submission from the Social Responsibilities Commission into a context of the wider Anglican Church's view from within the Diocese of Perth. I have copies of resolutions spanning the years 1992 to 2001 which show a progression of concern in the church which almost looks like the deterioration of the situation in the detention centres and they address things such as access to services within the centres, the need for family units to not be held in the detention centres if the children are to be cared for properly.
And one of the final resolutions last year simply used the word that the church deplores the whole business of the detention centres and wants to see them ended. I should explain the Social Responsibilities Commission speaks in its own name in its own right but when the Synod of the Anglican Church adopts a resolution, that is the Church speaking as the Church and I have copies of those resolutions for you.
COMMISSIONER OZDOWSKI: Thank you very much. We will accept the copies for the record. I see Dr Watson, you wanted to say something now?
DR WATSON: There were just 2 other issues, when I said I had 3 additional issues. One being social security support, another is a rather poor photocopy of a letter written in Dari I have got sent from Nauru from a man who would have no idea that the letter could be presented here. Nevertheless, the recipient wants me to present it and the author of the letter says something like:
Human Rights here are just words and just talk. The people here are going mental.
But he makes this distinction, that as adults he:
...and others made a decision to take this journey to freedom but the children who endured the same conditions are blameless and should not be there in that prison.
I have got a copy if you wanted to translate it.
COMMISSIONER OZDOWSKI: Yes.
DR WATSON: We, of course, oppose the Pacific Solution and understand that about a quarter of the population in Nauru are children. The third thing I wanted to raise was because to illustrate the desperate lengths to which people are prepared to go to effect family union, denied through the temporary protection visa and two of the people here, men on temporary protection visas lost their wives and children on SEIV X which went down in October last year. Two men. One lost his wife and 3 children. Another his wife, 2 children, his brother and sister-in-law and their 3. They were hoping to join him.
COMMISSIONER OZDOWSKI: Yes. Thank you very much. Now, I propose to close the session so I would ask every member of the public to leave the room. Tea and coffee will be served outside. We will now go to individual cases where the identity of people involved needs to be protected. So, if I could ask that only witnesses are present at the table plus staff of Human Rights Commission remains in the room. Thank you.
SHORT ADJOURNMENT [10.55am]
RESUMED [11.40am]
COMMISSIONER OZDOWSKI: Welcome to everyone.
DAVID GORNALL,
affirmed
JUDITH CHERNYSH, affirmed
AARON GROVES, affirmed
KERRY ROSS, affirmed
BILL CURRY, affirmed
TARA GUPTA, affirmed
MAREE De LACEY, affirmed
MARGARET BANKS, affirmed [11.45am]
COMMISSIONER OZDOWSKI: Thank you, and now I would like to ask you to introduce yourself for the records, stating your name and the department you are representing.
MR GORNALL: I am the Acting Director, Country Services for the Disability Services Commission.
MS CHERNYSH: I am a Principal Policy Officer with the Disability Services Commission.
DR GROVES: I am the Chief Psychiatrist of Western Australia and the Acting General Manager of the Mental Health Division in the Department of Health.
MS ROSS: I am the Acting Principal Policy Consultant with the Federal Affairs in the Department of Premier and Cabinet.
MR CURRY: I am a Senior Project Officer with the Department of Community Development.
MS GUPTA: I am Director, Legal Services, with the Department of Community Development.
MS De LACEY: I am Executive Director, Country Service Delivery, Department for Community Development.
MS BANKS: I am Acting Executive Director of Student Services and Community Support with the Education Department.
COMMISSIONER OZDOWSKI: Thank you very much. As I understand each of you would like to make a short opening statement on behalf of the department you represent, so what I would propose to do is to start with the Department of the Prime Minister and Cabinet and after Ms Ross addresses us, if we could go to Ms Margaret Banks because as I understand it you are having the pleasure of estimates later in the day.
MS BANKS: We will need to leave at 1 o'clock.
COMMISSIONER OZDOWSKI: Thank you. So could we start with Ms Ross please.
MS ROSS: The Western Australian Government welcomes the opportunity to appear at this hearing in support of its written submission to the Inquiry. The whole of government submission was jointly prepared by a number of government agencies. Western Australia's submission focuses on the need to develop effective Commonwealth/State mechanisms, for coping for what is a relatively new and highly complex situation. This situation is the direct outcome of a series of Commonwealth policy decisions.
