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Submission to National Inquiry into Children in Immigration Detention from

the West Australians for Racial Equality

The commissioner will inquire into the adequacy and appropriateness of Australia's treatment of child asylum seekers, and other children who are, or have been, held in immigration detention, including:

1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors.

Australia is signatory to a number of international treaties which impose protection obligations upon the government in relation to people who are physically present in this country. People who seek asylum on-shore in Australia are currently granted Temporary Protection Visas (TPVs) if found to be genuine refugees. Unaccompanied minors are included in this process of mandatory detention, subject to investigation and their claim's determination, before being released into the wider Australian community.

It is recommended by UNHCR that Temporary Protection Visas (TPVs) be issued in cases where the political circumstances in the refugees' country of origin are likely to change, thus allowing the possibility of repatriation. Whilst the political circumstances of Afghanistan have experienced significant change, since the rule of the Taliban has been overthrown, it does not automatically follow that these refugees can safely be repatriated. Many Afghan refugees are of Hazara ethnicity, who have systematically been persecuted by many regimes before the Taliban came into power. It seems doubtful, therefore, that it would be consistent with UN guidelines or the spirit of the various international treaties to which Australia is signatory, that these people be sent back to their country of origin on or before the expiry of their 3 year TPVs. It seems counter-productive, costly and ill thought out to issue a second TPV. Not only is this an unnecessary administrative complication but it has ramifications for the refugees and the support services available to them. Those refugees issued with Permanent Protection Visas have available to them a range of settlement services which are denied the children and unaccompanied minors issued with TPVs.

It may be argued that many of the policies applied to on-shore asylum seekers contravene numerous articles of treaties to which Australia is a party to including:

We urge that Australia act to ensure that all children seeking asylum here are protected, their development fostered, and their well-being assured in accordance with Australia's treaty obligations and its commitment to uphold human rights.

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

The relevant treaty with respect to mandatory detention of either accompanied or unaccompanied minors is the Convention on the Rights of the Child. Article 37(b) and 37(c) states:

(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;

The experience of many children seeking asylum in Australia, whether together with their parents and/or other family members, or unaccompanied, is the deprivation of their liberty for an indefinite period of time within a Government-funded detention centre. The detention of children in this instance is is not being used as a measure of last resort, and many children have remained in detention for over 12 months, which is a considerable length of time. The uncertainty faced by refugees during flight is thus prolonged once they arrive in Australia.

Many of those released from detention have recounted being referred to as a number, not by name, which surely offends the inherent dignity of any human when subjected to such treatment for an extended period of time. The effect of this on the developing personalities, and the social, pyschological and emotional functioning of growing children must not be underestimated. One teenage boy, who arrived as an unaccompanied minor from Afghanistan in 1999, described the fear he felt during his time in detention, and the 'punishment' people endured if they did not respond to their number being called over the loudspeaker. This punishment may include being restricted to certain areas of the detention facility, or being excluded from certain leisure or educational activities.

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, with particular reference to:

Children in Australia's detention centres face conditions that have been described as worse than that of our own prisons. There are a number of problems that result from the staffing arrangements of these centres, and the lack of transparency of services that are supplied by ACM.

Asylum seekers are usually traumatised people. Most have survived the journey to Australia by unsafe means, the majority of them are found to be genuine refugees, which entails their having also survived persecution and/or torture before fleeing their country of origin. It would seem essential, therefore, that an adequate number of highly-trained mental health professionals ought to be providing services to enable these people to cope during their time of detention. The Miscellaneous Worker's Union has claimed that the guards employed by ACM undergo a high level of stress and strain in implementing the Government's policies, and that the ratio of staff to detainees is unreasonable given the circumstances under which they are operating. Children are obviously more vulnerable than adults, thus the effect of such an arrangement on children in detention is exacerbated.

Many factors contribute to the overall psychological impact of the refugee experience. All refugees suffer from multiple losses, having been forced to flee their homeland. They must also endure the stresses of living in various countries of temporary asylum, or passing through many countries in order to get to Australia with people smugglers. Other traumatic experiences may include: human rights abuses, inadequate health care, malnutrition, despair, loneliness, anger, group violence, witnessing the capture, torture or death of a family member and imprisonment. Some refugee youths have also 'been actively involved in civil war as soldiers and have suffered a deep loss of their political cause making them feel completely alienated from the youth in their new environment." Unaccompanied minors have the added distinction of being without parents or carers during this turbulent period.

Living through such circumstances often results in Post Traumatic Stress Disorder, which may affect the developmental processes of a child or adolescent in the areas of cognitive functioning, trust, initiative, interpersonal relations, personality, self esteem, outlook and impulse control. The demands of resettlement in a new culture and environmental system are also confusing and difficult, often complicated by social isolation. This combination of multiple stresses and losses that is experienced during flight, on arrival and post arrival leads to a high likelihood of depression, possibly leading to self harm or suicidal tendencies during and after initial settlement.

It is estimated that the majority of refugees who enter Australia have suffered some form of torture or trauma. Unaccompanied refugee children are particularly emotionally vulnerable without the support of their family, and some may have witnessed their parent's torture or death. It is also possible that they themselves have been victims of rape or sexual assault during their escape. Torture is both physical and psychological, so victims may have both visible and invisible scars. It is important that service providers, such as their Guardians, are aware of the lingering effects of trauma, and how this may affect their settlement experience. The condition of uncertainty and doubt about the future faced by teenagers with TPVs can do a great deal of psychological and social harm. They are at an age when their personalities are yet to be fully developed, and are trying to make sense of their own place in society. The stability and increased access to services that a permanent visa would supply could improve their psychological well-being dramatically.

