HREOC Report No. 17: Appendices

Report of an inquiry into a complaint by the Asylum Seekers Centre concerning changes to the Asylum Seekers Assistance Scheme

HREOC Report No. 17

Appendices

APPENDIX A
Functions of the human rights and equal opportunity commission in relation to human rights

APPENDIX B
Case studies provided by the centre in letter of 23 May 1997

APPENDIX C
Case studies provided by the arc in letter of April 1998

APPENDIX D
Case studies provided by the centre in letter of 11 March 1998

APPENDIX E
Summary of statistical material contained in preliminary report

APPENDIX F
A: Relevant provisions of the convention on the rights of the child 45 B: Relevant provisions of the international covenant on civil and political rights
C: Relevant provisions of the international covenant on economic, social and cultural rights
D: Relevant provisions of the 1951 convention relating to the status of refugees

Please note: If you require the tables included in this document in a more accessible format please email:webfeedback@humanrights.gov.au

APPENDIX A

Functions of the Human Rights and Equal Opportunity Commission in relation to human rights
The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, s.11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f) of the HREOC Act states:

(1) The functions of the Commission are:

(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i) where the Commission considers it appropriate to do so?to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement?to report to the Minister in relation to the inquiry.

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in s.11(1)(f) of the HREOC Act upon the Attorney?General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (s.20(1) of the HREOC Act).

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in s.l0A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission shall not furnish a report to the Attorney?General until it has given the respondent to the complaint an opportunity to make written or oral submissions in relation to the complaint (s.27 of the HREOC Act).

If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (s.29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or a continuation of the practice, the payment of compensation or any other action to remedy or reduce the loss or damage suffered as a result of the breach of a person's human rights (s. 29(2)(b) and (c) of the HREOC Act).

If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney?General, the Commission is to include in the report particulars of any recommendations made in the notice (s.29(2)(d)) of the HREOC Act) and details of any actions that the person is taking as a result of the findings and recommendations of the Commission (s.29(2)(e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with s.46 of the HREOC Act.

It should be noted that the Commission has a discretion to cease inquiry into an act or practice in certain circumstances (s.20(2) of the HREOC Act), including where the subject matter of the complaint has already been adequately dealt with by the Commission (s.20(2)(c)(v) of the HREOC Act).

APPENDIX B

Case studies provided by the centre in letter of 23 May 1997

Case Study 1

"A couple with a newborn child had been receiving ASA benefits. They had already been interviewed by a member of the RRT when benefits were cut off on 1 October 1996. In early 1997, the RRT recognised the refugee claims of the family and overturned the decision made by DIMA. It was another month before health and police checks were completed and the family gained permanent residence and thus access to some government support. In the six months that the family had to survive without any government assistance, the father worked long hours at low pay, to help support his wife and child. Even with this income, the parents had to do without basic necessities in order to adequately care for their baby. The physical and mental health of the parents deteriorated visibly over the months of waiting, particularly that of the father, putting great stress on the family. The father would not take time off work even for urgent medical treatment because he feared losing his casual job."

Case Study 2

"A man from a country notorious for fierce civil war and human rights abuses arrived in Australia in March 1997. Despite his good command of the English language and a professional background, it took him two weeks to find out how to access legal assistance and lodge his application for a protection visa. Since his arrival in Australia he has been living in emergency accommodation for homeless men. He quickly used up most of the money he brought with him paying to stay in one homeless shelter. He was subsequently able to stay in another homeless shelter on the condition that he contribute to expenses when he could. Still in that shelter, he has a roof over his head and food each day, but this inappropriate form of accommodation is exacerbating stress related problems that he has been experiencing. He is currently receiving weekly counselling at STARTTS (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors). DIMA recently rejected his application without waiting for material that they knew was being sent to support the claims made on the application form. Even without the supporting material, the claims on the form called for greater examination of the case than the DIMA case officer gave it. The client, who according to legal advisers with much experience in refugee matters, has strong refugee claims, must now survive while waiting for the RRT to decide his case. Now that his original visa has expired and he has lodged a protection visa application, he has a bridging visa with permission to work, but he has not yet found employment."

APPENDIX C

Case studies provided by the ARC in letter of April 1998

Case Study 3

"A single mother with five children under the age of 13 was deemed ineligible for further assistance through ASAS on 1 October, 1996 because her case was before the Refugee Review Tribunal (RRT). This family had been dependant on ASAS for 18 months. Following the withdrawal of assistance, the mother found casual employment. To do so, she withdrew her oldest child (age 12) from school, that lie might look after the younger children, including a baby. This situation was brought to the attention of the NSW Department of Community Services and the mother was forced to give up her job, return her son to school and tend for the children. The family then became dependant on handouts from various charitable organisations."

