HREOC Website: National Inquiry into Children in Immigration Detention

Transcript of Hearing - SYDNEY

TUESDAY 15 JULY 2002

Please note: This is an edited transcript

DR SEV OZDOWSKI, Human Rights Commissioner

MRS ROBIN SULLIVAN, Queensland Children's Commissioner

PROFESSOR TRANG THOMAS, Professor of Psychology, Melbourne Institute of Technology

MS VANESSA LESNIE, Secretary to the Inquiry

DR OZDOWSKI: This is one of a series of hearings to be conducted around Australia. My name is Dr Sev Ozdowski and I am the Human Rights Commissioner and I am assisted in the Inquiry by two colleagues of mine, Mrs Robin Sullivan who is to the left of me, the Queensland Children's Commissioner. To the right of me is Dr Trang Thomas who is a Professor of Psychology at Melbourne Institute of Technology. Also at the table is sitting Ms Vanessa Lesnie who is Secretary to the Inquiry.

Before I commence the hearings I would like to note the following matters. First the Commission believes that it is very important to respect the privacy of individuals and to protect children in particular so even where individual cases have been made public elsewhere individuals should not be named in these hearings. I have also issued a number of directions to protect the privacy, security of employment and human rights of people assisting or otherwise involved with the subject of this Inquiry.

The effect of these orders is that the identity of asylum seekers is not to be disclosed throughout the hearings and the identity of any other person who requests anonymity is not to be disclosed and finally that the identity of any third parties is not to be disclosed. This includes current and former employees of immigration and detention centres. These people should not be named because they have not had an opportunity to defend themselves against allegations that could be made. Therefore I ask the media to adhere to the following where a witness requests not to be identified by name or photograph even though they may have been given public evidence. Please respect this request and when filming also please respect the wishes of those who may or may not wish to be included in background shots.

So now I would like to invite the International Commission or Jurists and the Legal Aid Commission of New South Wales to give their evidence. Do we have a Legal Aid Commission of New South Wales?

MS ELIZABETH BIOK: I am going to do both Commissioner. My colleague is just here from Legal Aid, we will do that together.

DR OZDOWSKI: Fine. The role of the Commission is to test the evidence that was provided in your submissions and to elicit further useful information for the Inquiry, so to start with I would like to ask you to take an oath or affirmation.

DAVID BITEL, sworn [9.47am]
INTERNATIONAL COMMISSION OF JURISTS

ELIZABETH BIOK, affirmed [9.47am]
INTERNATIONAL COMMISSION OF JURISTS and
LEGAL AID COMMISSION OF NEW SOUTH WALES

DR OZDOWSKI: Thank you, now I would like to ask you to give your names addresses, qualifications and capacity in which you are appearing for the purposes of record.

MR BITEL: My name is David Bitel, I am the Secretary General of the Australian section of the International Commission of Jurists. I am here today to represent the ICJ in its submission to the Inquiry. I am also a solicitor of the High Court of Australia and the Supreme Court of New South Wales.

MS BIOK: My name is Elizabeth Biok, I am a member of the International Commission of Jurists and I am here today to support our submission which we provided to the commission. I am also a practising lawyer in the area of refugee and administrative law.

DR OZDOWSKI: Thank you very much and I would like to thank you for the submissions that you have provided. They are certainly well thought out and you have put plenty of work into them. Now what I would like to do is to ask both of you to make a short statement especially indicating your expertise in the area of Inquiry or your contact with refugee children.

MR BITEL: If I could go first. The ICJ has for some time been very concerned about Australia's policies generally in relation to refugees. Refugees are considered amongst the most vulnerable of people within the community and certainly refugee children would be even more vulnerable in that context. So the way in which the law handles refugees is something which has to be of paramount concern. The ICJ is an international organisation concerned with issues relating to the rule of law and human rights generally and ensuring compliance by member states of the United Nations with International principles that have been adopted.

The ICJ for many years as I said has been involved with refugee issues and has been in fact a member of the Refugee Council of Australia and in another capacity I in fact represent the ICJ on the board of the Refugee Council and for many years have in fact personally been President of the Refugee Council of Australia. I am not appearing today though in that capacity. You asked to address on personal abilities, I also have practiced as a solicitor in the immigration and refugee area.

The submission that was sent to the commission was largely the work of her Honour Justice Elizabeth Evatt and Elizabeth Biok and myself which formed a subcommittee within the ICJ. Her Honour cannot attend today because she is interstate but I am sure would be happy to, or will certainly be looking at the transcript of the proceedings today and may wish to make further written comments as well.

DR OZDOWSKI: May I ask any additional written comments could be provided at a later stage also if you would like to mention particular cases which do involve names, talk to my Secretary to the Inquiry after

MR BITEL: The ICJ took the position that they would rather annunciate basic legal principles as we are not an organisation which deals with applicants per se whilst certainly members may be aware of individual cases it was felt that those would more appropriately come through organisations which may represent individuals so you will see our submission largely just deals with fundamental principles.

DR OZDOWSKI: Ms Biok, would you like to make a statement?

MS BIOK: I would like to support what Mr Bitel has said. I see that is the ICJ’s role to draw attention to the international law aspects of this issue and certainly the ICJ has long been concerned with the breaches of international law that are occurring in our migration system and the treatment of refugees. That is something that the ICJ has very much tried to monitor and to write to the minister where appropriate. On some occasions we have had specific cases brought to our attention and we have tried intervene and make some positive representations. As Mr Bitel has pointed out we do not represent refugees per se.

DR OZDOWSKI: Thank you. Now what I would like to start with is the issue of judicial review of detention and the international law and under domestic law. We were provided with quite a substantial submission from the Department of Immigration. It is a public document so hopefully you've seen it. On page eight of this document the Department of Immigration has submitted that under Australia law immigration detainees have the capacity to take proceedings before a court to determine the legality of the detention. It of course means that children in detention can legally challenge their detention in a court of law.

What I would like to ask you is that statement correct and if it is correct do you know of any challenges which were undertaken by children in detention?

MR BITEL: I can say that the ICJ in fact did address this in its submission, it is a view of the ICJ that the legislation which has been in place now for almost if not ten years, effectively, provides no effective means of judicial review of the detention other than to determine whether or not a person is a designated person who would then be eligible for detention. Apart from that very limited and narrow area, it is the view of the ICJ that there is no effective ability to seek judicial review of the detention and as a consequence the detention process in Australia is arbitrary and to that extent the ICJ would adopt the views of the human rights committee in A’s case with regard to the detention system and the eligibility for judicial review.

The ICJ is not aware of or I am not aware of any pending or current proceedings in Australia which look at the issue and I am not aware of it particularly with regard to children.

MS BIOK: Commissioner if I could add, since the passing of the privative clause, section 474, this has become even more unrealistic. The only way a child could be released from detention would either be through the grant of a substantive visa or a bridging visa. Now there are provisions to have a bridging visa granted to allow release. If somebody wanted to question the fact that the bridging visa has been rejected, under the privative clause legislation they cannot do that now.

As well as that there is the further problem that children cannot get legal representation to assist with that. It is difficult enough for children to access lawyers and to have their cases heard in relation to refugee status. Practically there are very few lawyers who would be able to go in and be able to run a case to get a prerogative writ to have a child released from detention.

DR OZDOWSKI: Would you know how the issue of judicial review is regulated in other compatible countries like the US or UK?

MS BIOK: I have just been doing some research on this Commissioner, the difference is under the Canadian system and the American system, there are some human rights guarantees in their constitution.

DR OZDOWSKI: So we are back to our bill of rights issue.

MS BIOK: We are. Unfortunately. In America there have been cases where people have been released by pleading aspects of the constitution and in Canada under the charter.

MR BITEL: Of course in Europe you've got the general provisions of the European Human Rights Law which England has now acceded to as well.

DR OZDOWSKI: Yes. Now coming back to international law, what would you describe as reasonable period of detention regarding children?

MR BITEL: The ICJ in its submission has adopted and supported the alternative detention model that was proposed by the Refugee Council and others. That model accepts that it is appropriate for people on arrival undocumented to be detained, that word is perhaps an emotive word, but to be held for bona fide assessment for health checks and for security clearances and the period that it is contemplated would certainly be no more than three months but in respect of minors it could conceivably be a lot less than that.

DR OZDOWSKI: So in terms of general immigration detention three months possibly it could be a reasonable period in some circumstances in your view but when it's coming to children it should be possibly much shorter, that kind of thing also concerns

MR BITEL: Well, one assumes that the issue of health assessment, dental assessment and security assessment should not take very long in respect of minors and in relation to the issue of determining identity I guess it depends on whether the children are accompanied or unaccompanied but if they are unaccompanied it would be faster perhaps than if they were accompanied.

DR OZDOWSKI: There is an apparent conflict between the need to further enforce some period of time and also the issue of family unity, quite often Minister Ruddock is coming publicly and saying that basically he is looking at family unity as an over-riding principle and as a consequence children cannot be released from detention. How would you interpret that part of international law?

MR BITEL: My view is that the fundamental principles of international law as enunciated in the Convention on the Rights of the Child are that you have to have regard to the best interests of the child and of course that is a provision which is adopted under Australian domestic law in the Family Law Act though not with direct reference to children in immigration detention but in looking at the issues of custody and access as they were called under the Family Law legislation those are the paramount considerations.

