Commission Website: National Inquiry into Children in Immigration Detention


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Submission to National Inquiry into Children in Immigration Detention from

World Vision Australia


Introduction

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

Recommendations

Length of detention

The issue of separation from family

Alternatives to detention

The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention

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

Critical importance of children's participation in decisions

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


Introduction

As a major Australian humanitarian aid agency and one with a longstanding commitment to advocacy on children's rights around the world, World Vision Australia is very concerned about the immediate and long-term effects on children who are currently being detained in prison-like conditions in immigration detention.

World Vision Australia fears that the current practice of detaining children could violate the UN Convention on the Rights of the Child, the most widely ratified Convention in the world. In addition, World Vision Australia does not advocate separation of families, and believes that separation of child asylum seekers from their families should only ever be as a last resort.

World Vision has worked for nearly thirty years with refugees in many parts of the world, starting with our work in the 1970s with VietNamese boat people through 'Operation Sea Sweep'. WV currently works with refugees in Indonesia (West Timor and Maluku Islands), Democratic Republic of Congo, Afghanistan, Israel/Palestine, Sierra Leone, Liberia, and many other parts of Africa, Asia and Latin America. World Vision's work with refugee and internally displaced children (including unaccompanied minors) has included provision of direct care (e.g. clothing, food, health care, education, shelter), and special provision such as trauma recovery counselling for children who have been psychologically or emotionally damaged by traumatic experiences.

Our experience from this work leads us to be concerned for the safety, well being and future security of all refugees, especially children; our concern has not been constrained by whether they have had the opportunity to apply for refugee status at overseas diplomatic posts or have ventured to enter the country without it.

World Vision acts as an advocate for children's rights in the international arena, both as an individual NGO and as part of coalitions including NGO committees to the UN.

World Vision Australia promotes peace, justice, freedom and opportunity for all. We seek to challenge Australians' vision of their place in the world - in particular, of the important role they can play in solving poverty [1] and to help Australians continue to nurture a compassionate and courageous outlook in the face of problems facing our rapidly-changing world. The issue of asylum seekers has been reported in such a way as to provoke fear and defensiveness among the Australian people, traditionally known for their courage.

World Vision Australia unequivocally recognises and supports the right of Australia to determine immigration and refugee policies that are appropriate for our national circumstances. These policies should reflect both our obligation to offer sanctuary and support to the less fortunate, and our responsibility to maintain a stable environment for our people. Australia has a proud history of balancing these two goals effectively, building a strong and secure nation while at the same time offering a home to more refugees proportionate to population than most other countries of final destination for refugees. World Vision Australia acknowledges difficulties governments have in identification of nationality, but is concerned that this fine tradition be protected and maintained.

According to UNHCR, 'Children, whether accompanied by parents or on their own, account for as many as half of all asylum seekers in the industrialised world.' [2] In Australia, children number 13.3% (365 [3] ) of the 2736 [4] people currently being held in detention. Several thousand children have been held in immigration detention in Australia since 1999. [5]

Child asylum seekers, and children of asylum seekers, have already experienced dislocation from their own countries, and in most cases dislocation from their original communities; most have experienced conflict or socio-economic turmoil. Australia as a compassionate nation should ensure that we do not add to their trauma.

Against this background, World Vision Australia believes it has some expertise to briefly address Terms of Reference 2, 3, 5 and 6.

The UN Convention on the Rights of the Child (CRC) is universal and non-derogable - that is, its provisions can never be set aside under any circumstances. The CRC provides the strongest protection for children of any legal instrument, and should be taken alongside the 1951 Refugee Convention to determine a government's response to children seeking status as refugees.

As stated in the HREOC Background Paper 1 [6] , the CRC has four major undergirding principles, which guide interpretation of the Convention as a whole:

  • the best interests of the child
  • non-discrimination
  • participation
  • survival and development

In responding to the Terms of Reference, WVA draws particularly on the principles of 'the best interests of the child', and 'participation':

CRC 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.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

TOR 2:The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention

Comments on mandatory detention

In the absence of reasonable opportunities for public scrutiny of conditions under which children are being detained, due partly to the remoteness of detention centres (in both Australia and Pacific Island nations) and partly due to lack of access for independent monitors including UNHCR, World Vision Australia fears that the current practice of detaining children could violate the UN Convention on the Rights of the Child, the most widely-ratified Convention in the world, and by which Australia has also agreed to be bound.

We note also that the UNHCR Guidelines on Refugee Children holds that minors who are asylum seekers should not be detained. [7]

Article 37 of the CRC rules that children should be detained only as a last resort, whereas Australia has been using mandatory detention as a first resort.

CRC Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action.

In contravention of Article 40.2 (a), children are being held in detention who have broken no international law. However there is a conflict between international and Australia's national laws in this matter.