Case Study 4

"A single mother with three children (aged 4, 7 and 11) plus her mother and brother (aged 16), were determined to be ineligible for ASAS on 1 October 1996 because their case was before the RRT. Their case was subsequently approved by the RRT in late 1996 and their Protection Visas issued in January, 1997. Between the date of their final ASAS payment (18 September, 1996) and the issuance of their Protection Visas, this family was supported in part by donations from charitable organisations. Their rent however, was in part paid for by way of enforced sexual favours sought from the principal applicant."

Case Study 5

"Eight year old child with her parents who have applied for protection visa. Primary decision has been made, and the family is waiting for a decision on an RRT appeal. The child's parents have been unable to find work, and are not eligible for income support from ASAS or Social Security. The child has kidney problems and the mother has not had treatment for her gastric problems and anaemia due to inadequate finances. Community and family sources of assistance with accommodation and private financial resources have been exhausted, so that the family faces the probability of homelessness. If this occurs, they may be fortunate enough to be able to live in one room of someone else's house with loss of privacy and the strain on the host family that would accompany this."

Case Study 6

"Family consisting of grandparents, parents and children, with two PV applications before the RRT. The parents have permission to work but have been unable to secure employment. The grandparents do not have permission to work, are ineligible for Medicare and therefore also ineligible for the Prescription Benefit Scheme (PBS). The family is presently being supported by the St. Vincent de Paul Society and the Australian Red Cross who provide $160.00 per month for prescription medications required by the grandparents, who both have failing health. This family is a significant drain on the resources of three charitable organisations (past nine months) and will remain so until their case is finalised."

Case Study 7

"Single male who arrived in Australia with false documentation. He had no permission to work (due to the 45 day rule) and was not eligible for ASAS as his case has not been before the Department for six months. This man slept on the floor of the house of an acquaintance, and was required to leave the house each morning and return at night. He was not fed by the occupants of the house. Australian Red Cross provided the man with $30.00 per week for food and personal expenses. He did not meet the amended guidelines of the 1995/96 ASAS Agreement for an exemption to the eligibility criteria as there was no 'unforeseen change in circumstances' since his arrival in Australia. He is currently seeking a review of the primary decision."

Case Study 8

"Family consisting, of husband, wife and four year old child, came to the attention of the Red Cross in July 1997. They had exhausted those funds which they had brought into Australia and were without accommodation. At the time of Red Cross intervention they were preparing to sleep on the street. They were referred to the NSW Department of Housing where provision was made for firstly, five nights emergency accommodation and then six months accommodation under the Temporary Emergency Accommodation provision. The family would not have qualified for an exemption to the six-month waiting criteria as they had not had an unforeseen change of circumstance since their arrival in Australia. This family received emergency assistance from Red Cross ($50.00 per week for food, utilities and rent for the NSW Department of Housing which was $5.00 per week). They also received assistance from; Foodbank, International Teams and the St.Vincent de Paul Society."

Case Study 9

"Single male, whose primary decision was made within six months and is now seeking a review of the decision at the RRT. He has no permission to work (lodged Protection Visa application after 45 days) and is therefore ineligible for Medicare. He is a resident at an inner city men's refuge where he is unable to pay for his board. He receives $30.00 per week from the Red Cross for personal items and medication for his ongoing medical condition (asthma). The RRT has not been asked to expedite this case as the applicant is not considered to be in the highest risk category. He will continue to be dependant on charitable welfare until his case is finalised."

APPENDIX D

Case studies provided by the centre in letter of 11 March 1998

Case Study 10

"A young woman arrived in Australia with her husband and two small children. She had fled from her homeland, a country in which a long running civil war has caused much death and displacement and continues to do so. The family arrived in August 1996 and lodged an application for a protection visa in the same month. The needs of this family were so obvious and extensive that the family was exempted from the six month waiting period for assistance under the ASA scheme while their case was with DIMA. The application was rejected by DIMA in early 1997, and the family then appealed to the RRT. Once DIMA rejected the case, ASAS benefits ceased, because by then assistance under the ASA scheme was no longer available for asylum seekers with cases at the RRT. Even while the family was receiving ASA benefits, they required assistance from non-government agencies. Once ASA benefits stopped, the assistance required went well beyond what charitable agencies could provide. In particular, the wife and children have had ongoing needs that agencies have not been able to adequately meet, even though more than ten different agencies have been assisting in different ways: rent assistance, food assistance, legal assistance, health care, trauma counselling, child care and assistance with paying bills. Due to lack of resources, some agencies have had to bring to an end even the limited assistance they have been able to give. This case was still not finalised in early 1998."