Adjustment, stress and anxiety disorders may be prevalent amongst this group, and mental health services need to be accessible to these teenagers so that treatment and support can be managed appropriately. When these children are the holders of TPVs they are ineligible to access to Migrant Resource Centres which would provide specialist referral services to ensure appropriate mental health services are accessed. In addition, TPV holders are also denied full access to educational and language training, frustrating their ability to seek this type of support.

In our view, referring to somebody by using their names is a fundamental acknowledgment of their human dignity. Children, like adults in detention have been denied this basic dignity by the ACM staff who know and refer to people by a number.

The provision of education in detention centres is uneven, and by all accounts, inadequate. Children in detention have often come with little or no education, and when they spend prolonged periods in detention, that further delays their educational attainments.

Those children issued with TPVs may have limits on their access to education in schools and TAFE, including the Intensive Language Centres (ILCs) which provide specialised English tuition from highly trained professionals to other newly arrived children of migrants or refugees. Those who have been granted permanent residence in Australia (on a PPV) are entitled to 12 months enrolment at an ILC if it has been assessed that their English skills are insufficient.

Many refugee children have had disrupted or non existent education, thus the new school environment may be alienating to them, and the ILCs provide a smooth transition into mainstream schooling. Those holding a TPV are also excluded from attending the English as a Second Language (ESL) classes that operate out of some public and private High Schools. Thus, it is very difficult to provide these children with the English skills needed to function in Australian society.

In detention, children are unlikely to receive positive affirmation of their own cultures. Although they are usually in the company of people with whom they share language and culture, the older children at least would be aware that their culture is not necessarily respected by the people in authority with whom they must interact. At the same time, detention does not provide adequate exposure to 'normal' Australian life and culture. It is important to provide opportunities for children to learn about Australian culture and language as well as to maintain knowledge and pride in their ancestral cultures. The development of a sound and healthy identity, pride and self-esteem, depends on positive cultural as well as social and psychological experiences.

The UN Convention on the Rights of the Child (CROC) Article 3(3) States that:

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.

It has been the case that unaccompanied minors released from the Curtin Detention Centre in WA have experienced considerable delays in meeting their Guardians (Case Managers) for the first time. The responsibility lies with DIMIA to give DCD and the On Arrival Accommodation sufficient notice of the refugee child's expected release so that services and supports can be coordinated and provided quickly and efficiently. It is important for the Guardian to make contact with the child as soon as possible, as it is his or her responsibility to give these refugee children the support, guidance and care needed to thrive as they mature in Australia. As some of the unaccompanied minors may have as little as 3 or 6 months before they turn 18 years old, they will receive only limited assistance until they are required to be independent. The length of time taken to allocate Guardians to these refugees, as well as the subsequent lack of direct contact they have with the children, indicates a pattern may have emerged in which this group of clients is considered a 'low priority'.

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

There is ample documentation, including from the Royal Australian College of Child Psychiatrists, and from qualified practitioners and others who have worked with children in detention, or observed them, that there are numerous harmful effects of detention on children. Toddlers and small children are often fearful and anxious; some children's development is below the expected level for their age; some older children have attempted suicide or practised forms of self-harm. It does not require great expertise or imagination to appreciate the ill-effects of detention.

This would be so for any children, but in the case of asylum seekers, the experience of detention often exacerbates trauma they have already suffered in their home countries or on the journey to Australia. Many have lost close relatives, or witnessed violence, or lost their homes and possessions, or other distressing events. The boat journey from Indonesia often entails perilous seas, overcrowding, sickness and consequent terror. The parents of children in detention are often demoralised and even depressed and this sometimes undermines their capacity to give affection and comfort to their children. Moreover, the restrictions on movement and other activities in the camps tend to inhibit spontaneity between parents and children. Children sometimes witness the humiliation of their parents, and may also observe their anger and frustration. These and other experiences may result in children's respect for their parents being compromised. Unaccompanied children are even more vulnerable as they may have no one whom they love and trust in the camps.

We stress our view that under no circumstances should children be held in detention, with or without their parents.

We strongly urge that all children in detention should be released into the community, with their own parents, except is cases of demonstrable abuse or neglect. Separation from their parents can only harm most children further.

Apart from the humanitarian concerns, we believe it is in Australia's interests to act in the interests of the long-term healthy development, adjustment, and contentment of refugee children since many of them are likely to end up living in Australia.

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.

It is difficult to see how the human rights of asylum seekers can be ensured in detention. While some measures may be taken to ameliorate conditions, detention itself, particularly in remote, prison-like facilities. Ideally, all asylum seekers should have their claims processed expeditiously; should detention be considered unavoidable, it should be kept to a limited time, days or weeks, rather than months. Detention should also be in centres that allow access to people, services and facilities that can foster the well-being of the detainees, the majority of whom have committed no crime and are bewildered when they find themselves incarcerated in remote and inhospitable places. Other countries, including our neighbour, New Zealand, have shown that it is possible to have asylum seekers in the community without compromising the security of their societies. The detrimental impact of detention for both adults and children is well established and will have consequences for the detainees, and also for Australia's reputation, and for harmonious relations in our country.

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.

Those who hold a TPV must remain in Australia for 30 months until their application for permanent residency can be processed. It is only when a permanent visa is secured that a claim can be made to sponsor one's family to Australia. It is a very difficult procedure to locate family members remaining in Afghanistan, given the country's level of infrastructure and technology, as well as the current political climate. It is also a distinct possibility that some relatives remaining in the homeland may not still be alive. This initial waiting period, when coupled with the average time it takes to find someone, suggests that if successful, it may take 5 years for the sponsored relative to get to Australia. In some cases there is little hope for future reunification, so it is important to give refugees, especially children the opportunity to settle in Australia, to facilitate their rapid integration into the community, and where possible, to expedite reunion with family members who can be brought to Australia.

Last Updated 9 January 2003.