Furthermore, mandatory detention implies that those, including children, seeking asylum are not refugees - whereas the overwhelming evidence is to the contrary: the majority are found, when eventually processed, to be deserving of refugee status.

Assuming that asylum seekers are not refugees can contravene protections guaranteed by the 1951 Refugee Convention. The practice also violates the fundamental legal principle of 'innocent until proven guilty', also included in Article 40.2 (b, i):

CRC Article 40
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
2. To this end and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

Detention conditions

Provisions for all children seeking refugee status must comply with all rights set out in the CRC. Special clauses relevant here include Article 37 (c) and (d), shown on page 3 above, and Article 22:

CRC Article 22
1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.

Prison-like conditions are inappropriate for any human beings who have not committed a crime. Even for children who come under the juvenile justice system (which child asylum seekers do not), the CRC places limitations on the conditions under which children can be detained. Prison-like conditions in the desert heat are particularly inappropriate and inhumane, and especially for children.

The CRC affirms children's right to appropriate education and to play, and to environments conducive to their normal development. [8]

Recommendations:

  • That child asylum seekers or children of asylum seekers never be held in detention that resembles penal detention.
  • That the suitability of key current locations for processing of asylum seekers be examined, with regard to the mental and physical problems many refugee children are already experiencing by the time they complete long and hazardous journeys.

Length of detention

Article 37 of the CRC also states that children, if there is no alternative to detention, be detained only for the shortest possible periods of time. The UNHCR Guidelines on Protection and Care (of Refugee Children) echoes this: 'Because detention can be very harmful to refugee children, it must be used as a measure of last resort and for the shortest appropriate period of time.' [9]

Delays in processing their applications for asylum mean that children have been kept in detention for long periods - often many months and in some cases years. The detention of some children has been prolonged even further with the change of government in Afghanistan and the need to await that government's establishment of procedures.

We note the Australian Government's claim that 'All efforts are made to ensure detention of children is a last resort and for the shortest possible period', [10] that '80% of all asylum claims are resolved within 18 weeks', the apparently increasing practice of allowing children to attend local schools and recreational activities outside the detention centres [11], and the experimental release of girls, boys aged 12 and under, and women from the Woomera Detention Centre. [12]

Recommendations:

  • That the Government take steps to speed up processing times for asylum seekers, to avoid compounding the distress and deprivation experienced by those separated for long periods from community life and support systems. Review and if necessary augment support services to those in processing within centres, to ensure optimum health, safety and well-being of centre residents who await outcomes.
  • That the Government facilitate public discussion following its assessment of the success or failures of the Woomera Alternative Detention Arrangements.

The issue of separation from family

Unaccompanied children require special care and support from States Parties to the CRC, as specified in Article 20 and as the Government itself acknowledges. [13]

Article 20
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

UNHCR and other governments, such as the United States [14], have developed detailed guidelines for dealing with children among asylum seekers.

The overwhelming majority of children currently in detention in Australia are accompanied by family members.[15] As the Government acknowledges and as

provided in the CRC, the best place for children is with their parents and/or siblings, except in clear cases of family abuse of children.

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Recommendations:

  • That the Government develop and implement more detailed guidelines to ensure that such children's rights are fully and unconditionally affirmed, in line with the UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum. [16]
  • That families with children who arrive as asylum seekers be permitted, after initial security clearance, to live as a family unit in the community. In World Vision Australia's view, only if the above is not acceptable, and only if the child and family are agreeable, the second best option would be for the child(ren) and one parent to be in the community, while the other parent remains in detention - provided there is regular access and private family time provided.

World Vision Australia does not advocate separation of families; such separation should only ever be as a last resort.

Alternatives to detention

The Committee on the Rights of the Child has emphasised the importance of States finding alternatives to the detention of children.[17] While World Vision Australia does not advocate a specific alternative model, it is clear that numerous alternatives have been proposed or implemented by civil society groups, and by governments including the Canadian [18] and the Swedish governments. [19] While any one model may not have all the answers, World Vision Australia believes that there is considerable scope for creative alternatives to the system that Australia has been using, that will be in line with humanitarian values and human rights.

Recommendations:

  • That the Government consider the positive role that community groups, such as churches and other faith-based entities, could have in supporting asylum seekers, and provide such groups with adequate resources and guidelines to carry out such a support role effectively.
  • That any alternative entail basic welfare support by the Government; noting that on-shore asylum seekers are without government-funded benefits, are not permitted to work to support themselves and their children not permitted to attend school, pending the review of their asylum claims, a situation that compels them to rely completely on 'charity' (community and church support).
  • That the Government explore, in consultation with the community and civil society groups, alternative models to detention developed with the Australian context in mind. The Government could draw upon the model of the Integrated Humanitarian Settlement Strategy (IHSS), wherein community groups are supported to assist recognised refugees to settle in the community, to apply to asylum seekers.

