Transcript of Hearing - SYDNEY
WEDNESDAY, 17 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
AVILLION HOTEL
DR OZDOWSKI: My name is Dr Ozdowski and I am the Human Rights Commissioner and we are conducting an Inquiry into Children in Detention. To my left is Mrs Robin Sullivan who is Assistant Commissioner for the Inquiry and in her other life, she is Queensland Children's Commissioner and to my right is Professor Trang Thomas, Professor of Psychology at the Melbourne Institute of Technology and she is also Assistant Commissioner. Also to my left is Mrs Vanessa Lesnie and she is Secretary to the Inquiry.
The Commission believes it is important to respect the privacy of the individuals and to protect children in particular. So as a result there are a number of orders made to protect privacy. In particular I would like to ask you not to identify any asylum seekers and not to disclose names throughout the hearings. I'm also asking you to not disclose the names of any other person who either is involved in the detention centres or who requested that their identity be protected. Maybe now I could ask you to take an oath or affirmation. Could I ask you to give your names, qualifications and the capacity you are appearing in for the record.
MS SYLVIA WINTON,
sworn [9.02am]
MS JENNIFER MARSH, sworn
Asylum Seekers Centre
MS WINTON: Co-ordinator of the Asylum Seekers Centre. I am a graduate social worker.
DR OZDOWSKI: Thank you.
MS MARSH: I am a qualified social worker and I am the case worker at the Asylum Seeker Centre.
DR OZDOWSKI: Thank you. Now, could I ask you to make an opening statement please, but maybe before it, I would like to say thank you for your submission. We have read it and the purpose of the hearing is to test evidence and to acquire new information which could be useful for the inquiry so that is what we will be trying to do. Also, if there is any additional information you would like to provide us, please be in touch at any future date with the Secretary to this Inquiry. Also, if there are some particular case names you would like to be mentioned, please mention them after the hearing to the Secretary. So now, if I could ask you to make your opening statement, please.
MS WINTON: Okay. I think probably the opening thing is just to acknowledge the nerves that are going on for the two of us who have not been involved in something quite this formal before but what I would like to say in opening is that most of the folk that we meet at the Asylum Seekers Centre and in the course of a year we are seeing some 312 asylum seekers or 312 cases, applicants, and then of course the families are involved. Most of the folk that we meet are not in detention.
We see some folk who are from detention and largely it is parents who are reporting on the children's behaviour. In the last year, we saw some 130 children between the ages of 5 and 18, so school aged children, and pre school children who were in the numbers of about 72.
DR OZDOWSKI: Children who were on TPVs?
MS WINTON: They were either on bridging visas or a handful have been on TPVs.
DR OZDOWSKI: TPVs, okay.
MS WINTON: Okay but I guess what I'm saying is that we do see a lot of children asylum seekers. It is largely though the parents who are reporting on the behaviour of those children so we will spend an hour or so with the family, the children will be in the room. The stories that we hear from those released from detention vary differently, quite markedly from the children that are released from detention. So from your community asylum seekers we are hearing issues about getting children into school, getting normalcy within their life, from those from detention we are constantly hearing stories of nightmares, of fear, of fear of authority, of fear of what has happened to their parent, of fear of what they saw.
So the stories are very different from otherwise a similar group of refugee applicants. The other thing to mention in introduction is that there is another scenario of folk who are affected by detention and those folk who have not been mentioned in the submission are not mentioned because it is not the children who are in detention but where a parent has worked in breach of their visa and the parent has been taken to detention. We have seen the effect on those children that are left in the community with no way to survive, no parent to feed them or at least the father taken to detention, no way to have that normal life that they would otherwise have had with parents around them and the impact on that group.
The other thing to say in introduction is that there are other cases, apart from the three that were noted in the submission, there are certainly many other cases that could have been mentioned in the submission.
DR OZDOWSKI: If you could maybe concentrate on children released from detention and on the impact of detention on them. You said that they do suffer some psychological problems after the release. Could you be more specific and also if you could perhaps relate it to different age groups? What are the most common problems experienced by you.
MS WINTON: Okay, sir, in that regard I'm going to let Jen do that because it has been Jennifer who has largely been seen by the younger family.
MS MARSH: I will talk in particular about the second family, the case study 2 who I interviewed. I interviewed the father of the family. He had four children, the ages were - sorry I'll have to look them up - they were in Woomera Detention Centre for 10 months. He reported that they had seen several things, they had seen fires, they had seen a man mutilate himself, stab himself, had seen people climbing up trees threatening to jump off, that kind of thing. He did say that they had nightmares in the detention centre and I saw him recently when they had recently come out of detention and he said they were still suffering from those nightmares at that time.
He was particularly worried about their schooling. He was saying how were they expected to concentrate at school when they were having nightmares during the night because of what they have seen in the detention centres. Yes, so basically what they had seen, he said that they had witnessed similar violence in their country but not to that extent, not personal violence.
DR OZDOWSKI: Do you see also kids from other detention centres or Woomera is mainly the centre which is delivering your clients?
MS MARSH: We see them from all detention centres. Woomera has been the main one that I have seen.
DR OZDOWSKI: Are there any differences between the kids coming from different detention centres?
MS MARSH: Woomera seemed to have been the worse from what parents have reported to me but certainly I don't think, you know, they benefited from being in either one. All of them seemed to be about the same.
DR OZDOWSKI: Do you know if they had any schooling in Woomera during the 10 months they were there?
MS MARSH: The two families that I interviewed, the first one in case study 1 reported that there was schooling available but the teacher was actually a detainee and the second reported I think it was only a few hours. So it didn't seem
DR OZDOWSKI: So it didn't seem adequate?
MS MARSH: Yes, they all commented that it wasn't a very good learning environment for the kids to be able to concentrate in.
DR OZDOWSKI: What happened when they went to a local school?
MS MARSH: To a local school?
DR OZDOWSKI: Yes.
MS MARSH: The first group that I interviewed said that, the mother who I interviewed, said she thought her kids were adapting okay. It was difficult because of the language and culture and things like that but they seemed okay for the time being. The second group I interviewed, the father said that they found it difficult that particularly a lot of things were effecting them after detention as well, the fact that they weren't settled properly, the children didn't have beds to sleep in at night, things like that. The third man I interviewed was actually young, 18 years old, and when he was released from detention, he went to high school the next day and he commented that the school principal knew that he was some kind of a refugee and had asked him about that in the playground sort of jokingly and in front of other students and he had admitted that he was in Villawood and he said the principal was embarrassed and walked away from him. So there was stigma within the school as well.
DR OZDOWSKI: What about his English, because usually people from detention centres go to intensive English classes.
MS MARSH: Okay.
DR OZDOWSKI: So this 18 year old must have been speaking quite good English.
MS MARSH: Yes, he does have good English.
DR OZDOWSKI: Okay. So he didn't go to a normal channel so possibly he went to another school?
MS MARSH: Yes, that particular case, he was living in the community on a bridging visa and then because of an application, the second appeal to the Minister, the men were then placed in detention. So he had been living in the Australian community before, yes.
DR OZDOWSKI: Now, what about the TPV visas? Do they have any impact on the families settling in the Australian society?