Certainly the importance of maintaining the family unit is very important but that is only one of the considerations which have to be looked at within the context of what is in the best interests of the child and I mean, if there is a system which is determined to detain parents then it is the view of the ICJ that except in exceptional cases given that our view is that children should not be detained except in that limited situation on arrival, alternative arrangements need to be made preferably with the parents not in detention, but if the parents must be detained then the children should not be detained but should have access to the family nevertheless but not by the children being in detention.

Now different provisions apply of course where you are dealing with unaccompanied minors because they are not here by definition with their parents.

DR OZDOWSKI: There are for example situations when one parent is out of detention on TPV and the rest of the family including children are in detention. What do you think about this kind of situation?

MR BITEL: In a situation like that it would seem obtuse to still detain children if there is a parent who is not in detention.

DR OZDOWSKI: Why do you think the government insists on keeping those children in detention?

MR BITEL: Well, I think that there has been a fairly loose approach to Australia's obligations under the Convention on the Rights of the Child but when it suits governments to - and of course this is not just the contemporary government, the previous government had the same policy of detention of minors - when it suits governments to refer to international obligations under the Convention on the Rights of the Child they will do so but then they won't do so in other contexts.

I cannot look into the minds of government but I mean it is my personal belief that the fundamental reason why detention is maintained is it is seen as a deterrent and if deterrence involves applying policies which are so strict that people would be afraid that if they were caught up in the net of those policies it would be to their detriment that they won't then come to Australia, then to that extent the government's deterrent program may be seen to be working but at great cost to the individuals who are involved and at great cost to Australia's international reputation as a country which follows the rule of law.

MS BIOK: Commissioner, could I just add something? It would seem that where the children have been disclosed by the parent who now is a TPV holder on their application where there is some sort of identity document which links the child with that parent there would be no reason once the child has had a basic health examination to keep that child in detention. And Commissioner, one issue I would like to raise with you and I am sure it has already been raised is keeping children virtually in solitary confinement during the screening in and screening out process and not allowing children to have legal advice at that stage and I think that is certainly a breach of our obligations under international law and especially the specific obligations to refugee children which are part of the refugee convention.

We have heard anecdotally from various detainees after their release within Curtin and Port Hedland, unaccompanied children are kept for months on end in solitary confinement. Now I know one group of people who arrived by boat in northern Australia who are now on safe haven visas, they had quite a number of children with them and they were kept in solitary confinement for eight months.

DR OZDOWSKI: Solitary or separation?

MS BIOK: Oh, separation, apart from other detainees and therefore without any access to legal advice. Now I think that by denying children the right to see a lawyer, by denying them the right to have somebody explain to them what the process is and what the refugee convention means we are certainly breaching our obligations and that is something that the Department could easily resolve. All youth services have a hotline in all states of Australia for young people who are taken in by police so they can access a lawyer quickly. It would not be difficult to have a similar system set up for children when they are taken into detention.

DR OZDOWSKI: Could I return for a moment to this public policy goal of deterring people from coming? Isn't such a policy with laws sufficient to over-ride the principles of family unit under international law?

MR BITEL: I think in the whole refugee debate one thing has been lost sight of and all too commonly the politicians and the media speak glibly of sovereignty of the borders and the right to control entry. The refugee convention is one major exception to the doctrine of sovereignty of the borders and where a person makes an application for protection as it is called in Australia and is then found to be a refugee the whole issue of sovereignty of the borders does not apply.

DR OZDOWSKI: Coming back to legal access and making separate assessments of children I am aware of cases when children were kept in separation detention for over seven months without access to a whole range of services which would be deemed as necessary for children in broader society. Can you perhaps explain to me how would it change the decision making or assessment, the outcome if children had access to lawyer and if they were viewed as a separate unit from family unit?

MS BIOK: Commissioner, I think the children at least would be informed and know what the questions that are being asked of them mean. We are talking about children who have been traumatised by their experience at home and then by their travel to Australia, children who not only arrived by boat with other people but arrived by plane and dropped by a smuggler at an airport somewhere. This child then is apprehended and kept at the airport.

Often the turnaround time for these children could be less than 12 or 24 hours. Now in that time they are asked a raft of questions through a telephone interpreter, they are not in a position to be able to understand what the process means and they need to be advised on that.

DR OZDOWSKI: What about the guardian? To what extent does international law define the duty of a guardian of a child in such a situation?

MS BIOK: Certainly domestically under the Immigration Guardian of Children Act the Minister has specific duties and also in the case of X and Y and the Minister, North J has indicated what he considers the Minister's duties to be as a guardian or children and I would say that it is the Minister's job as a guardian to provide that children are aware of their legal rights.

DR OZDOWSKI: Is he providing property duty of care for children as a guardian according to your knowledge?

MR BITEL: It is argued that the Minister is failing in his responsibilities under that legislation to properly have regard to the welfare of the children and to take all the steps which a guardian must adopt. In many regards of course there is a patent conflict between his role as minister to oversee the immigration program and to ensure the integrity of that program and also to ensure the integrity of the refugee program and on the other hand to have regard to the protection of children.

Certainly in a situation where children are being detained which for the reasons we have said in our submission we consider to be a breach of all the fundamental principles of law and then to the extent that the Minister is overseeing that breach, he is in conflict but he is also caring for the children.

DR OZDOWSKI: Could you perhaps compare for me the situation of a child in detention and a child in a broader community? Let us put it as an example that the child in detention is experiencing riots and does not have access to proper schooling or to some medical services. What would have happened if a similar situation occurred with a child in the broader community?

MR BITEL: I would have thought there would have been a public outcry of gargantuan proportions. If children were in the community experiencing the traumas which children in detention experience on a daily basis. I mean the first item in the news today was the issue of DOCS and its failure in New South Wales to properly care for those who are under its charge. Quite properly that is the subject of I believe, an ombudsman's report and all sorts of public inquiries.

Fortunately we have got this Inquiry but it has been going on for far too long and how many children have been traumatised in a manner which is, we fear, of a permanent nature, children who will ultimately become Australians and who will be expected to maintain themselves within the community in a manner which is appropriate and yet it is the laws of this country which are in our view in large part added to the traumas which must have severe permanent impact on them.

Now, I can only stress that the obligations of the guardian in that situation have to be paramount and to the extent that the guardian is also the prison warden and we haven't made reference directly to it in our submission but the issue of the torture convention is something which springs directly to mind as well and certainly within the context of the Torture Convention the manner in which people are detained could be a breach of obligations under the Torture Convention.

MS LESNIE: What sort of features of detention would make it a breach under the Torture Convention?

MR BITEL: Well, if a person is - if there are breaches of the international principles to start with in the manner in which children are to be detained it could be argued that there's been a breach of the Torture Convention or the issues under the Torture Convention could come into play and we've argued in our submission that the manner in which children are detained could arguably be a breach of the minimum standards applicable for the detention of juveniles.

MS LESNIE: And certainly placing children in an environment where they are likely to commit acts of self harm and watch other people to commit self harm would be placing them in a situation which would be a breach of the Torture Convention. I could just come back to the Commissioner's comment in relation to guardianship and what would happen to children in the wider community in a similar situation certainly they would be brought to a children's court under care proceedings?

DR OZDOWSKI: The person responsible for care would be taken to the court.

MS LESNIE: Yes. And similarly under the Immigration Guardianship of Children Act the Minister has the power to give the custody of the children to another party as custodian but he must indicate why that is a suitable person to be the custodian of the child. To my knowledge we haven't had any assessment of why ACM is considered to be a suitable custodian for children and certainly for unaccompanied minors where there is no adult in control.

DR OZDOWSKI: One thing I don't understand. We have quite good state laws protecting children and somehow these laws are failing to apply to children in detention. Could you perhaps explain what the problem is because we don't have as I understand any Federal laws dealing with protection of children because it's a state responsibility but on this particular situation here the children appear not to be covered or the laws are not being applied to situations in detention.

MS BIOK: I think that comes back to more or less legal fiction. The detention centres are the territory of the Commonwealth of Australia and people who are in them have not yet entered Australia.

MR BITEL: And I think that the facts that applies that the children are effectively in Australia and therefore are the subject of Australian law and to that extent I think I would share your concerns which I read between the lines that there may well be not only a failure by the Federal authorities but by state departments who are charged with caring and protection of children, that they are failing in their responsibilities and that it's unacceptable to just pass the buck and say that it's a Federal issue because they're in immigration detention.

They are still children who are in Australia who on the statistics especially for Afghans and Iraqis have 85 per cent or better chance of being ultimately allowed to stay in Australia and who will then become Australians. And to the extent that there has been a failure by the state authorities to take appropriate actions under their legislation I think that that is equally a matter of concern.

MRS SULLIVAN: You used the term "legal fiction" before, is there a legal solution to this dilemma?

MS BIOK: Well, I think there is one in terms of a visitor system where the state agencies would be able to establish and to control and monitor what is happening in the detention centres to establish standards and guidelines and to regularly have people going there as visitors to (1) the detention centre and (2) to specific children who may be at need and I'm thinking of children who are disabled, ill or are showing real signs of mental illness and cannot be released for whatever reason.

MR BITEL: And I've rarely had other submissions on this, the Immigration Guardianship of Children Act, but I think that that Act needs to be the subject of serious review and it may well be that the Minister should not be the person who's charged with the responsibility but perhaps the Federal Minister for Family and Community Services or whatever it's called in the Federal context or some independent person such as one of the state commissioners but a Federal commissioner in that context.