TOR 3:
The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention

TOR 5:
The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children

World Vision Australia notes the Australian Government's claim that it takes its "duty of care to all detainees, especially children, very seriously", and that it is aware of the best interests of the child. [20]

Critical importance of children's participation in decisions

World Vision Australia would argue, based on our experience working closely with children, that what is in 'the best interests of the child' must be ascertained and clarified by thorough consultation with the child him/herself, and secondarily by consultation with the child's parent/s (or close family members if parents are not present).

We note that the Committee on the Rights of the Child suggests that child asylum seekers be allowed to participate in their asylum hearing "and to express their concerns" including through a "guardian mechanism".[21] These children should have an interpreter and independent legal representation.

In line with Article 12 of the CRC, the right of children to be heard is paramount, regardless of their age, in relation to all aspects of their situation as asylum seekers. This includes questions ranging from conditions of detention, deciding whether or not children should be placed in the care of an adult from their own community of origin, within a detention facility, or with a foster family externally, or whether the child's two parents should be separated.

In diverse settings from Cambodia, Myanmar and the Philippines, to Colombia, World Vision Australia has found that when children are allowed to enjoy their right to participate and express their opinions in matters concerning them, they provide adult decision-makers with important guidance. [22]

Recommendation:

  • That the Government implement procedures to ensure that children are consulted fully, and those consultations inform the policy and practices, in relation to all aspects of their status as asylum seekers.

TOR 6:
The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention

World Vision's experience working directly with children during and after situations in which they were refugees or displaced, indicates that the trauma experienced by the children often has long-term consequences. In addition, any disruption to their normal education needs remedial attention afterwards.

Recommendation:

  • For traumas and disruptions arising specifically from the period in detention, the Australian Government bear a special responsibility and duty of care to assist these children, and those in the Australian community who will be called upon to help them, well into the future.

1. Island Nation or Global Citizen? Challenging Australia's World Vision, World Vision Australia, 2001.

2. http://www.unhcr.ch/children/glance.html

3. February 2002. http://www.immi.gov.au/detention/women.htm

4. November 2001. http://www.immi.gov.au/facts/82detention.htm#3

5. http://www.humanrights.gov.au/human_rights/children_detention/background/introduction.html

6. http://www.humanrights.gov.au/human_rights/children_detention/background/introduction.html#convention

7. UNHCR, Revised Guidelines on applicable Criteria and Standards Relating to the Detention of Asylum-Seekers, (UNHCR Guidelines on Detention) Introduction, Guideline 6 (1999), at http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

8. Articles 27 and 28 and throughout the text of the CRC.

9.UNHCR, Refugee Children: Guidelines on Protection and Care (1994), chapter 7, at http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

10. Philip Ruddock, Minister for Immigration, 'Women and Children in Detention', at http://www.minister.immi.gov.au/detention/women_&_children.htm, accessed 6 March 2002.

11. For examples, see http://www.minister.immi.gov.au/detention/facilities.pdf

12. 'Woomera Alternative Detention Arrangements', see http://www.immi.gov.au/facts/83woomera.htm

13. Philip Ruddock, Minister for Immigration, 'Women and Children in Detention', at http://www.minister.immi.gov.au/detention/women_&_children.htm, accessed 6 March 2002.

14. The Immigration and Naturalization Service's Guidelines for Children's Asylum Claims, discussed in Protecting the Rights of Children: The Need for US Children's Asylum Guidelines, Women's Commission for Refugee Women and Children, New York, December 1998. Full text published online at http://www.womenscommission.org/reports/reports.html

15. Of 365 children in detention, 13 are unaccompanied minors. February 2002. http://www.immi.gov.au/detention/women.htm

16. UNHCR, 1997.

17.http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

18. In Canada, detention has been the exception rather than the rule; hence the controversy when in the summer of 1999, around 130 Chinese children, who arrived without their parents on four boats on the country's west coast, were detained. http://www.unhcr.ch/children/david-goliath01.html

19.We understand that of the 17,000 asylum seekers in Sweden, 10,000 reside outside detention centres, in group homes in the community; children are only detained for a maximum of seven days. http://www.amnesty.org.au/airesources/docs/refugee/alternatives.pdf

20.http://www.immi.gov.au/detention/women.htm

21.http://www.humanrights.gov.au/human_rights/children_detention/background/detention.html

22. In Cambodia, children's opinions on the issue of child sex tourism have helped to reform local, national and international policy on the issue. In Myanmar, children's own input as to what they consider appropriate forms of discipline are being drawn upon in efforts to help eliminate physical abuse. In the Philippines, children are directly engaging with policy makers and leaders at municipal, regional and national level to ensure that children's voices are being considered on critical issues such as child labour. In Colombia, child peacebuilders are striving to counter endemic violence.

Last Updated 9 January 2003.