MS MARSH: The particular first family I can speak about, the father came out from his country, was placed in Woomera, released on a TPV and then moved to Sydney because of the problems with family reunion he had left the mother and children behind in their home country. A year later the mother and children actually came out by boat and were placed in Woomera. During that time the father was in Sydney and there was no effort to perhaps place the family in Villawood where he would be able to visit and support them. So that is, to me, that is an obvious case where the family has
DR OZDOWSKI: The Minister quite often says that he does not like to split families and on this occasion I can see children were kept in Woomera and father was in Sydney
MS MARSH: Yes.
DR OZDOWSKI: was an attempt made to release children to the father?
MS MARSH: No.
DR OZDOWSKI: And how long did that situation last?
MS MARSH: The father was in the Australian community and the mother and children were in Woomera for 10 months.
DR OZDOWSKI: 10 months
MS MARSH: Yes.
DR OZDOWSKI: they were separated?
MS MARSH: yes.
DR OZDOWSKI: Now, could you comment about any possibility - lasting impact of detention on children?
MS MARSH: I believe that, from what I've been told by the parents, that there's a lot of psychological damage done. The fact that children are still having nightmares, things like that, things that we don't normally hear from other asylum seeker children who haven't been through detention. The separation of family
DR OZDOWSKI: What are the symptoms?
MS MARSH: Yes? Also education, not having adequate education at that age, health issues as well. I've heard reports about long queues, the environment, not very good - not adequate showering facilities, a lot of disease, a lot of sickness in the detention centre and things like that.
DR OZDOWSKI: Yes. What is
MS WINTON: Can I pick up on one of those?
DR OZDOWSKI: Yes.
MS WINTON: Another family that comes to mind is a family that were in Woomera for 12 months where two teenage boys were with the parents for that 12 months and I interviewed this family in their home. When the boys spoke to the guards in detention and asked why the guards were so cruel to the people in detention - and the particular cruelty that they were talking about or reporting to me - was that they were woken for all of that 12 months at 1 am with a torch in their eyes, saying: show me your identity paper and that was one of their routine checks and when the guards were asked why they were so cruel to them, the boys were taken in the wee hours of the morning to isolation detention for 45 days and the parents weren't told where they were taken and so
DR OZDOWSKI: How old were they?
MS WINTON: They were 16 and 17 when I met them and they had been in Woomera for a year before that, and when I asked the boys would they come to a public forum and speak out about the conditions, mother said: these boys must never speak out. We've seen what happens to children in this country if they ask questions or speak out.
DR OZDOWSKI: What did she mean?
MS WINTON: That they were taken to detention. They were taken to isolation and she didn't know where they were held. So this family were punished for speaking out, the mother believed and these boys must never speak out. This was a family where both parents were engineers, where the young boys were obviously very - they certainly had excellent English. They were a family from Iraq. We got these children into school. Very soon the eldest one dropped out of school. The ability to complete school, to see life as a child, to kick footballs or to participate in a child's life had totally been taken away from them. I don't think that was just the refugee experience of fleeing their country. Prior to that they had been students who had studied and who
DR OZDOWSKI: If the family would wish I wouldn't mind having the names of the children to check up this story about this 45 days of detention in isolation compound. So if I could ask you to ask them if it would be possible to check for us this
MS WINTON: I will ask her. I will call her.
DR OZDOWSKI: If yes, please let us know.
MS WINTON: I know she is very frightened. The family are very frightened too.
DR OZDOWSKI: Why are they frightened? They are already out of detention so what are they afraid of now?
MS WINTON: I - the belief that it is, within Australia, that this fear, this treatment is sanctioned, that if you speak out in Australia, you will be punished. They also - it is not an unusual - the story from TPV folk is: we are not safe, we know we might yet be sent back, and so, speaking out is a fear. A fear of settling, a fear of participating fully within this society for what the recriminations might be.
DR OZDOWSKI: We heard much evidence that in long-term detention the families detained disintegrate.
MS WINTON: Huge.
DR OZDOWSKI: could you tell me from your experience whether the families regain their composure after they are released from detention or what happens to families after they are
MS WINTON: Sadly, we haven't done any long-term study on that, Sev. I guess we are only seeing 3 years as the time. I'm having folk who are just coming around to that 3-year time now and our work has not been largely looking at - following 2 or 3 years later, saying: tell us the impact. It wouldn't be difficult to do but it would be something outside our normal call. We are doing case work with 25 to 30 people coming in our door of a day.
DR OZDOWSKI: When you see them in their family groups do the family role, the traditional family roles return to the family after being released from detention centre or are they grieving?
MS WINTON: I don't know that I can really comment on that. I mean, my inclination is to say "no" the family traditional role does not return. The pattern for the refugee applicants is that the family role does not return. Father, who was the traditional carer of the family usually does not pick up English as quickly as the children do, so there are all sorts of ways that refugee roles are topsy-turvied when they get to a new country. I don't know that I can say detention impacts, that there is any different study.
DR OZDOWSKI: What about the employment rate among people who get released on TPVs, what would be your experience, how many of them do work?
MS WINTON: What I hear of reports is that people ask if they have a temporary visa - once they release they are of a refugee-like possibility, they are less likely to be employed so TPV folk report because they have a 3-year visa: "no one wants to employ me, I might be going back", so while Australia has a high rate of casual employment or of part-time employment and we accept that there might be a turnover, these folk seem to be discriminated against even further.
DR OZDOWSKI: The last thing before I will ask my Assistant Commissioners to ask you questions, I would like to ask this. The Minister quite often says that these people cannot be released to the community because they would abscond. What is your experience with - because you are dealing also with the other kind of refugees, asylum seekers in Australia - what is your experience with families, especially families with children absconding?
MS WINTON: You get a smile on my face. The chance of a family with three or four children going underground in this country and surviving, feeding, educating - I mean the refugee applicants that we meet are desperate for their children to have a normal life, to have education, to attend school. The chance of them going underground, changing their name, picking up a new identity, is so remote it is almost laughable. It is just a ridiculous possible scenario. We don't hear of the general asylum seekers absconding. They are hanging out for the possibility that they will one day get their permanency here. They don't want to abscond - traditionally, the folk we meet are so law abiding, they are just beyond our normal Australian citizens' ability to say: this is what the government expects, this is what I must do.
DR OZDOWSKI: Do you know of cases when people disappear, absconded?
MS WINTON: I do not know of TPVs. I know of people who have come to the end of their refugee process and believe they are still unsafe to go home and
DR OZDOWSKI: So they have had a negative decision and they disappeared afterwards?
MS WINTON: And the only option will be that they are to be deported and I can think of two single men in my time who have done that.
DR OZDOWSKI: What about families?
MS WINTON: None.
DR OZDOWSKI: None at the moment
MS WINTON: Absolutely none
DR OZDOWSKI: in your experience?
MS WINTON: and I've been there for 5 years and seen hundreds of families.
DR OZDOWSKI: Moving through. Do you know of families who reached the end of the process which was negative and then availed themselves for deportation?
MS WINTON: And then avail themselves of the protection?
DR OZDOWSKI: No - deportation.
MS WINTON: Sorry.
MS MARSH: Deportation.