DR OZDOWSKI: I'll perhaps ask my Assistant Commissioner has she got any additional questions before I move to legal aid issues.

PROF THOMAS: Regarding the issue raised earlier that in the best interests of the child where the child should be put on one side, practically everybody has said the children should not be in detention centres but on the other side children should not be separated from their family. You submitted we should consider the cares and the best interests of the child, does it mean that you hold that there may be some case that children can be forcefully removed from their parents against their wish if it's in the best interests of the child?

MR BITEL: Having been the person who said that, yes, I think there must be, just the same as in the Family Law jurisdiction where you've got husband and wife both of whom are competing for the custody of a child inevitably I think one party will win and so the child will be taken from one of the parents because that's what the court considers to be in the best interests of the child. So in a situation like this given that the fundamental principle is that a child in a detention centre it's wrong, can never be acceptable under any circumstance.

If it's determined that no matter what parents should be in detention centres then I would say except in the most exceptional circumstances which would be subject to outside involvement, you have to have counsellors, perhaps there should be an issue of judicial review of it much the same as there is in the Family Court and a determination of what is in the best interests of the child except in a situation like that I think I would say yes. I would be somebody who would say, it would be in my view better for the child to be outside not in the detention centre, not denied access to visitation rights to the parents but in a situation where the child can be brought up in the most normal situation possible having regard to the abnormality of the fundamental situation.

MS BIOK: And I can think of an example straight away, not all children who are in detention centres are in a refugee situation. There are families who have become unlawful in Australia and then the family is taken into detention while moves are made to see if they can apply for another visa or arrange to leave Australia. Now in that situation children will go into detention with their parents. They may have relatives outside who are Australian permanent residents or citizens who could then take the children and allow them to continue their normal life before they were in detention, allow them to continue going to school as they had beforehand.

So while the procedure is carrying on and their parents remain in detention because there could be a valid fear that somebody will again abscond into the community somebody who may have been here unlawfully for a significant period of time it may be valid for the parents to be detained but in that situation the children could validly or very easily go to the care of somebody who had close personal links with them.

PROF THOMAS: Well what if it is the case where the children because of the variety of ages involved insist on being with the parents because I think in these cases why the parents have always been the caring parents. If you ask the children most of them will say they want to be where ever their parents are.

MS BIOK: It is a very individual matter.

MR BITEL: Yes, it is an individual matter which should be the subject of not only a decision by a departmental officer but should be the subject of possibly a review and that is again where the role of an outside guardian should come into play. Somebody who is independent and has the best interest of the child at heart but sometimes decisions are taken which are not always decisions which the children themselves would want because it is considered in their best interest.

I appreciate it is an invidious situation and it is a very difficult one but if we are to have a system of mandatory detention we fall back on the basic principle that it can not be acceptable to detain children under any circumstances except for that initial screening period. Once you have accepted that basic premise you then have to adopt formulas and procedures to work out ways in which you can over come the particular problems that you have addressed Commissioner.

DR OZDOWSKI: The Minister often expresses concern about the possible absconding of asylum seekers, do you have any information about families of asylum seekers absconding?

MS BIOK: There seems to be a contradiction here for me Commissioner, the minister is constantly telling people that refugees are coming to Australia to look for a better lifestyle, to look for better health, economic stability for their children and better education. Now a family is not going to abscond with a child if they are not going to be able to access health and education right and that is going to make them very easily disclosed and identified in the community.

MR BITEL: And also I think that there is a mixing of apples and pears in this whole debate about absconding. Anybody who has a fear of persecution which is well founded would if they have got the slightest brain in their head, not abscond during the period of processing. If they have been ultimately refused in the determination system at that stage maybe they will abscond but whilst the application is both at the primary stage and in the review stage before the RRT it would seem to me if somebody has (a) an application which is well founded and (b) where there is an 85 to 90 per cent chance of success if they are an Iraqi or an Afghan that they are certainly not going to abscond but they are going to do what every normal person would do in that situation which is comply with lawful directions to ensure that their case is given maximum consideration and the prospects of success.

Now Australia is not unique in this problem, ever country which has got asylum applications faces the problem of what do you do about absconders but Australia is unique in the approach that it takes in terms of mandatory detention as a means to solve that problem. Now if every other country can accept that there is a risk and of course there is a risk but you have to weigh the risks and if the risk is because a few people might abscond therefore the vast majority of people who are in detention and children who are in detention must continue to be detained at God knows what cost to those children then it seems to me that that is an unacceptable compromise and it can't be accepted.

DR OZDOWSKI: Do you have or could you point me to any statistical evidence to support your claims that families are unlikely to abscond, maybe from other countries where kids are kept in the community?

MR BITEL: I can't give you those statistics, I don't know whether Ms Biok can but I mean it is a question which if at the conclusion of the hearings you still have I am happy to take on notice and get some information.

DR OZDOWSKI: Please take it, I would be very much interested especially about evidence from countries which are compatible to us like US or UK or Canada.

MR BITEL: Or New Zealand?

DR OZDOWSKI: Yes, New Zealand whatever but now can we ask - my Assistant Commissioner has a few questions.

MRS SULLIVAN: Can I just return briefly to the concept of duty of care and my question is what do you advise should be the legislative base for defining duty of care and I guess what role might international law might play in coming to an appropriate definition of duty of care?

MS BIOK: Of the top of my head I would say to ensure that all the basic human rights as set out in international instruments are being met and certainly in the universal declaration we have a very clear listing of rights that should be met and then in CROC we have the comparative rights for children and we could easily see that all of those rights are not being met in detention centres and that is something that certainly the Commonwealth Attorney General with state agencies and commonwealth agencies mandated to look after children should prepare guidelines and then ensure that those duties are being met.

MR BITEL: I mean I would think that the guidelines would surely exist in the other hat that you wear Commissioner. If somebody asks you, well what standards would you expect to be applied obviously Commissioners at State level have developed standards and there seems to be no reason why similar standards wouldn't apply merely because these are children who are not yet part of the formal community in Australia because they haven't been granted permanent or temporary visas but they are still entitled to the same rights as children.

DR OZDOWSKI: Also the children which were determined not to be refugees and who are awaiting deportation they should be accorded similar rights?

MS BIOK: Absolutely.

MR BITEL: Absolutely there is no doubt about that and Ms Biok made reference to the fact that not all children in detention are either asylum seekers or refused asylum seekers. That there are I don't know the precise numbers but you would be able to get those from the department, there are certainly numbers of children who have been picked up who are in the community at large because of the mandatory detention provisions of the legislation in respect of anybody who doesn't have a visa. They are also the subject of detention and presumably they are also the subject of your concerns for the purpose of this Inquiry and similarly it should be considered within the context of our submission.

The same principles apply to them, they are people and we have absolute obligations to children whilst they are physically in this country and to the extent the issue of legal fiction that they have or don't have visas or haven't entered into the jurisdiction for legal purposes is a nice issue at law but the fact is that they are still here and if you have a look for example at what happened to the Cambodians some years ago when they were in the detention and they had to go through this ridiculous regime of going back to Cambodia, staying there for 12 months and then we gave them visas to come back to Australia.

In fact I think there was, was it "A" himself or one of the children in "A"s case who was a Cambodian and had been in the detention centre for some years. I think it was four years there were some Cambodian children who were then ultimately sent back and then came back to Australia. Now I mean just because they may not be here now they may be here in the future and so we have to be concerned about the long term consequences to the children as a consequence of that detention.

DR OZDOWSKI: Basically what you are saying, that every child in Australia regardless of immigration status is entitled to our protection and favour.

MR BITEL: I think that's what the Convention on the Rights of the Child says.

MS BIOK: That's certainly the international law.

MR BITEL: To the extent that Australia doesn't provide that protection then we're falling down on our international obligations. It's no defence or excuse to say that to rely on the provisions of the Migration Act to hide as a shield for failing to comply. It brings to mind this whole issue of having to say sorry and I fear that in the years to come this sorry episode will lead to many Australians taking the view that we have a sincere apology to make to those who have been the victim of public administrative policies which are wrong.

DR OZDOWSKI: Coming briefly to Legal Aid issues.

MS BIOK: Right, I've got my colleague from Legal Aid here.

DR OZDOWSKI: If we could ask you to join us at the table please. If I could ask you first to take an oath or affirmation.

PHILIPPA MARTIN, affirmed [10.27am]
LEGAL AID COMMISSON OF NEW SOUTH WALES

DR OZDOWSKI: Could I ask you to state your name, the organisation you are representing and your address for the public record?

MS MARTIN: My name is Philippa Martin. I represent the Legal Aid Commission, the National Legal Aid. The address is [address removed], that's Legal Aid New South Wales. I'm a solicitor.

DR OZDOWSKI: Thank you very much. Could you make a brief opening statement and in particular what I'm interested in is to what extent asylum seekers are entitled to any legal aid in Australia.