The provision of services adequate to meet the needs of children, both in immigration detention and after their release into the community is a matter of prime concern to the government. State government agencies have the operational capacity to provide many of the services required but the Commonwealth needs to accept full responsibility for funding such services. There is an urgent need to develop formal service provision arrangements between DIMIA and state agencies, based on full cost recovery from the Commonwealth by the state. Clarification of state and Commonwealth roles and responsibilities in relation to child welfare. Is another crucial matter raised in the submission. My colleagues here today are from the areas of child welfare, disability services, education and health. They would like to make their statements now please.
MS BANKS: Margaret Banks from Education. The Department of Education of Western Australia is willing to provide for the educational needs of students in immigration detention centres given adequate Commonwealth funding, and the capacity to provide for and accommodate the number of specialist teachers needed to meet the demand. Currently, our only provision for children who reside in detention centres is at the Derby District High School, where the school is continuing to educate those children with adequate mastery of English who are based at the Curtin Detention Centre.
The school has the capacity and willingness to accept more students in the context of resource provision, the principal of the school is unsure of the life of the detention centre and therefore restricted in planning for the future. The Department of Immigration and Multicultural and Indigenous Affairs is currently negotiating with Christmas Island District High School to establish an education program for those potential students who will be located at that centre. Based on current trends, it could be expected that up to 400 children requiring an educational program could be at Christmas Island Detention Centre at any one time.
Up to 800 new arrival students are enrolled each year in intensive language centres in Western Australia. Many have come from detention centres. The Department of Education currently provides tuition to students with English as a second language needs in these intensive language centres at a ratio of one teacher to 15 students. Unaccompanied minors on temporary visas who were enrolled at the Balga Senior High School last year in an emergency situation are now being educated within the post compulsory intensive language centre at Cyril Jackson Senior High School. The individual needs of all children, including those with learning difficulties and disabilities, can be catered for within the environment in which they are enrolled. Thank you.
COMMISSIONER OZDOWSKI: Thank you. Let us go around the table.
MS De LACEY: I am Maree De Lacey from the Department for Community Development. I will give a brief statement about our role and some of the issues in relation to that role and then I will hand over to my colleague, Bill Currie who, will talk about his area of expertise which is around children on temporary protection visas and the care of them outside of detention centres.
The Western Australian Department for Community Development has three areas of involvement with unaccompanied children and families seeking asylum. Firstly, the department has responsibility for the investigation and response to allegation of child maltreatment involving children held in Immigration detention facilities or released into the community and brought to the department's attention by DIMIA or by members of the community. Limits on the capacity of the department to undertake this role, include that the department does not have the power to remove a child from a detention centre if there are concerns about care and protection of the child, this authority rests with DIMIA.
The department has no automatic right of entry to detention facilities as these are located on Commonwealth land and so it must seek permission to visit. Following its investigation of child protection notifications, the department makes recommendations to DIMIA based on its assessment, but once again the responsibility for implementing the department's recommendations rests entirely with DIMIA. It is important to note that DIMIA retains the ultimate duty of care for all people held in immigration detention facilities including children.
It is also important to note that Western Australia, unlike other states, does not have mandatory reporting of child maltreatment allegations. The department is currently negotiating a Memorandum of Understanding with DIMIA which clarifies the respective departmental roles and responsibilities in relation to child protection notifications and general concerns regarding the well-being of children. The MOU also makes provision for the departmental staff to provide training to DIMIA and to ACM staff concerning child protection and child welfare issues. These negotiations on this MOU are progressing and we do anticipate this MOU will be finalised in the foreseeable future.
The second area of involvement concerns provision of advice regarding the general welfare of accompanied and unaccompanied children following requests from DIMIA. The third and the major area of the department's contact with refugee children involves acting as guardian for unaccompanied children released from detention to live in the community. Currently the department is providing support to approximately 21 of these children but these numbers do fluctuate. It is of great concern to the department that the Commonwealth has failed to provide realistic levels of funding to the department for supports to these vulnerable young people.
During 2000 to 2001 Commonwealth reimbursement to the department represented only 29 per cent of the total expenditure on services for those young people. In conjunction with other state and territory community services departments the Department for Community Development has been negotiating an MOU with DIMIA for additional supports to unaccompanied children released from detention to live in the community. This MOU is in addition to the one I referred to previously about child protection. Since October 2001 there has been no progress at officer level on this second MOU with DIMIA and this issue does require urgent att