MS WINTON: Deportation. Sorry. No, because what I do at that last stage and it is very painful stage in my work, is to explore other possibilities and deportation is not one I would encourage a family to go through.
DR OZDOWSKI: So you will counsel them to depart voluntarily?
MS WINTON: Absolutely. That might be to depart to their own country or explore where else in the world might they go or what are the possibilities, but never would I - unless they said: I'm safe to go back, never would I suggest that they go through the process of deportation.
DR OZDOWSKI: How many families did you counsel last year?
MS WINTON: With this in mind? Probably about five families. I can certainly think of two single people who have gone back. I was
DR OZDOWSKI: Well, thank you very much. I will ask Professor Thomas to ask questions.
PROF THOMAS: Your submission was one of the few that raised the difficulties of bridging visa and just releasing people from detention centres on bridging visas which creates a lot of problems. We have heard that they don't have access to so many of the normal services. So what kind of suggestions can you make? Say for example, we can get the government to close down all the detention centres, people come by boat, people come here we all release them on bridging visas then what kind of suggestions would you make on the conditions that are sort of practical and acceptable to most people.
MS WINTON: Would you like to answer that?
MS MARSH: Yes. I would say first of all, rights to health care, to Medicare, also to permission to work and to Centrelink benefits.
PROF THOMAS: At the moment they get, what do they get?
MS WINTON: If they are on a bridging visa, if you are on a bridging visa
PROF THOMAS: At the moment
MS WINTON: you don't get
PROF THOMAS: Anything?
MS WINTON: No, you are not able to access Centrelink, you are - if you are in the community and on a bridging visa, if you applied within 45 days and without certain other conditions you might get permission to work. You might not have enough English to find a job or you might have such trauma or refugee experiences that make it difficult or impossible for you to work, especially if there are children involved but work might be your only means of survival. Now if they were to have no detention centres and people were to be released into the community on bridging visas, I think permission to work would be essential and, as Jen said, that would attach to it, the right to have Medicare and therefore medical assistance.
PROF THOMAS: At the moment the people can always access public hospitals.
MS WINTON: Can they?
MS MARSH: They can but then they are billed towards - if they turn up in an emergency room and it is an emergency they will be seen but then they are billed for thousands and thousands of dollars afterwards.
MS WINTON: So a large part of our work is then advocating to get some sort of health care for a family that has no right to Medicare. And if you don't have right to Medicare, when you go to the public hospital, if they don't see your Medicare card, you have to sign a document and you will be given a bill and the bill is quite sizeable. Like at the moment we have certainly got a family that has got a bill for a child going to emergency for $2500, a child taken to intensive care. The family has no way to pay that, they don't have permission to work and they don't have access to Medicare. As I said to the Commissioner a moment ago, these people are fearful of not paying a bill. They are told within the hospital that if you don't pay your bill we will report you to DIMIA and they have no way to pay the bill because they have no permission to work.
PROF THOMAS: How is housing and food, who do they rely on - to get that?
MS WINTON: Again, at the moment, if for instance our folk were released from detention and it was on a bridging visa, without the permission to work, this would be extremely difficult. We manage sometimes to get folk into a refuge and ask them to take them without payment.
PROF THOMAS: In a way, do you think they are worse off?
MS WINTON: It is a good question.
PROF THOMAS: In detention centres they get health care, they get food
MS WINTON: And then they also
PROF THOMAS: .....
MS WINTON: and also they get the nightmares and the trauma that we are seeing.
PROF THOMAS: I'm trying to solve a difficult problem because if we are going to make some sensible suggestions
MS WINTON: Yes.
PROF THOMAS: we have to find a solution.
MS WINTON: I think there is a large community support. At the moment, people are saying: we would like to help asylum seekers, we would like to put people up.
PROF THOMAS: Yes.
MS WINTON: I'm sure you are aware of the housing project that is in Victoria with the asylum seekers there where they have located houses within parishes that care for people. We have got - the National Council of Churches have provided two flats for asylum seekers, rent free. There is a sense of community out there as well, I believe that. When children are involved we will get behind - if the government can't get behind providing accommodation for these people
PROF THOMAS: In America - because my family are refugees and I was a refugee myself - in America, there is a system where people in the community put their name forward on a register, say: :we are willing to take a refugee into our home".
MS WINTON: Exactly.
PROF THOMAS: Do you think that sort of thing wouldn't work in Australia?
MS WINTON: I think it can work, I think it can work, especially if there is support given to those people who are saying they will help - that is support from perhaps the agencies that can provide some training or some knowledge of torture/trauma/refugee issues to that family. So if the children are having nightmares, it is not a case of, good heavens, this is just too much, let's get them out of the family, but an awareness for that family to know of some of the issues around the refugee process that might affect the children. There are certainly a lot of families that ring us and a lot of response that we get. Recently I was out of the centre for 6 weeks and in that 6 weeks we had 150 volunteers ring and say: I'd like to do something for asylum seekers. What can we do for people out of detention?
PROF THOMAS: Your organisation, do you get funding from somewhere?
MS WINTON: Non-government, predominantly from two of the large Catholic organisations, the Good Shepherd Sisters give us the house rent free, our accommodation and a third of our funding, Mercy Foundation give us a third of our funding and under-pin our health care program where we offer health care to people that don't have Medicare and the other third is from the private sector, from individuals that want to support refugees.
PROF THOMAS: That is great, thank you.
MS WINTON: Thanks.
DR OZDOWSKI: Mrs Sullivan.
MRS SULLIVAN: How do people find out about your service?
MS WINTON: I should have submitted to you a copy of our annual report. We ask that at the time of the initial interview: How did you find out, so the statistics are all gathered. Probably the largest number is family and friends, then there are acquaintances and an interesting comment we hear is: "I saw another black person at Central Station" or at so and so and they will have told them how to find us. The next group probably is Australian Red Cross that refer to us, the private lawyers, legal aid, interestingly even Immigration refer because they have seen and know what we do and what we can offer. Hospitals, social workers that come in touch with asylum seekers. Our centre is the only one on the Sydney area that offers a service to asylum seekers.
MRS SULLIVAN: So for example, when people exit Villawood they wouldn't be provided with information about your service?
MS WINTON: They might be. I haven't been into Villawood recently to see if they have got any information about us. There is now at Cabramatta, a House of Welcome that has been set up for people being released from Villawood.
MRS SULLIVAN: That is by your organisation?
MS WINTON: No, by another. The New South Wales Ecumenical Council.
MRS SULLIVAN: Right. The Government occasionally, sort of, raises the issue that this is an impost in taxpayers having detention centres, and having this whole set up is costly to Australian taxpayers. Do you see any cost to the Australian taxpayer in the current system once people are released? You mentioned all the volunteers
MS WINTON: Yes.
MRS SULLIVAN: and churches and so on
MS WINTON: Yes.
MRS SULLIVAN: but do you see any evidence that the Government itself is paying any money to support people once they leave the detention centres?
MS WINTON: Under Jen's scenario, Jen is saying that, in answer to Professor Thomas, that she thought there should be Centrelink available.
MRS SULLIVAN: Mm.