MS MARTIN: We represent the National Legal Aid which is a coalition of eight legal aid commissions through the state and territory legal aid commissions. The commissions have expertise in administrative law and in representing asylum seekers. We also have expertise in representing juveniles in detention in criminal law jurisdictions. In terms of representation, in the past representation for asylum seekers in detention has been provided through the Attorney-General's Department and national legal aid commissions were funded directly through that scheme. That scheme changed in 1997 and whatever representation is provided to asylum seekers in detention is now provided through the Immigration Advice, IAAAS scheme, which is funded by the Department of Immigration. People in detention signal that they would like a representative and the Department of Immigration provides a person with a representative once they have been screened in, that is once they have been allowed by the Department of Immigration to apply for asylum

DR OZDOWSKI: So the advice wouldn't be provided on initial stage when they were in separation detention, would it?

MS BIOK: No, there's no access to lawyers.

DR OZDOWSKI: So in a way if they do not know the right formula there is nobody there to advise them about it at the initial stage of applying?

MS MARTIN: That's exactly right. People on arriving are interviewed by I believe compliance officers from the Department of Immigration who investigate how they came to Australia and it is at that stage that a determination is made whether a person is allowed to apply for asylum.

MS BIOK: Commissioner, if I could just make a comparison for you. When I started doing refugee work with the Commission in the early 1990s it was practice that once a week, I think it was every Wednesday, a Legal Aid lawyer would go to Villawood Detention Centre as a duty solicitor, the same way we have a duty solicitor scheme operating in all Local Courts in New South Wales and that lawyer was there to provide advice on any legal issues related to immigration and related to broader issues and through that scheme we picked up refugees who wanted to apply, we also picked up people who had become unlawful in Australia who could make another application and we could provide a range of legal advice to people.

It was through that scheme also that children who had become unlawful in Australia and could apply for close ties visa found out about that. Now that scheme hasn't operated since the IAAAS scheme has come in. Also as my colleague mentioned under the contract with the Department for Immigration, Legal Aid commissions have to apply to be accepted as a contractor with immigration. Now the Legal Aid Commission of New South Wales and the Legal Aid Commission of Western Australia who did most of the detention work have not received that contract.

DR OZDOWSKI: Why is that so?

MS BIOK: We don't know.

DR OZDOWSKI: What about the amount of money that went earlier and to this scheme administered by the Attorney General's Department and now by the Department of Immigration, what's the difference? Is there any difference or was the money simply transferred from the federal Attorney General’s to the federal Immigration Department?

MS BIOK: I don't know but we could try and find that out for you.

MS MARTIN: Certainly now funding is provided on a case by case basis so under the contracts the contract provider is given a certain amount of money for each detainee represented. That money determines to a certain extent what kind of representation we can provide and the time we can provide the interpreting costs. It needs to cover everything and given that many of the contractors now need to make a profit from their representation it is our argument that the quality of representation is affected by the funding.

In addition in the remote detention centres contractors are having to prepare protection applications maybe three a day which would maximum give 4 hours preparation to each detainee. In the case of minors that might mean that where there's families that are being represented the protection claims that a child might have may not be covered at all and in the case of unaccompanied minors, certainly four hours is not necessarily enough to advise a child why they're in detention, what's happening to them and gain enough trust to be able to elicit any claims for protection.

DR OZDOWSKI: It is four hours of direct contact do you know?

MS MARTIN: I'm saying approximately. Legal Aid doesn't have experience in the remote detention centres. We have experience in Villawood where we have

DR OZDOWSKI: Where you can access people?

MS MARTIN: Yes, and we have more leeway, partly because Villawood is in Sydney we can travel and meet the child a number of times.

MRS SULLIVAN: What would it be in your average per case at Villawood compared with that average of four hours?

MS BIOK: Well, there was also a problem there, the process was that you would get a referral from the Department of Immigration saying would you like to take this person on as a detainee client? You then had three days in which to decide whether you wanted to take that person on, to establish what their language was and the first meeting to go out there. From the time you indicated that Legal Aid would take on this client you had three days to submit the application, the completed application to the Department of Immigration.

DR OZDOWSKI: Which all supporting the human

MS BIOK: Yes, to have

DR OZDOWSKI: Just not possible, is it?

MS BIOK: And there were plenty of situations and I have personally knowledge of where a letter has gone to the Department saying here are as many documents as I can provide, I can't get the translations for another week, could you please hold off the decisions but the decisions have been made even before the translations arrived.

MS LESNIE: Did the Department do their own translations of the documents?

MS BIOK: No.

MS LESNIE: So there were documents attached to the applications that were not considered in the decision?

MS BIOK: No, and they were then taken to the Refugee Review Tribunal when it went on appeal. But certainly in that situation where you're going backwards and forwards to Villawood, where you are dealing with two parents, often, where you have got statements to prepare and maybe an adolescent child who may have claims of their own. You don't have the time to really sit and talk to the child to build up their trust and, as Pip has indicated, it's not something you can do very quickly. Also with unaccompanied minors, it can take you three days before they are willing to tell you what they have experienced and what has made them come to Australia.

MRS SULLIVAN: So in fact there is no formal acknowledgment that the children's cases may need more time?

MS BIOK: No.

MRS SULLIVAN: And no special provisions either?

MS MARTIN: No. In addition, another problem with the IAAAS scheme is that the other rights that the child would have in terms of information about their detention, they may be applying for bridging visas, that's not covered within that scheme. Representation at the Refugee Review Tribunal is not guaranteed under that scheme. Certainly all documents need to be prepared, but having a representative with them at the Tribunal is not covered under the contract.

DR OZDOWSKI: The Minister quite often is concerned about the high costs of legal representation. When you receive that contract to represent a person, how far did your contract extend? Can you go to the High Court, all the way, or is it relatively limited?

MS MARTIN: Representation is only at the Departmental and Tribunal stage.

DR OZDOWSKI: I see.

MS BIOK: But under legal aid guidelines, under the Commonwealth guidelines, we can take on cases for judicial review.

DR OZDOWSKI: You can?

MS BIOK: Yes, and that's not only for detainees, that's for all refugees. Under specific guidelines.

DR OZDOWSKI: What percentage of detainees would go higher? Would go to the Federal Court under the guidelines?

MS BIOK: Legal Aid represents very, very few for judicial review, and, certainly since the privative clause has been implemented, virtually none. I think a lot of detainees go to the Federal Court because they realise there is something flawed in the process and they feel that there should be somebody who will actually look at their case properly. A lot of them aren't advised about what it means to go for judicial review. Again, that was something that Legal Aid did a lot work on when we had a Duty Solicitor. Similarly, now, we advise people by phone and by mail, a lot of detainees will send us their RRT rejection saying that they wish to go to the Federal Court. We will then prepare an analysis of that and contact them and explain why the Federal Court is not the appropriate option and that in fact the Federal Court cannot give them a visa to remain in Australia.

DR OZDOWSKI: Thank you. They are all the questions I have. Do you have any?

MR BITEL: Could I just make one

DR OZDOWSKI: Yes.

MS BIOK: arising from a question there. Just an issue, going back to the issue of the Minister's obligations under the Guardianship of Infants Act. It's been a matter of concern to some that where you are dealing with particularly young minors who are applicants, especially if they are unaccompanied, that who is the person who actually completes the application and signs the application on behalf of the applicant. If they have incapacity to complete the form, given their age, is it the ACM Manager, or is it indeed the Minister who completes the application on behalf of the applicant and then makes the decision?

DR OZDOWSKI: What is the current practice?

MR BITEL: I think that the current practice is that the children themselves sign the form, probably improperly and unlawfully. That's certainly something which an outside Commissioner or Guardian would have to develop proper guidelines for.

DR OZDOWSKI: Professor Thomas?

PROF THOMAS: No questions.

DR OZDOWSKI: Yes. Thank you very much for appearing here at this Inquiry. Thank you for your submissions. I now adjourn this session till 11 o'clock.

MORNING TEA

RESUMES [11.00am]

DR OZDOWSKI: So possibly now we can start and I would like to invite the Refugee Advice and Case Work Service to come forward to give evidence. Thank you, could I ask you to take an oath or affirmation.

MELISSA McADAM, affirmed [11.00am]
SOLICITOR, REFUGEE ADVICE AND CASE WORK SERVICE

ALISON RYAN, affirmed [11.00am]
CO-ORDINATOR, REFUGEE ADVICE AND CASE WORK SERVICE

DR OZDOWSKI: Thank you, now could I ask you to give your names, addresses, qualification and capacity in which you are appearing for the record.

MS RYAN: My name is Alison Ryan, I reside at [address removed], I am a solicitor and migration agent and I am here as the co-ordinator of the Refugee Advice and Case Work Service.

DR OZDOWSKI: Thank you.

MS McADAM: My name is Melissa McAdam, I am at [address removed], I am a solicitor in case work for the Refugee Advice and Case Work Service.

DR OZDOWSKI: Okay, thank you very much. Just to remind you about the privacy orders I made some time ago I am asking you not to identify asylum seekers or people working in detention centres here in the public evidence. If you would like to provide us with the name please talk to the Secretary of the Inquiry at a later stage. Now thank you very much for your submission, it is substantial, we read it and now I would like to make an opening statement. In the opening statement could you focus on your expertise in the area and on whether you have had direct contact with refugees, especially children.

MS RYAN: Okay the Refugee Advice and Case Work Service is a community legal centre that provides representation and advice to on shore asylum seekers. We do that both in the community and in detention. We provide representation to people in Villawood and all of the remote detention centres, that being Woomera, Curtin and Port Hedland. We receive funding through the IAAAS program so through the Department of Immigration and we also act on pro bono basis for applicants outside that funding.