Case Study 11

"A family of four mother, father and two children of primary school age arrived in Australia in early 1997. They had fled from a country suffering a decades long civil conflict that has produced massive numbers of refugees. The family lodged a refugee application in April 1997. Because they arrived with false papers, the bridging visas that the parents were given did not initially include permission to work. They applied to DIMA for permission to work, but DIMA did not grant such permission until July 1997. From the time of arrival, the family required substantial assistance with accommodation, food and medical care. As their case was still undecided by DIMA after six months, they became eligible for assistance under the ASA scheme in late 1997 and received such assistance until DIMA rejected their protection visa application, at which point they lodged an appeal to the RRT. Even while they received ASAS benefits, they required help from charitable organisations. The amount of assistance required before they became eligible for assistance under the ASA scheme and once they stopped receiving ASAS benefits was very substantial. This family has received ongoing assistance from several charitable agencies as well as an ethnic community group to supplement income from some limited casual employment. They have been unable to survive without such assistance, but it is uncertain how long agencies will be able to help."

Case Study 12

"A family group consisting of a husband and wife, their young child and the man's elderly mother and father arrived in Australia in March 1997. They had fled a country racked by civil war. The wife was several months pregnant when they arrived and required medical care before, during and after the birth of the couple's child. The husband's mother suffers from a chronic illness and has required ongoing medical care as has the husband's father. The husband himself required medical assistance for stress related problems. The family has also had substantial needs with respect to food, housing and basic living expenses. The family lodged a refugee application in June 1997. They also lodged applications for permission to work. After much advocacy from concerned agencies, the husband and wife were granted permission to work, but the husband's parents were not, and therefore have not been eligible for Medicare. DIMA rejected the protection visa application in late 1997, and the family lodged an appeal to the RRT. Recently, the RRT overturned DIMA's rejection of this case. At no stage did this refugee family qualify for assistance under the current ASA scheme. Clearly they would have been eligible under the scheme operating prior to October 1996. One charitable agency managed to organise essential surgery for the husband's mother as well as health care assistance for various members of the family. Other agencies have been helping with accommodation, food and other essentials. As with other cases, assisting this family has put great strain on the stretched resources of charitable agencies. Such agencies have been able to help, but not adequately.

As a result, the stresses and strains of trying to survive have taken their toll on family members."

APPENDIX E

Summary of statistical material contained in preliminary report at TABLE 1

Recipients of ASA benefits July 1996 to October 1997
Month "Cases" receiving ASA "Cases" receiving ASA based on exemption from 6 month waiting period (% of total cases) Total "PV applicants" receiving ASA PV applicants under 18 receiving assistance (% of total applicants)

Table 1

TABLE 2
Lodgement and determination of protection visa applications October 1995 to September 1997
Month PVapplicationslodged Total PVapplicationsdetermined PV applicationsgranted(% of total) PVapplicationsrejected Averageprocessingtime (days)

Table 2

TABLE 3
Lodgement and determination of RRT applications October 1995
to March 1998
Month Total RRTapplicationsreceived Total RRTapplicationsdecided (finalised) Primary decisionset aside (% oftotal decided) Primarydecisionaffirmed Averageprocessing time (days)

Table 3

TABLE 4
Lodgement and determination of RRT applications demonstrating hardship - October 1995 to March 1998
Month Total RRTapplicationsreceived Hardship casesreceived (% oftotal RRTapplications) Totalhardshipcasesdecided(finalised) Primarydecision setaside (% of total hardship cases) Primarydecisionaffirmed Averageprocessingtime(days)

Table 4

Table 5

Table 6

APPENDIX F

A: RELEVANT PROVISIONS OF THE CONVENTION ON THE RIGHTS OF THE CHILD

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; and
(f) To develop preventive health care, guidance for parents and family planning education and services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries."

B: RELEVANT PROVISIONS OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

C: RELEVANT PROVISIONS OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

Article 11

1. States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; and
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Article 12

1. States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

D: RELEVANT PROVISIONS OF THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES

Article 21

As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

Article 23

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

Article 24

1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters;

(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women's work and the work of young persons, and the enjoyment of the benefits of collective bargaining;

(b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;
(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfill the contribution conditions prescribed for the award of a
normal pension.

2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.

3. The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question.

4. The Contracting States will give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non- contracting States.