MS WINTON: I suppose, one could argue that there was going to be that possibility. However, one of the comments that I hear from TPV folk is we are paying our taxes. Why can't we participate in the education that is offered? So if they do have permission to work, one would assume they are going to be paying their taxes, and then the access to Centrelink is no different than for you or I.
DR OZDOWSKI: Which of them do have permission to work?
MS WINTON: Anyone on TPV, anyone released on a temporary visa has permission to work.
DR OZDOWSKI: Have permission to work?
MS WINTON: Yes. The folk on bridging visas
DR OZDOWSKI: Yes, that is different.
MS WINTON: some will, some won't and those just released from detention predominantly won't.
MRS SULLIVAN: So that is a future scenario you are describing, but the current scenario, are you able to point at Government funds being used in any way?
MS WINTON: No, I don't believe - if I'm really trying to think about it from their perspective, additional people accessing a health care system
MRS SULLIVAN: But they get a bill from what you have said.
MS WINTON: They do get a bill, yes. I think there has been enough study done on the costs of "in detention" versus "out of detention". Out of detention costs are minimal. I haven't done the study, but I've certainly read about the study. I don't see it being an impost on the Government. I see it as a community response, and I think in your opening remarks about the cost of detention centres on the Government raises the issue about what is the cost of detention centres when they are not within Australia. And they are being paid for by Aid money.
MRS SULLIVAN: This is a difficult question to ask but I will ask it. In the hierarchy of needs of people, and you have mentioned health, education and housing, is there one that they ask for first? I'm trying to get a sense of where the greatest pressure point is?
MS WINTON: My response to that is that the issue of insecurity, the fear of perhaps being sent back is the worst thing for most of the TPV folk.
MRS SULLIVAN: So does that mean the priority is on counselling services?
MS WINTON: No, no. The priority is on making that visa a visa that doesn't leave them with the fear that we have said you are a refugee but, hey, we might be sending you back. Give it a longer term, or make it some other shape that lets them think that when conditions in their country change they might be sent back, the insecurity of being able to engage with their life, that is, I can't get my family to me, my fear of what is happening to them, that sort of insecurity.
The folk that have been released on TPVs and their families are not safe. These guys will sit and cry with me, big Muslim men, sit and cry about the children they have left and the fear, that they couldn't say goodbye to their children. That is, you know - they talk of suicide. They talk of the fear. Would you add anything different to
MS MARSH: I think that oppression of family and just the insecurity that manifests itself while they are waiting still.
MRS SULLIVAN: Finally, you mentioned one of the case studies involved some adolescent boys who withdrew from school. In general terms, adolescence appears to be a period of childhood that is particularly affected by the detention experience. Can you make any general comments about the adolescent children, young people, that you have come across and, I guess, make any suggestions of how to deal with them in relation to their detention experience and the post detention experience they have got?
MS WINTON: My comment would be that the adolescents that I've seen have been greatly affected by how our system has treated their parents so instead of these young people being able to see their parents in that traditional, responsible, being respected, role, they are seeing all of that taken away. That has, I think, been most unsettling so I'm seeing angry adolescents. Now, we see angry adolescents in our normal society but they are not angry about being rebellious teenagers. These are people with a just cause of disgust of how their parents have been treated, very unsettled from that experience.
MRS SULLIVAN: Do they tend to stay with the family or do they tend to move on, on and out?
MS WINTON: The teenagers, and I'm thinking of that same family from Colombia, stay with the family very much. They become the breadwinner for the family and they support that family.
MRS SULLIVAN: Thanks.
DR OZDOWSKI: Perhaps, I would like to return to the issues which were mentioned by you. The first one is you mentioned suicide, that they are talking about it. Are you aware of any attempted suicides or successful suicides among this group of people?
MS WINTON: Post detention?
DR OZDOWSKI: Post detention.
MS WINTON: I'm not, no.
DR OZDOWSKI: Or any self harm or anything?
MS WINTON: I'm trying to think.
DR OZDOWSKI: Post detention.
MS WINTON: I can't think of anything on the top of my head. If I look back through files and think, oh yes, but no, I can't, sir.
DR OZDOWSKI: Thank you. The second issue is that you said that quite a number of people rang you offering various kinds of support. On the other hand, we are reading different public opinion polls saying that the policy of mandatory detention is fully, well, 70 per cent supported by the Australian population. How would you reconcile these two different types of information?
MS WINTON: Commercial radio versus other sorts of radio. I think within any section of the community, we have got, you know, people that want to support one aspect of life or want to support another aspect. I really don't think there's ever going to be 100 per cent support of removing all families from detention. That won't come. I meet those people in my daily life, you know, when you go to a meeting of some sort.
DR OZDOWSKI: Did you see any changes in attitudes towards refugees, and especially children, during the riot up here?
MS WINTON: I see huge, huge changes at our place. Less than 12 months ago, we did a pilot study to change the name of our organisation because no one knew who an asylum seeker was. We have now a greater number, a much greater number, of people who daily make contact and say, "What can I do?" Our funding has become more secure. The decision was don't change the name of your organisation. People know, since September last year, who asylum seekers are and not only know, but care.
Yes, I know there's a very large negative response out there. I had a refugee, she is a permanent resident now, who said to me that the other night she was awake with her nightmares that she has, and she listened to whatever the talkback show was on the radio, and she said, "I was frightened. I lay there in my bed frightened." There's a negative element.
DR OZDOWSKI: Now, are the people who are released on TPVs attempting to form links with the broader community, and explain how they came, why they came, what were the issues and so on assisting in that public affairs area?
MS WINTON: Yes, yes. One of the things that we do at that first time of interview is to offer them the address of their own country support, the Iranian community or the Afghan Association. On the whole, they say, "thank you" and they don't make that link in the beginning. They explain to me that the reason being that they don't know who it is. They still don't know
DR OZDOWSKI: They don't trust.
MS WINTON: don't trust at this point. Further down the track, they are certainly participating as well as is possible when they know they are secure. They are certainly joining work. They are participating within their schools for their children. They are participating but not back within their own country on the whole.
DR OZDOWSKI: So whom do they trust in the broader Australian community?
MS WINTON: They often make links with people who were in detention at the same time as them so that is where they will have formed
DR OZDOWSKI: They come together, they will .....
MS WINTON: As one guy said, you know, "We have watched 25 people die on the boat that we came out on. We have experienced a lot together" so they form a friendship there. I guess, over time they start to know. They are as wise as anyone else as to know who they can trust and they come back to us every time there's a crisis, either within their own country or within their own family, or they lose employment, they need some more help getting through another stage, another hurdle. There's certainly been a lot of the TPVs coming back at the moment who were of that first group that were released. They know their 30 months is up and they are fearful of what is going to happen to them.
DR OZDOWSKI: Ms Winton, Ms Marsh, that is possibly all of the questions I have. I don't know whether you have got any other - would you like to make a concluding statement or have we covered all the other
MS WINTON: From my point of view, we have covered all the areas. I guess, you know, as the submission states, the impact on children is very different than the impact of the refugee experience where children have not been in detention, from what we are observing, and, I guess, I will be just looking forward to the report coming forward and hopefully, one day detention not being a way to punish people who have made a refugee application.