DR OZDOWSKI: How many cases altogether do you handle per year in this category?

MS RYAN: All of the cases we handle are refugee cases and I would estimate at about 250 cases per year handled by our office.

DR OZDOWSKI: All right, substantial. Okay, would you like to make an opening statement as well or are you covered by the same?

MS McADAM: There is no need to.

DR OZDOWSKI: Okay, listen you have possibly seen the submission from the Department of Immigration to the Inquiry which makes a number of points. One of the points in the submission is that under Australian rules immigration detainees have the capacity to take proceedings before a court to determine the legality of the decision and it basically means that the children in detention can legally challenge the decision to detain them in the court of law. My question is do you know of any cases when this right was exercised by children?

MS RYAN: No, I think there are huge problems practically for children to exercise that right but there is only a limited amount of children and I take it the department is referring to making a bridging visa application so they can be released from detention

DR OZDOWSKI: They are talking generally about a legal challenge to their detention in a court of law so, dealing with all issues starting with the issue of detention.

MS RYAN: Okay well notwithstanding the fact that a child mightn't have the ability or legal knowledge or even representation to know how they could access the judicial system there are certain children that would be able to make an application for a bridging visa. Somebody that is under 18 is able to make an application for a bridging visa if they were detained after 1994, if they have an application to the department or the Refugee Review Tribunal or an application for judicial review regarding their protection visa application. So a child that is under 18 with or without their parents that is in detention and that is waiting for removal, so somebody that was being rejected by the courts or by the Tribunal did not decide to take it any further and so we have got clients that - especially Iranian children or Iraqi children that are waiting for removal for possibly three or four years and they are unable to access any - to make a bridging visa because they are ineligible to do so.

DR OZDOWSKI: So basically what you are saying that some children who were unsuccessful in applying for protection in Australia and cannot be removed to the countries from which they came may sit in Australian detention indefinitely.

MS RYAN: That is my understanding, I don't believe that they have the ability to make a bridging visa application and also for people that don't have a protection visa application on foot so children that have come into detention, unaccompanied minors or children with families that haven't made a protection visa application that they don't have a basis .....

DR OZDOWSKI: Do you know of many children spending a long time in detention when they cannot be removed?

MS RYAN: Yes, certainly.

MS McADAM: Yes, we do. They have spent so long in detention they are now no longer children. They came in as minors they are now over 18, they have been there for three or four years.

DR OZDOWSKI: What about the children who can make an application for bridging visa, how successful are you with securing this bridging visa?

MS RYAN: I would be very surprised, I think there is only extremely limited circumstances with a child who has come in with their parents has ever been granted a bridging visa. For these children there has to be a recommendation from the Department of Community Services in New South Wales but the comparative bodies throughout Australia to say that that - it is in the best interest of the child to be released from detention. And it is common through Department of Immigration decisions that the best interest of the child is not served to be separated from their parents. So the unity of the family overrides that consideration.

I think there is huge practical problems in the sense of making that application. A form to make that application is not widely available, this is for people who are non immigration cleared. It is quite difficult to co-ordinate the services of your respective community services with department to make those reports or to provide that and those services have to be requested by the Department of Immigration for the Department of Community Services or a respective service to come into the centre and make that assessment. So it is not something that the child or an advocate of the child

DR OZDOWSKI: So it means the State department doesn't have automatic rights to access children in detention?

MS RYAN: No, sorry I am unaware whether they have an automatic right to access them in detention. I know certainly there is meant to be a reporting mechanism where the department reports any unaccompanied minors to the Department of Community Services. We have incidences where we believe that reporting mechanism has broken down but I am not sure what rights of the Department of Community Services has to enter detention.

MS McADAM: I don't know either.

DR OZDOWSKI: Do you know of any cases where the Department of Community Services has signed a certification that it is in the best interest of a child to be removed from detention when parents are still staying in detention?

MS McADAM: I haven't come across that.

DR OZDOWSKI: So one could conclude that there is a consistent view of the Department of Community Services that it is in the best interest of the child to be detained with family in a detention centre.

MS McADAM: Community Services don't often get involved, it is a rare case when a detainee will go through this whole procedure to get a bridging visa. It is a very daunting process to initiate. Another problem is

MS LESNIE: Sorry, why is it so daunting to initiate?

MS McADAM: Because you have to be able to know what to do and you need to persuade the State Government body to come in and intervene and usually you have to do that through liaising with DIMIA staff as well.

MS LESNIE: Is it not part of the legal advice that an IAAAS provider would provide to detainees to initiate that process?

MS McADAM: It is rare to get an approval, it has - they are looking at the best interest of the child and for someone, a child that is detained they have to show some really extreme circumstances for DOCS to recommend or for a state child welfare body to recommend their release.

MS LESNIE: So does that mean you make the judgment not to advise your clients to apply for a bridging visa?

MS McADAM: It is standard advice we give in the beginning what the grounds for getting a bridging visa are which include that if you are under 18 there are some grounds for getting a bridging visa to be released from detention.

MS RYAN: Can I just add something on the IAAAS' contract, there is no, the contract doesn't provide for any representation as to bridging visas. So as a migration agent and a solicitor you can provide that advice to your client but there is certainly no capacity under that contract to be funded to represent someone to get a bridging visas.

MS LESNIE: So is it fair to say that as an IAAAS adviser you are not paid to follow through on a bridging visa and that furthermore in order to succeed in a bridging visas it requires the Department of Immigration itself to follow through the process so they have to ask the relevant state authorities to provide the information that would then make the application successful.

MS McADAM: Yes as a migration adviser I mean RACS does get involved and initiates some bridging visa applications but all we can do is ask DIMIA to start the process because the PAMs the procedures DIMIA follows that they have to initiate DOCS to come in generally.

MRS SULLIVAN: Can I ask a question another way, what examples are there where there is no legal representation for children and young people?

MS RYAN: I think one case that I've had recently that some unaccompanied minor child was taken from the community into detention and then the person - sorry, claimed to be an unaccompanied minor - and then was interviewed by numerous Department of Immigration people including a sex task force. Nobody else was present at those interviews besides the Department of Immigration, she was then taken to her, the Embassy of the country she came from for deportation. So that person had no access to legal representation.

Through the intervention of a third party the person wasn't removed and was referred to our service so she could get legal representation but that's an instance where an unaccompanied minor would have no access to legal representation. They need to announce a claim for protection, so they need to have prima facie obligations or the department is perceived and has a prima facie obligation under the Refugees Convention to in theory then be referred to a legal representative from the IAAAS if they are in detention and if they haven't previously put in a protection visa application.

DR OZDOWSKI: Now I would like to go to the screening process and the Department of Immigration told us that the interviews with children are conducted in non threatening setting and the children ask open ended questions which enable them to say anything they wish to say in support of their claims. They also say that they are non-adversarial, that they are conducted in a culturally sensitive manner and that interpreters are used at all times. What is your experience of the process?

MS RYAN: Firstly I would like to say that as of possibly six months ago the Department of Immigration has refused to release any entry interview documents.

DR OZDOWSKI: Did you try FOI on?

MS RYAN: They refused through FOI and refused through review of FOI and we've currently got matters in the AAT outstanding on these issues. So the comments would provide experiences of speaking with clients and then we do have records of interview prior to about six months ago.

DR OZDOWSKI: What's the reason for suddenly changing tack on this one?

MS McADAM: They quote that they are exempt under the FOI Act. Their concerns are that people are using the transcripts or the tapes of interviews to send back to people smugglers so they are denying detainees and asylum seekers the natural justice rights regarding those interviews because of that concern of theirs.

DR OZDOWSKI: Are you aware of things being sent back to people smugglers?

MS McADAM: We are not aware of that. That's not to say it doesn't happen but I have no knowledge of that.

DR OZDOWSKI: But what you are saying, it's difficult to represent your claims without access to this kind of information?

MS RYAN: Certainly but those interviews are used constantly to undermine the credibility of an applicant and it is not possible then to find out what was said in the entry interview. Entry interviews are renowned for the fact that they are conducted with people when they have just arrived off a boat or off a plane often after long travelling periods, monstrous journeys, very short interviews often, if you have a task force there will be inappropriate interpreters in the sense that one interpreter will go up for a boatload of people where they don't know, they are not quite sure of which languages are being spoken, certainly not which dialects, but you often get Iranian an interpreter interpreting for Afghans or vice versa and a common complaint is that we didn't say all of our story because the interpreter told us we've only got 15 minutes for that interview. And they do, they have huge workloads on those task forces and you have to do them very quickly and often people complain about those entry interview processes.

MS McADAM: And there appears to be no difference in the questions or the style of questioning for unaccompanied or for minors as opposed to adults, they are the same form, the same questions, the same setup and to say that asking open ended questions advantages an asylum seeker, it doesn't, it just leaves them as lost as they would be.

DR OZDOWSKI: And this first interview is then followed by another interview when they are taken to a detention centre and are waiting in separation detention or how does it work?

MS RYAN: No, sir. If somebody - they are not provided with any knowledge of ability to access legal representation or what it entails to seek protection. They need to show under the Convention why they would have a problem returning to their country. If they don't do that they don't get another interview as far as, well as far as the process theoretically works.

DR OZDOWSKI: So they would be screened out as in the language of the Department of Immigration and when they are screened out do they get a second chance? Do they have as chance to in a way bounce back?

MS RYAN: My information is no. There certainly is instances of self screening in and that's where a detainee manages to come back into the screening process after a while and that's been done by people throwing application forms over fences to lawyers when they go up to detention in other matters or the idea is that you get your review of your screening out and that's done through Canberra so you, the head of onshore protection for the senior DIMIA official; you need to somehow through the chain identify that you do have protection obligations and there is one person in Canberra that decides whether you do or you don't.

MS LESNIE: If I could just be clear. So whether or not a person engaged Australia's protection obligations is determined within the first 15 minutes of getting off a boat or a plane?

MS RYAN: I'm going to say it s a 15 or so minute interview. It could be longer than that. To my knowledge the times are not recorded on the interviews and that won't necessarily happen 15 minutes after they get off the boat. Like, there are logistical considerations. At an airport that will happen very soon after someone gets off the plane and if they don't engage the obligations, the protections obligations of Australia they could be sent back straight away, they would be turned around. If they can't be turned around they are then brought to a detention centre and I am not confident to say what time period generally screen out interviews occur with boat arrivals.

MS LESNIE: Could I also follow up when you were talking about the sort of second chance for self screening in on a second chance. I know that an IAAAS provider is given to people who are screened in initially. What about the people who are screened in on a second chance? Are they also given the opportunity to have an IAAAS provider represent them through the process?

MS McADAM: Yes.

DR OZDOWSKI: I understand correctly, at this initial interview which may be determinative for the case you can't get access to information which is provided during that initial interview but the department which has that information is using that information in legal cases. Is this correct?

MS RYAN: Yes.

DR OZDOWSKI: Now, you are an IAAAS provider. We had a number of providers in our earlier hearings who have asked to give evidence in camera because they were concerned about the continuation of the contract or they were the reasons they gave us. You decided to come and give evidence in public. Could you explain the difference?

MS RYAN: I must say that's something that I hadn't considered. I understand that yes the department would have access to what we are saying. I don't have any problem that there's anything untruthful about what is being said and that we would talk openly with the department as we do in meetings that we have with them through a number of NGO type DIMIA forums and RRT forums that we have with the department and so these issues when we can are brought up and I would be very concerned if we were to lose the contract which is always a bit tenuous on the basis of things we've said at this inquiry.

DR OZDOWSKI: Thank you. Can I ask my Assistant Commissioners to ask questions.

MRS SULLIVAN: In the contract that you have is there a time pressure on you in processing claims?

MS RYAN: Yes certainly for people in remote detention we have to interview - we had to put forward three protection visa applications per day and that could include a family unit of a number of children and parents. So certainly three. We were given a list of people that we need to process and we have to process three of those per day and often the people on that list will only be the father, when there is another four people or five people involved in that family application, so three of those per day. We could probably compare that with someone that we assist in the community where it might take us 5 or 6 hours to prepare such an application, or longer. Certainly when we do our referrals at the local Detention Centre, Villawood, where we don't have that time pressure we'd spend a good part of the day out there but certainly in remote detention task forces we have to process three per day.

MRS SULLIVAN: So in terms of this perhaps being an equity issue, ie people in Villawood get a better service, have you raised this in your full and frank discussions with DIMIA?

MS RYAN: No, I haven't personally raised that issue. I suppose we get around that by taking longer than we should. It has been raised by some providers but our ability to alter the detention contract and negotiate we've just recently had another negotiation of the community contractors really is very limited. I think the Department definitely has a very powerful position when negotiating the contractors and it's normally presented to us and then with the knowledge that amendments really can't be made to that.

MRS SULLIVAN: I'm trying to get a sense of how you feel as a professional in the service you're providing.

MS MCADAM: I mean we have experiences where we will do our utmost to provide the best service we can. So we will go to a place like Woomera and we'll stay there til after midnight to make sure we get the clients' claims as comprehensively as we can and we can explain the whole process to them as properly as we can. So we work within the restraints but they're not ideal. The tender process is extremely competitive. We think that our centre provides a very good service and that it is important for us to continue to be an IAAAS provider because we're not in there for profit but it is a competitive tendering process.

MRS SULLIVAN: Can I just pursue it a little further in terms of your clients who are children and young people and on the assumption that they might have additional concerns or you might have additional questions, can you give us a feel for how your processing of their claims differs from how you process adult claims?

MS RYAN: I think the processing children’s claims, I don't think there is a huge difference. I suppose the difference in taking a statement is - and putting their case forward to the Department is just emphasising certainly their knowledge scope. One of the huge factors when processing an application is the credibility and whether their fear is well founded and whether their story matches the relevant situation in the country. Often the applicant’s knowledge of their country is certainly limited in that respect. Also the subjective nature of their fear I think is a lot different for a child. I think the ability to reach that level of subjective fear is a lot easier and it is trying to put those elements across to the Department but in the sense of processing I think that is a major problem but there is no actual difference in the processing of a child's claim and I certainly don't see any difference in the questioning by the Department of Immigration when processing these claim as compared with adult.

MRS SULLIVAN: Would your advice to us be that they should in fact be different?

MS RYAN: Certainly with the way the interviews are conducted and the level of required knowledge on issues and probably a level of training and recognition that maybe even specific officers that would deal with children that would have specific training in dealing with children and especially for children who have often suffered from torture and trauma issues.

MRS SULLIVAN: You don't have such people within your organisation?

MS RYAN: No, we don't have specialised lawyers that have worked with the children. I notice in another submission provided by a Western Australian provider they made some very good recommendations as to the training and requirement for IAAAS providers when dealing with children.

MRS SULLIVAN: And finally, in terms of the documentation with children and young people who actually signs that documentation? Is it the young person, is it a guardian of some order? I am just trying to

MS RYAN: The guardian is the Minister so no he doesn't

MRS SULLIVAN: Which is the point of my question.

MS MCADAM: For unaccompanied minors the applicant himself will sign if an unaccompanied minor. If they have a parent the parent will sign for them.

MRS SULLIVAN: So if they're a young unaccompanied minor who may not be cognisant of the content they still sign the document?

MS MCADAM: It's all read out to them before they sign it and translated in their language through the interpreter.

DR OZDOWSKI: There are two different tradesmen in a way because on one hand you've got the parent, who is assisting the child, on the other hand you don't have a guardian who should be assisting the child before signing.

MS MCADAM: Which interview are you talking about there? Entry to field one that

DR OZDOWSKI: Entry into

MS MCADAM: Yes, the unaccompanied minor would be signing that without any independent person present.

DR OZDOWSKI: No guardian.

PROF. THOMAS: In your experience in dealing with preparing work for people, helping the people, how much confidence do you have in the integrity of the entry interview, considering claims that many of these people have been well prepared by the people smugglers and have rehearsed their story knowing exactly what to say. So what are your comments on that?

MS RYAN: Well, I'd say for the limited amount of entry interviews that I've seen of people that are screened out and I must say that I haven't seen any interviews that look like where there have been a prepared story by a people smuggler or that comes across in a very false way but I don't have a lot of confidence in that process for a number of - specific case I'm thinking about is an Iraqi asylum seeker that on reading his entry interview I thought he engaged and basically showed his protection obligations to Australia that can subsequently be screened out. I think the review of that process and the fact that it is not transparent is very problematic.

MS MCADAM: I think the officers conducting the interviews don't take into account that a lot of these asylum seekers are getting bad advice from smugglers and usually that advice means don't talk, don't say much, more than that they're rehearsing stories for the officers. We point out to the DIMIA officers that this is occurring, that the asylum seekers are being told not to talk too much at the first interview but the DIMIA officers are still using that against them, that they're not saying much. I mean there's children who put their lives into hands of the people smugglers for a long period of time and have no one to rely upon except the people smugglers to say - for their lives but the DIMIA officers seem to be ignoring that they might be acting on this bad advice. As far as rehearsing stories we do get to see their claims and there's no similarity.

MS RYAN: And the fact that there is no legal advice provided to someone or no even advice on what protection visa obligations are about to the person, I think the - and the entry interview without any advice on to what they should do, the only reference they have is what the smuggler or what another detainee has told them.

MS LESNIE: So just to summarise, in the Department's submission they state that screening interviews should take place in separation areas in order to protect the integrity of the process and what would be your view about the effect of doing that screening interview in a separate area without access to it. Does it protect the integrity or does it have another effect?

MS RYAN: I think the separation they're talking about is not so much the separation from lawyers, although that happens, it is from other detainees and from the other stories. I think that the most important part of this is that they actually get legal advice before they have that interview and especially for a child that anyone is able to have someone at that interview with them.

MS MCADAM: And having access to lawyers at that point would add to the integrity of the process. You have asylum seekers knowing what their rights are and knowing that Australia can offer them protection from the persecution that they may be suffering in their country.

DR OZDOWSKI: Just if I could come back with one question and it's a question about IAAAS contract. The contract doesn't mention children and special need for provision of specialised services for children as I understand?

MS RYAN: Generally it doesn't.

DR OZDOWSKI: It doesn't.

MS RYAN: There is provision in this most recent - sorry that doesn't involve detention. I will take that back.

DR OZDOWSKI: No, and do you know the selection criteria which were applied by the Department of Immigration and particularly I'm looking for selection criteria involving knowledge how to deal with children and so on. Does it include any kind of or selection criteria which deals with children?

MS RYAN: No, to my knowledge it doesn't. We certainly didn't have to provide information on that basis in our tendering process so I don't see how that could correlate with what is the situation.