DR OZDOWSKI: Well, thank you very much for your evidence, thank you.
MS WINTON: Thanks for your time.
DR OZDOWSKI: Now, I would like to come to our next witness, and I would like to invite the representatives of UNHCR to come forward. Thank you very much. My name is Sev Ozdowski and I'm conducting this inquiry with my Assistant Commissioners. To my right is Dr Trang Thomas, who is Professor of Psychology at the Royal Melbourne Institute of Technology, and to my left is Mrs Robin Sullivan who is also Queensland Children's Commissioner, and I've also have got Ms Vanessa Lesnie, who is Secretary to the Inquiry over here.
I made a number of rulings relating to the confidentiality of evidence in order to protect the privacy of people, and especially, the privacy of asylum seekers. I would like to ask you not to identify by name or any other feature any asylum seekers in this hearing. I also would like to ask you not to identify other people who may be involved with the termination process. If you would like to provide us with case names, you can do it later to the Secretary of the Inquiry. Also, if there is some material we didn't cover during our cross examination of the evidence, we can do it later through either written submission or some other form. At the moment, I would like to ask you to take an oath or affirmation.
MR MICHEL GABAUDAN
[9.42am]
MR ALVIN GONZAGA
United Nations High Commission for Refugees
DR OZDOWSKI: Now, I would like to ask you to state your names, addresses, qualifications, and the capacity in which you are appearing for the record of the hearings.
MR GABAUDAN: Certainly. My name is Michel Gabaudan. I am the Regional Representative of the United Nations High Commissioner for Refugees. My office is based in [address removed], and my office covers the whole continent - Australia, New Zealand, Papua New Guinea and the South Pacific. I am accompanied here by Mr Alvin Gonzaga who is the Legal Officer in the Regional Office in Canberra.
DR OZDOWSKI: Well, thank you very much, Mr Gabaudan. It is good to see you here, and thank you also for your submission. We will, perhaps, concentrate more on international issues and on issues which are of direct relevance to your mandate and where you could help us a bit. So would you like to make an opening statement or should we come straight to asking questions?
MR GABAUDAN: I will, perhaps, make a very quick opening statement if you will allow me. The mandate of the High Commissioner for Refugees is to ensure international protection and durable solutions for refugees. We exert this mandate through cooperation with States. We cannot ourselves deliver international protection or durable solutions. Our role is, in some countries, operational but it is everywhere: we have a function to supervise the application of international instruments, including advising States on their performance in applying these instruments.
We base ourselves in our function on international human rights instruments. Of course, the Refugee Convention is the most important one for us because we are the guardians of the Convention, but the Convention only provides for rights that are specific to refugees. We also consider that refugees should benefit from human rights that are embodied in other international instruments, and we use these instruments in our assessment of how Governments are treating refugees. The most relevant of these instruments are, of course, the ICCPR, and the Convention on the Rights of the Child.
We also base ourselves and this is, I think, quite important on the body of soft law that has been developed over the years. The High Commissioner for Refugees reports to the General Assembly through the Economical and Social Council, and the ECOSOC has appointed an Executive Committee to oversee the functioning of UNHCR. This Executive Committee is composed of States - Australia is one of these States and was actually one of the first ones appointed to the Executive Committee. Every year, the Executive Committee reviewing both our activities and our budget on the one hand, and our protection function on the other, issues some conclusions.
Now, these conclusions do not have a binding effect on States, but as they have been adopted by our Executive Committee members, by consensus, we do estimate that they have a persuasive force and should be, as much as possible, applied by States who have contributed to their definition. Out of these conclusions, two processes take place. Many of these conclusions are summarised in recommendations of the United National General Assembly, so they do have life of their own, if I may say, and we also use these conclusions to draft guidelines that give application and effective implementation to international instruments that tend to be pretty general in their definition.
So a lot of our work with States is to try to use these conclusions that have been produced over the years as an additional body of law regarding refugees. I must confess that we have not been able to visit immigration detention facilities in a little more than a year, basically because of staffing constraints in my office, not because there is an opposition to do so. We are welcome to do so by the Government. We are preparing a new protocol to do so in the coming months, but we do not have recent experience in visiting detention centres, and we would not be able to comment, therefore, on the conditions in detention.
We have raised our concerns on the policy of mandatory detention with the Government on various occasions. As you know, we consider that detention is, inherently, undesirable and we do believe that the legitimate concerns of States with the sorts of movements of asylum seekers that we do see now, can be accommodated under the application of our guidelines. To finish, I would just like to mention that historically, we see perhaps two constraints to the application of these guidelines.
One is that the Immigration Act of '58 does not distinguish between asylum seekers and other aliens, while the first conclusion on detention which was, of course, passed much later, in '86 - this is conclusion 44, does ask Governments in their legislation and administrative disposition, to make a difference between asylum seekers and other aliens. The second historical concern that we have is that when the mandatory detention policy was adopted in '92, we understand practically in the second reading, that it was introduced with a clear deterrent effect against irregular movements. Now, if these reasons for the policy are still true, of course that limits the compulsion to look at alternatives. Thank you.
DR OZDOWSKI: Thank you. In your submission and now, you have expressed serious concerns about Australia's mandatory detention policy. Could you mention what exactly are these concerns, and could I ask you also to say a few words on how other countries are regulating the inflow of asylum seekers?
MR GABAUDAN: Yes, certainly. Detention is not only applied in Australia. Many States do detain asylum seekers at some point of time or, at least, some groups of asylum seekers. I would say our concerns with the Australian policy that it is probably the toughest one because it associates a series of elements that make it almost, an uncontrollable element of their treatment. First, it is mandatory which means there is no - you don't look at alternatives first. You look at everybody in detention.
DR OZDOWSKI: Is there any other country which has mandatory policies around the world?
MR GABAUDAN: No, and those who have it, do not have it on an indefinite basis which means people can be detained only for short periods of time.
DR OZDOWSKI: Could you name some other countries with mandatory policies?
MR GABAUDAN: I think Greece, and Denmark now is looking at it pretty soon.
DR OZDOWSKI: Sweden?
MR GABAUDAN: Sweden has alternative detention, and has very clear regulations on the amount of time people can be detained. In Australia it is a combination of mandatory, indefinite - which is people are detained until such a time as they have been determined to be refugees
DR OZDOWSKI: Or returned.
MR GABAUDAN: or returned, and the fact that it is not reviewable, so that makes it the toughest policy of all. Many countries would detain, but only for admissibility purposes, for a short time and, certainly, in most countries, this would be reviewable, either by the judiciary or by an independent administrative body, not by the body who had decided initially on the detention. My colleague is mentioning to me that when it comes to children, we are not aware of States that detain, systematically, children. They do so on a very exceptional basis.
DR OZDOWSKI: Yes, it was my next question. I would just like to ask you to outline any factors which may justify the detention.
MR GABAUDAN: Yes, our guidelines do recognise that the sort of movements that are taking place now do create some legitimate concern for States. We have, in our guidelines, provided for some specific conditions in which, we believe, detention could be justified - it is to establish identity, in a case which is a very common one like smuggling, in a case where asylum seekers have thrown their documents away and there are worries that they might be trying to cheat the Government and, therefore, to establish the truth.