DR OZDOWSKI: Thank you. I don't have any further questions. Would you like to make a concluding statement?

MS McADAM: Is it possible to raise an issue that might not have yet been covered?

DR OZDOWSKI: Yes, please do so.

MS McADAM: There's situations that can arise where, especially with - I have had clients, there's been a mother with children in detention for long periods, they have been found to be refugees by the Refugee Review Tribunal and they remain in detention for six months or longer following that determination that they are refugees because of security checks that are supposedly taking place in a country they have passed through, and that's when a lot of self abuse and harming is occurring with those children because they don't understand if they are found to be refugees why they are still in detention for such long periods.

MS LESNIE: Would it be possible to make a bridging visa application for a family like that?

MS McADAM: You can, but you're in the position where you don't have the information that it's going to be taking that long time. So we are expecting that they are about to get their visa, or about to be released, but it's just no visas are forthcoming so we are not quite - if we were told in the beginning that this is going to take a year or six months then, yes, we would be lodging bridging visa applications. When it gets to those long periods we start to initiate a bridging visa application. The Department often comes back to us and says, well, there's no point, that will take longer than getting their visa.

MS LESNIE: If you had lodged a bridging visa application in that case, is it your view that it would have been granted?

MS McADAM: The mothers of those children were so concerned about the ongoing and worsening conditions of the - the deteriorating conditions for their children and the fact that they were probably going to suffer permanent damage from this, the ongoing detention, that the mothers were prepared to say that they wanted their children away from them, out of detention.

MS LESNIE: But is that sufficient to found a bridging visa application? Is it not true that the State Child Protection Authority would have to certify to the effect, rather than the mother just desiring it?

MS McADAM: Yes, but because the Department will start from the fact that the children's best interests are served by staying with the parent, if you have the parent themself saying, no, my child's best interests aren't served by being kept with me, then that's a little bit more ammunition to get the bridging visa. It's not - you won't automatically get it, but it supports their application.

MS RYAN: And so with the difficulties in getting bridging visa applications, I have had unaccompanied minor children in detention that have been refused bridging visas by the Department of Immigration and that was, I believe, just simply because of a breakdown in communications with the relevant Department of Community Services and it was only once on appeal that we took that case that we were able to organise a bridging visa.

MS LESNIE: Is it not true that there are bridging visas available for people who are suffering torture and trauma?

MS RYAN: Again, they are extremely rare, that has to be certified by a Commonwealth Medical Officer and that has to be at the request of the Department of Immigration. So you can have a number of reports from psychologists or psychiatrists on the condition of someone and it has to show that they can't be cared for properly in detention - I can get the actual wording - but then the Department of Immigration has to organise for a report to be provided from someone that they deem to be appropriate to say that that person should be released from detention. I haven't ever seen a report where that has said that it's better for them to be outside of detention and, again, there is no available form to fill that in and it's at the request of the Department to continue with this process. So a request can be made for a certified Commonwealth Medical Officer to do the report, but that request can basically be ignored, which we have had a case of that as well.

MS LESNIE: So it's the jailer that has to initiate the release?

MS RYAN: Yes.

MS McADAM: We can alert the Department to the fact that we were requesting them to do so, but it's then up to them if they do initiate that, yes.

MS RYAN: Again, that won't be for someone that has either not put in a protection visa application or has finished their judicial review options. If they made their application after October '99 they have to have an ongoing application. So for the long-term detainees whose mental deterioration is quite - is very profound, they don't have any legal ability to make an application on health grounds.

DR OZDOWSKI: Any concluding words?

MS McADAM: No.

DR OZDOWSKI: No. Thank you very much to the Refugee Advice and Casework Service for presenting the evidence.

The next witness is Ms Jacqueline Everitt from Just Refugee Programs, could you please come forward. Thank you for coming forward, as you know the role of the Commission is to test evidence provided to us, I accept from the submission provided just now and we would like to ask you a few questions but before doing it I would like to ask you to take an oath or affirmation.

JACQUELINE EVERITT, affirmed [11.40am]
LAWYER, JUST REFUGEE PROGRAMS

DR OZDOWSKI: Thank you, now I would like to ask you to state your name, address, qualification and the capacity you are appearing in for the record.

MS EVERITT: My name is Jacqueline Everitt, I work from [address removed], I am trained as a lawyer and I am doing a Ph.D. on children in detention.

DR OZDOWSKI: Thank you, just before we go further I would like to ask you that you adhere to my orders regarding privacy and in particular I would like to ask you not to identify asylum seekers in public evidence and also the identity of third parties shouldn't be disclosed as quite often people are working in the detention centres and may not be able to defend themselves during the process of the Inquiry. However, if you would like to mention particular cases to us please mention to the Secretary of the Inquiry after you have finished giving evidence.

Now can I ask you to give an opening statement and in particular what I would like to ask you is to focus on your direct experience with asylum seekers and also on your professional expertise in this area.

MS EVERITT: I have been in refugee camps in other parts of the world and I have never - where the physical conditions have been much, much harsher and I have never seen the air of despair and despondency and deep depression that I have seen in Australia and in the time that I have been involved which is only a year and a half in Australia I have never seen anything that has moved me more and that's including war zones and everything else. I have not yet met a child that is happy and outgoing and thriving and developing and I have not yet met a parent who is able to deal well with their children and assist them in any kind of development and I have been to only four of the count I have been to Port Hedland, Woomera and Villawood - no, that's three.

My colleague Naleya Everson is actually in Curtin at the moment and that is going to be a really, I think what she is doing is going to be really important because she has made DCD notifications of all of the children, she spoke to every parent in Curtin and has taken statements about the condition of every child in Curtin and we are going to be working with a medical alliance to assess all these children, their medical and their psychological health

DR OZDOWSKI: You will be trying to involve State authorities, no?

MS EVERITT: Well she has already reported them to DCD, the Department of Community Development and her actual notifications are in that file and DCD I understand has been in and has assessed the children. We haven't yet got copies of those assessments but we are FOI-ing while she is there so we will have them quite soon and that is going to be a very important separate research project which we are doing on the basis of medicine and law it is a sort of dual thing.

But we have also made DOCS notifications of the children in Villawood, I think I made the notifications in January. I didn't realise we could do this and suddenly I did it and the DOCS assessments and recommendations are in there with the names blacked out and I think I am correct in saying that DOCS recommended that every child we notified be out of detention and need to be with the parents.

DR OZDOWSKI: Why it is so late, it looks like an obvious strategy and I didn't see it happening much earlier and I spoke to a number of state departments and they said to me that if children in the broader community were kept in similar conditions as in detention the children would need to be looked after, provided care and so on? Why didn’t State Governments do anything in this area earlier?

MS EVERITT: If you are asking me why they didn't, I have no understanding of why they didn't but what also surprised me is that I and other people working in this area didn't think of making the notifications earlier. What I have found extraordinary in this whole thing is that on 1 August - I met a little boy last year in June who was quite clearly dying in detention and I wrote a story in the Herald in August and I expected, I expected the world to come out and say this is appalling and it was published in the Sydney Morning Herald and not a single body came out and said this is a terrible situation and has to be changed. No State, no government, no - the only person who spoke was Phillip Ruddock and said that it is all nonsense or words to that effect.

I'm sorry, that is probably not exactly what he said but he refuted the claims and so when facts like that are put in front of you if you are State Government, surely they should have taken the initiative then. Okay so it took me another six or seven month to think maybe I can make a notification, I'm surprised that the doctors didn't make notifications, I'm surprised that the teacher, teachers in the detention - I think nobody knew they could because I think everybody thought this whole system is something so removed from mainstream Australia legally and in every other way that people have just let it exist the way it is. But they are not now, but now there is hardly anyone there.

DR OZDOWSKI: Coming back to your statements about your visits to detention centres, could you let us know how long you spent in the three detention centres and how many kids you met there?

MS EVERITT: Yes, well I'm actually banned from detention centres now so I haven't been in for some months. Villawood I probably used to visit maybe three times a week and I knew all the children there. I made DOCS notifications I think it was on 11 children or maybe 16 I can't remember because there aren't many children there. Some of them are just transient and you don't get to know them very much, they are moved on, they are just about to be deported because that is what you know Villawood is for.

In Woomera, Woomera was very difficult to visit even as a lawyer it was very difficult and I only spent one day in Woomera but I had a copy of a list of all the people who had come in to Woomera in a three month period that somehow had got to me and on that list were 21 unaccompanied children. My colleague Naleya who is in Curtin now, she went to Woomera first with this list and requested that she see a number of the unaccompanied children on the list. There was a 10 year old, an 11 year old, two 12 year olds and a 15 year old. They were the ones we specifically asked to see. She didn't see them but she saw other people and then the following week when I went to Woomera I did actually see these children and I probably, all up I probably saw about 14 children, no maybe 16 or 18 in Woomera

DR OZDOWSKI: They were your legal clients or no, it was part of a research?

MS EVERITT: No, no I was taking these stories as part of the Woomera lawyers but they weren't my specific clients. What probably was the most striking about the unaccompanied children was their complete silence and their complete compliance. You have all been to Woomera and it is not a very welcoming place and the guards, the people who are running the place are very separate, they haven't established any kind of rapport with anyone. In Villawood some of them have. So the children were brought in and they were left to sit and I didn't actually find them for hours, they sat for hours and then I sort of stumbled over all these kids just sitting alone in a waiting you know a little room and three of them came in to talk to me.

One was a brother and a sister and although their story is not the worst story I know it is one of the saddest and because we had found out about these children before I actually got there we had asked Barney Cooney to ask some questions in parliament about them. We had also heard on the grapevine that they were screened out but we didn't know that either and because the Minister is the guardian of the unaccompanied children obviously he keeps their lives very private and that is quite acceptable but we did want to know that they were okay. So Barney asked the question and this is actually significant, Barney asked the question in parliament and that was about three weeks before I got there or maybe four weeks. So then I saw these children, it turned out that they had been screened out for six and a half months until Barney asked the question.

DR OZDOWSKI: So they were screened out and still sitting in detention six months later?

MS EVERITT: They were screened out and they didn't know why and when I started speaking with the older one, the sister sort of taking down all the information where they came from, what was their story all the rest of it they were orphans, their mother had died a long time earlier their father had been taken by the Taliban and the grandparents panicked, went to the people smugglers and said take the children to a safe place. They had no idea where they were going, they were kept in rooms, their whole trip here was pretty appalling.

They didn't know what countries they were in at any stage, they didn't know what country they had come to. So then they had one interview, they spoke with one person but they didn't consider that an interview and then they were in a room of their own the brother and sister and every morning the sister would make sure her brother got dressed, they were wearing traditional Afghan clothes both of them and she had a hand embroidered shawl. I mean it's all really poignant, pretty awful stuff when you are sitting there and you are looking at these people and they would dress and she would take a chair outside and they would sit and they would wait for something to happen. They didn't know what was happening, they didn't ask anyone. There were no classes for them

DR OZDOWSKI: What do you mean there were no classes for them?

MS EVERITT: No school classes.

DR OZDOWSKI: How old were they?

MS EVERITT: The little one was 11, the boy, and the girl was 15.

DR OZDOWSKI: And there were no activities provided?

DR OZDOWSKI: What do you mean there were no classes?

MS EVERITT: No school classes.

DR OZDOWSKI: How old were they?

MS EVERITT: The little one was 11, the boy, and the girl was 15.

DR OZDOWSKI: 15, and there was no activities provided for them?

MS EVERITT: No, well, not as far as she knew. I asked her if she'd seen a counsellor or a doctor, had she needed a doctor since she'd been there, she said, no, I said, have you seen a counsellor, no, have you spoken to anyone, no, I didn't know that there was anyone here that we could speak to. They didn't know anything. They hadn't had a lawyer. I haven't got my notes, but they're there. Then the worst thing was they'd heard when SIEV X went down, they'd heard of that through the buzz in the general area and they thought their grandparents would be on the boat because the grandparents had said we'll come and we'll look after you as soon as we can.

So by this time she was absolutely sobbing and I stood up and I've a 15 year old daughter, and I put my arms around her and she was just absolutely racked with sobs and the little boy is just sitting there and then I didn't know what to do and I got a social worker to come and sort of help us deal with her because she was sort of really unable to speak any more. Those kids were the first kids that were got out. I handed it all over to the Woomera lawyers after I'd spoken with them. The boys seem to be worse. The boys were more withdrawn, but the boys could play soccer. She couldn't play soccer.

The only other girls that were in there were Iraqi and they couldn't - she could see people in the beginning but then after they were back in the system, she couldn't speak with them anyway because they had no common language. Her worst feelings were that they had no-one to help them in any way. Obviously an Afghan girl brought up in Taliban Afghanistan is not going to be very assertive about getting help or anything else, so they were just there in this terrible limbo with no-one looking after them in any way.

The boy - I have no experience for saying this, except that I have seven children of my own, the boy was very depressed and the other three little boys we also saw, the same story, very, very depressed, very withdrawn, very inarticulate. One of them had speaking problems and they were pretty bewildered, confused and frightened.

DR OZDOWSKI: Can I ask you, going one step back, what's the procedure of getting access to children if they are not your clients, what do you need to do in order to get access to them?

MS EVERITT: Well, in my case, because I went with the Woomera lawyers, they applied for access to these children to give them legal representation for other issues, not immigration issues, because that was the tender system with RACS and the other groups who do that. The brief of the Woomera lawyers at that stage, and I'm sure that they could give you much more information, was to deal with any issues that weren't immigration issues.

DR OZDOWSKI: How easy is it to get access for lawyers or social workers to children in detention?

MS EVERITT: Completely impossible and this was one really freaky moment and I don't know how it happened because it's never happened again or since. They signed forms to ask the Woomera lawyers to be their lawyers so after that it was okay, but that was only these five kids. Now, we knew there were 21 unaccompanied children who had arrived in Woomera just in that particular period but, as far as I know, they were never able to get access to those children, just these five.

DR OZDOWSKI: We heard from evidence provided by immigration officials that more or less access for visitors is free to detention centres and I see you are giving us a different switch on that.

MS EVERITT: Well, free access, we had to arrive at 8.30 in the morning, and we actually got there at 25 to nine and they said, bad luck, you're late, you'll have to go. We can't possibly accommodate you now, it's far too late and so then we ended up spending two or

DR OZDOWSKI: You are talking about Woomera, yes?

MS EVERITT: Yes.

DR OZDOWSKI: And it was the time when there were no riots, no hunger strike, it was quiet days, so to say.

MS EVERITT: I'm trying to think exactly when it was, it was last year, I think, November. Yes, it was a perfectly quiet time. There had been nothing happening in an immediate time before, and there was nothing that happened afterwards. Yes, it was, yes that would have been about when it was, November, December. It took, everything took so long to do. I mean we had to take our own food. There was a team of about 12 or 14 of us or maybe more interpreters, lawyers, paralegals, social workers, psychologists, a whole lot of people.

Nobody ever expected to get access to these children, that was a completely amazing thing and, you know, I understand there are reasons for privacy for children. I do understand that and because we can't find anything out about the children, because you can't request information even not knowing their names or anything about them, you can't find out anything that's happening. It was sheer fluke that this piece of paper came into

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Transcript of Hearing - SYDNEY

TUESDAY 15 JULY 2002

Please note: This is an edited transcript

DR SEV OZDOWSKI, Human Rights Commissioner

MRS ROBIN SULLIVAN, Queensland Children's Commissioner

PROFESSOR TRANG THOMAS, Professor of Psychology, Melbourne Institute of Technology

MS VANESSA LESNIE, Secretary to the Inquiry

DAVID BITEL, sworn [9.47am]
INTERNATIONAL COMMISSION OF JURISTS

ELIZABETH BIOK, affirmed [9.47am]
INTERNATIONAL COMMISSION OF JURISTS and
LEGAL AID COMMISSION OF NEW SOUTH WALES

PHILIPPA MARTIN, affirmed [10.27am]
LEGAL AID COMMISSON OF NEW SOUTH WALES

MORNING TEA

RESUMES [11.00am]

MELISSA McADAM, affirmed [11.00am]
SOLICITOR, REFUGEE ADVICE AND CASE WORK SERVICE

ALISON RYAN, affirmed [11.00am]
CO-ORDINATOR, REFUGEE ADVICE AND CASE WORK SERVICE

JACQUELINE EVERITT, affirmed [11.40am]
LAWYER, JUST REFUGEE PROGRAMS

Site navigation

Human Rights navigation

Transcript of Hearing - SYDNEY

TUESDAY 15 JULY 2002

Please note: This is an edited transcript

DR SEV OZDOWSKI, Human Rights Commissioner

MRS ROBIN SULLIVAN, Queensland Children's Commissioner

PROFESSOR TRANG THOMAS, Professor of Psychology, Melbourne Institute of Technology

MS VANESSA LESNIE, Secretary to the Inquiry

DAVID BITEL, sworn [9.47am] INTERNATIONAL COMMISSION OF JURISTS

ELIZABETH BIOK, affirmed [9.47am] INTERNATIONAL COMMISSION OF JURISTS and LEGAL AID COMMISSION OF NEW SOUTH WALES

PHILIPPA MARTIN, affirmed [10.27am] LEGAL AID COMMISSON OF NEW SOUTH WALES

MORNING TEA

RESUMES [11.00am]

MELISSA McADAM, affirmed [11.00am] SOLICITOR, REFUGEE ADVICE AND CASE WORK SERVICE

ALISON RYAN, affirmed [11.00am] CO-ORDINATOR, REFUGEE ADVICE AND CASE WORK SERVICE

JACQUELINE EVERITT, affirmed [11.40am] LAWYER, JUST REFUGEE PROGRAMS

DAVID BITEL, sworn [9.47am]
INTERNATIONAL COMMISSION OF JURISTS

ELIZABETH BIOK, affirmed [9.47am]
INTERNATIONAL COMMISSION OF JURISTS and
LEGAL AID COMMISSION OF NEW SOUTH WALES

PHILIPPA MARTIN, affirmed [10.27am]
LEGAL AID COMMISSON OF NEW SOUTH WALES

MELISSA McADAM, affirmed [11.00am]
SOLICITOR, REFUGEE ADVICE AND CASE WORK SERVICE

ALISON RYAN, affirmed [11.00am]
CO-ORDINATOR, REFUGEE ADVICE AND CASE WORK SERVICE

JACQUELINE EVERITT, affirmed [11.40am]
LAWYER, JUST REFUGEE PROGRAMS