Certainly, for admissibility purposes, this is something that has developed recently. I mean, because of the nature of these movements, which mix asylum seekers with people trying to seek asylum as a way to bypass restrictions to immigration, we do accept that an admissibility test is carried out by States to see who really deserves to go through fully fledged refugee status determination procedures, and who does not.
DR OZDOWSKI: Are there situations where it is okay to detain children?
MR GABAUDAN: We think that this should be argued very strongly, reviewed judicially, that in general it should not apply, that alternatives should be sought for children to start with. What is happening, I understand, in Australia is that as detention is mandatory, first you are detained and then eventually alternatives are looked at. We would rather see the opposite work.
DR OZDOWSKI: Let us deal for a moment with children who are travelling with families. It would mean the release of whole families, wouldn't it? The Minister would say that, possibly, it would encourage people who are using the services of people smugglers to bring their whole families at once and expose them to danger.
MR GABAUDAN: Well, the best interests of the child are to be with his family in general. I think that is internationally accepted.
DR OZDOWSKI: You see, the debate in public policies was with families in detention or outside, and the Minister is putting it on the level that if outside, only the children should be outside and not the family.
MR GABAUDAN: Well, this is why I believe that we should look at detention in general. The detention of children is a consequence of the general policy on mandatory detention. If you are not making detention mandatory and were only detaining people on the reasons we have exposed, you would already have a number of children that would not have to go into detention. So let us start by the detention of asylum seekers before we just address the issue of detention of children because most children - I think we have statistics that have shown that by May, out of 184 children in detention, only 21 were unaccompanied minors. All the others were there with their families.
MS LESNIE: Sorry, Mr Gabaudan, the reasons that you outline that might justify detention are similar to the reasons that the Minister gives as the reasons for detention. So what is the distinction between what you are saying and what the Minister is saying?
MR GABAUDAN: Well, I am going to put this in the most appropriate form. I do not know that there is a systematic review of all the people in detention to see whether they fit within these categories, for example, after 3 months or after 6 months. I mean, it may be at that the beginning quite a few people would have to be detained, particularly when they have arrived through smugglers and thrown their documents, but I believe that in most cases, you can run the security checks pretty quickly and I doubt that after a certain period of time the reasons which were valid initially for the detention remain valid, and as the procedure is not reviewable, we have no evidence that they increase .....
DR OZDOWSKI: I would like to change the issue for the moment. I would like to ask you about your experience with Nauru and Manus. I'm doing this because I have written to the Department of Immigration, asking the Department to facilitate visits of this Inquiry to both Nauru and PNG to see what is happening with children over there. Do you have any experience with Nauru or PNG?
MR GABAUDAN: We do have an experience in Nauru because we are processing some of the asylum seekers in Nauru, essentially those who were brought to Nauru on the Manoora. These include the Tampa people and those who arrived subsequently on the Aceng and who are mostly Iraqis, so we have been processing these cases - the Tampa people - because they were rescued at sea and we did accept that there was an issue of international responsibility in cases of rescue at sea. The Aceng was an exception we did, because they had been brought to Nauru in the same boat as the Tampa people. We said: we are going to make an exception for these. We are not processing subsequent groups.
DR OZDOWSKI: Did you personally visit Nauru?
MR GABAUDAN: I personally have visited it.
DR OZDOWSKI: Can I ask you, who is really running the show over there? Who has the ultimate responsibility for processing people there and for the running of the detention facility, what would be your judgment?
MR GABAUDAN: Well, the processing is done through a group of people by UNHCR, and these are the Manoora those who were brought by the Manoora.
DR OZDOWSKI: Yes.
MR GABAUDAN: And for all the others it is done by the Immigration Department, by DIMIA?
DR OZDOWSKI: DIMIA. So you both are involved with processing?
MR GABAUDAN: Yes.
DR OZDOWSKI: Who is really responsible for the conditions in the detention centre over there?
MR GABAUDAN: The IOM is overseeing the facilities and is subcontracting, as I understand, with some
DR OZDOWSKI: Chubb.
MR GABAUDAN: Yes, some agency in Australia.
DR OZDOWSKI: Do you have DIMIA officers in a way with watching brief over IOM and so on, who are resident in Nauru?
MR GABAUDAN: There are DIMIA officers there at any time. They have sent people for the processing. The relationship they have with IOM is something I would not like to comment on, it is not my prerogative.
DR OZDOWSKI: Okay, but at least they are there?
MR GABAUDAN: They are there.
DR OZDOWSKI: They are there and possibly they are having some roles controlling the roster?
MR GABAUDAN: I think this should be put to the next witness.
DR OZDOWSKI: Now, the last issue before I will ask my Assistant Commissioners to ask questions, is the issue of terminology. In Australia we are calling people "unaccompanied minors". In Europe and quite often they are called "separated minors".
MR GABAUDAN: Yes.
DR OZDOWSKI: Or "separated children". What is the difference between these two words being used to describe the situation?
MR GABAUDAN: That is for my colleague.
DR OZDOWSKI: Thank you, Mr Gonzaga.
MR GONZAGA: The term "detached" or "separated" children so far in the present context is to distinguish one without a - for detached children, or unattached children, they have no family members with their parents, or siblings, or family link, relations to the minor. Before the concept of "unaccompanied minor", they referred to "children without parents", but part of the context now "children without parents" could still be separated from the family, or the parents. So a person who is "unattached minor" is a person, a child, or a minor below 18 years old who has no adult accompanying family members, regardless if it is parents, or not. Or, "unaccompanied minor" before it was just context that there is no parent, but if he or she
DR OZDOWSKI: So it is no parent alive, or one parent?
MR GONZAGA: No parent is accompanying the child in the asylum country, for example.
DR OZDOWSKI: Country. But they could be living in a different country?
MR GONZAGA: Yes.
DR OZDOWSKI: So basically there is no difference in the meaning, is there?
MR GONZAGA: Basically, there is no difference, except that for "unaccompanied minor" before what we are using is that: minor is not accompanied by the parents, but he or she could be accompanied by an adult relative.
DR OZDOWSKI: But "separated" it sounds to me a softer term, because "separated" it appears to me that maybe they got accidentally separated, maybe because of war, maybe of other circumstances a child got separated from the parent. "Unaccompanied" I think to my mind it is having at least a degree of free will, that there was a choice that in a way a child was sent "unaccompanied". Would you agree with that distinction?
MR GONZAGA: I do not think that the distinction was made on that context.
DR OZDOWSKI: The second thing, I understand you to be involved with the Separated Children Europe Program. Could you give me some information about how global is that problem of separated children? I understand that there are over 40,000 of them presenting themselves. What I'm really interested is, how many of those children are presenting themselves in especially Western countries, and how do different countries handle that issue? Are there in a way "good practice measures" developed by some of the Western nations in this area?
MR GABAUDAN: Well, there aren't any, Commissioner, but we haven't prepared ourselves to answer that. I would have to go to the special reports and I will make myself heard, thank you.
DR OZDOWSKI: Could you take it on this question?
MR GABAUDAN: I will take it on that, yes.
DR OZDOWSKI: That is possibly all questions I had to you. Could I ask perhaps Mrs Sullivan to ask additional questions?
MRS SULLIVAN: Is there an increase in the child component of the refugee problem?
MR GABAUDAN: Yes, we have initiated the small study, and I will try to find my statistics which, of course, you might want to corroborate with the Government, because this is a sort of second-hand exercise we have carried out, but we found that in the reporting period, 1 January '99 to 31 October '99, children represented 6.3 per cent of boat arrivals. From 1 November '99 to December '99, went up to 16.4. For 1 January 2000 to December 2000, 17.2. And from 1 January 2001 to mid-June 2001 to 34 per cent. So I know the reporting periods are not quite the same but it does indicate basically a trend in an increase of the proportion of children among boat arrivals.
DR OZDOWSKI: Could we ask you later to provide the statistics for those as well?
MR GABAUDAN: Yes.
MRS SULLIVAN: Yes, thank you, that is helpful. In global terms, is your feeling that that pattern is the same, if you look beyond Australia?
MR GABAUDAN: I would have to check that. I only have statistics on the global number of asylum seekers that I have brought with me and so I would have to check that and then return to you.
MRS SULLIVAN: Thanks very much. The UNHCR guidelines on unaccompanied minors say that:
They should be represented by an adult who is familiar with the child's background and who would protect his or her interests.
The unaccompanied minors in detention actually have the DIMIA manager as their guardian. The Minister is on record as saying:
There is no conflict of interest on the basis that the DIMIA manager is not involved in the decision to grant a visa.
In your view, does that establish the independence that is necessary under your guidelines?
MR GABAUDAN: No we think the issue should be in our eyes reviewed. We have called for independence of the guardians of the children and we feel that there is a conflict of interest when the person who is the guardian is also the person who is responsible for the detention and the person who is responsible for the determination of refugee status.
MRS SULLIVAN: Do you have any examples of alternative models that would establish that independence?
MR GABAUDAN: There are in Sweden and Canada, certain examples where guardians are totally independent from executive bodies.
MRS SULLIVAN: In broad terms, what is the origin of the guardian in Canada?
MR GABAUDAN: I believe it is from the Social Welfare Department. It would of course have specific expertise in children and were not involved in the decision that affects the refugee condition of the child.
MRS SULLIVAN: Thank you. Perhaps if we could have that information as well.
MR GABAUDAN: We could give you that, yes.
MR GONZAGA: Yes.
MRS SULLIVAN: That would be helpful. In the other models that you have referred to, is there State provision of services, or is there a reliance on volunteer and non-Government organisation support?
MR GABAUDAN: There is a variety of set ups and it would - I have here - there are a few models here and I could share that with you.
MRS SULLIVAN: I guess I'm just looking for trends.
MR GABAUDAN: In general, see you have a mixture of systems where you have NGOs heavily involved, but certainly Government having a supervisory role, in national standards, very often the NGO who is working with these schemes is funded either totally or in great part by the Government.
MRS SULLIVAN: Because it appears to be in the current set-up in Australia, it is either voluntary organisations or there's very little Government funding that goes into supporting people once they are out of detention centres. I was just trying to get a feel if that was the norm or not. You are suggesting it is not?
MR GABAUDAN: No, in countries that have made specific legislation to protect children asylum seekers, there are mechanisms which involve close civil society, I would say, and economic support from government.
MRS SULLIVAN: My final question is again a reflection on your guidelines. We've been informed that the initial interview that occurs at the start of the process that asylum seekers are not given access to a record of that interview, even when they apply for it under "Freedom of Information". If in fact that is accurate, is that supported by your guidelines?
MR GABAUDAN: Sorry, would you like to just repeat it?
MRS SULLIVAN: We've taken evidence which suggests that the initial interview on arrival, there is a tape as I understand it made of that interview but at least at the present moment, that interview is not available to the asylum seeker, nor are they able to access it under the Freedom of Information Act. My question is, how does that fit in terms of the guidelines you mentioned in your opening statement?
MR GABAUDAN: In terms of that tape being requested by asylum seekers to get a copy of that tape, so far in our experience in every country there are different systems of conducting refugee status determination. Not all countries require that the interview should be taped. There's no requirement in our guidelines on the taping of interview. Now, whether the asylum seekers are intending to get a copy of the tape or not, I could not comment on that because the guidelines with regards to this particular issue are silent.
MRS SULLIVAN: Do the guidelines make a more general statement about people being provided with relevant documentation?
MR GABAUDAN: They do request that people be informed on why they are detained. So it is more on, in that aspect, the reasons.
MRS SULLIVAN: The reasons?
MR GABAUDAN: Yes. That has not been done.
MR GONZAGA: Let me just clarify this because we have to distinguish between the administrative and judicial review of detention with the requirement on the judicial review of the refugee status determination application. In our guideline, it requires on detention, it is mentioned about the judicial or administrative review of the detention per se. It is I think separate from the requirement of refugee status determination application.
MRS SULLIVAN: Yes, thank you for that.
MS LESNIE: If I could just quickly follow up on that. What we have heard on this issue, I think we are talking about the screening interviews here, what we've heard and we haven't verified it but what we've heard is that some of the lawyers representing asylum seekers, are unable to gain access to the transcript of the screening interviews. We've also heard from the RRT, the Refugee Review Tribunal, that it is their belief that they can get access to those interviews. What I'm curious about is whether the UNHCR guidelines might have something to say about different participants in the process having access to different documentation of the interview and information gathering process.
MR GONZAGA: No.
MS LESNIE: We are talking about refugee status examination, not detention in this instance.
MR GABAUDAN: We are currently in the process of dealing with reviewing the whole standards that should be applied in Refugee Status Determination. So I will
MS LESNIE: Come back to us when you are done?
MR GABAUDAN: Come back. It is a pretty thick documentation but I will come back to you and try to find the reference to that. It is not yet sort of classed as and Excom conclusion, it might be discussed in the forthcoming Excom.
MS LESNIE: Okay.
DR OZDOWSKI: Professor Thomas.
PROF THOMAS: Yes, I'm also concerned about the integrity of that interview of screening in and screening out because for the asylum seekers, that is the very very important interview. There is a kind of rumour out there that it is some kind of lottery as to who interviews you, you may be in or you may be in out. That is what I'm concerned about. Since you have the jurisdiction over New Zealand and other countries in the region, I would like to know why we have some claims that some people who are being interviewed here get rejected and they abscond, jump ship over to New Zealand and get admitted as refugees. Why is there that discrepancy, if both countries follow the United Nation's guidelines?
MR GABAUDAN: I will try to answer your question in general terms because of course it would be useful to look at individual cases, really where is the discrepancy. Let me start first by saying that within our monitoring capacity whenever we have looked at the way DIMIA is processing cases, we have in the very large majority of cases been very satisfied with the professionalism of the Department. Now, we have not reviewed all the cases but we have reviewed some on an ad hoc basis. We have an open invitation to do so by the Government. We have also been addressed documentation by lawyers or by individuals who were worried about certain cases and again, in most instances when we've reviewed this documentation, we haven't found faults.
So we would say in general terms we are not overly concerned and will not of course swear that no irregularity ever happens but in general terms we think a professional job is done. Now, of the discrepancies you mentioned, what is happening with secondary movements. Most people who arrive in Australia do not arrive straight from the country of persecution. They are secondary movers. In most countries of first asylum, people are recognised as refugees on a prima facie basis and that is done essentially on the broader definition of refugees as it is ensconced for example in the OAU definition which is people fleeing general violence, gross violation of human rights, etcetera.
Take the case of refugees in Pakistan, they would be in camps in Pakistan accepted as refugees under this broad definition because they haven't gone through individual screening. When they move to Convention countries of course, the criteria which is applied in their recognition is a Convention criteria which is a much narrower one. Now, Governments are always asked in the executive committee to be as generous as possible but that is really their discretion. Some Governments can decide to apply strict reading of the Convention definitions.
Some might want to be a bit more elastic, a bit more flexible. This is the discretion of Governments but we want to make sure that people know that at least the strict definition is applied: if possible then Governments can be more generous. Now, that could explain in some cases discrepancies between countries. Now, the decision to apply a tougher or more flexible reading will depend on the sort of pressure a Government is submitted to but it is difficult for me to answer more specifically without having a case to analyse.
PROF THOMAS: At the moment according to the poll, 75 per cent of Australians support the Government policy which has bipartisan support, mainly because it linked with border control. Now, how do other countries manage the border control issue if they don't have detention centres, you know, like in Europe, what is your view about this?
MR GABAUDAN: Well, I'm certainly no expert on border control and I would not like to make any comments that is the prerogative of States on that issue.
MRS SULLIVAN: Yes, okay.
MR GABAUDAN: What I would say is that most countries who have alternative procedures, whether it is a guardian, open hotels, reporting requirements, etcetera, do manage to control most of the people they put in these conditions and it does not seem to affect in a large manner their national security.
MRS SULLIVAN: Thank you.
DR OZDOWSKI: Mr Gabaudan - yes.
MS LESNIE: Just a couple of questions. I just wanted to follow up quickly on some of your experiences in Nauru. We have heard that most of the people on Nauru have been processed and there are some people who have been found to be refugees in Nauru. Could you comment on whether those people have been released from detention on Nauru?
MR GABAUDAN: No, they haven't. They have been I understand - I have not witnessed that - it has been reported - some attempts at organising trips to the beach, etcetera, and sort of slight release from the facility for short times by IOM. Where they have not been released, then we have directed our concerns to Government on various instances.
DR OZDOWSKI: Which government.
MS LESNIE: To which Government?
MR GABAUDAN: To the Australian Government and to the Nauru Government.
MS LESNIE: So whose decision is it to keep the refugees inside those detention facilities?
MR GABAUDAN: Well, the Australian Government tells us that it is the Nauru Government who is sovereign and should decide and the Nauru Government tells us they have leased the facilities to the Australian Government so we are on this .....
MS LESNIE: Okay. Could you comment on whether there are in Nauru any families, or parts of families that also have members of a family in Australia?
MR GABAUDAN: Yes, among the Iraqi refugees - those we have recognised under our mandate - I think it is a little - just below 50 per cent of them had an immediate relative. I'm talking about a father, or children in Australia. We have presented these cases for re-settlement to the Australian Government and that is being processed right now.
MS LESNIE: So when you say: you have presented, are these the refugees that you have processed?
MR GABAUDAN: Yes, indeed.
MS LESNIE: So in the group of refugees that you have processed, you have presented to the Australian Government the separated family?
MR GABAUDAN: Those who have immediate family relationship in Australia for two reasons, one, it is the right thing to bring them to their family, but also no other country would consider them for re-settlement because their immediate relatives are in Australia. It is both a question of principle and of practicality.
MRS SULLIVAN: What numbers are we talking about here?
MR GABAUDAN: 160 - that would be about something like 70 - I can give you the exact numbers that we have submitted. 70-something.
MRS SULLIVAN: That would be helpful.
MR GABAUDAN: I will give you the exact figures we have.
DR OZDOWSKI: Children are in it as well?
MR GABAUDAN: There are children. There are entire families who are mothers with her children, with the husband in Australia, there is a mixed
MS LESNIE: Sorry, could I just pick up on something you said there. Did I hear you correctly that if Australia denied a visa to the separated families, no other country would take them?
MR GABAUDAN: Well, I think so because when we present cases, we have to explain why we go through a certain country, so we look at association with this country first, family is the first one and previous involvement of the person with the country, whether as a student, etcetera, would be the second reason. So countries will always give priorities in their re-settlement intake to people who have had this association, then they would look at other cases, but I would see it very difficult for any other country to say: why shouldn't I take a woman with children to another place, for example, when the husband is in Australia? They would not see this as a logical investment of their resources. They would rathe direct it to people without any association and, therefore, who are still in demand and we do not as a principle push families in one country when they have the immediate relatives in another one, that would be contrary to the whole concept of family unity.
MS LESNIE: So if Australia said, no, it is possible that these families could sit on Nauru forever?
MR GABAUDAN: Yes, but they have not said, no, so far.
MS LESNIE: Okay.
DR OZDOWSKI: Are you finished?
MS LESNIE: Yes.
DR OZDOWSKI: Just one more question relating to Nauru. Earlier, when I asked you about the relationship and IOM and Immigration, you said that you prefer not to comment on the issue. Could I ask you for reasons, why do you prefer not to comment on the issue?
MR GABAUDAN: Well, because IOM is an international organisation which has its own mandate and its own right to relate to Governments and I'm not privy to the arrangements they have and, therefore, I cannot comment.
DR OZDOWSKI: I see. So you don't know the relationship which exists between IOM and the Australian Government?
MR GABAUDAN: We know there are contacts, but just like we have tried ..... meeting to coordinate as much as possible our activities, so that the international community at large looks coherent, vis-a-vis the asylum seekers, so we have been involved in intense coordination on the counselling of refugees that we are both processing and, therefore, as DIMIA, IOM and ourselves are involved, IOM is running the facility and DIMIA and ourselves as the agencies responsible for processing, we have decided how to surrender results, how to counsel after the results, how to present the appeal, so that there is a sense of coherency for the asylum seekers. We believe this is the minimum they are entitled to and that sort of coordination has worked quite well I think.
DR OZDOWSKI: Okay.
MR GABAUDAN: I would not like to go from that to comments on what is a bilateral relationship.
DR OZDOWSKI: Yes, we will ask DIMIA in this case and IOM directly about the nature of the relationships over there. The final question from me is, you said that the number of unaccompanied minors are availing themselves of asylum, or travelling across the world is much larger, it has substantially increased over the last few years. Could you perhaps speculate on the reasons, or give me the reasons, if you know why this trend is happening?
MR GABAUDAN: I think what I have said is that the number of children represents the higher proportion in later arrivals than 2 years ago in boat arrivals in Australia, the children in general. Unaccompanied minors in the world is something I don't have exact figures on. I mean, it has become an issue in Europe, so I would gather that the numbers have gone up, but to speculate on, I would like to go back to the studies that have been written because I fear that speculation might be extremely dangerous if I launch myself on wild speculation.
DR OZDOWSKI: What is a balanced proportion - increased proportion of children coming to Australia, how would you explain this?
MR GABAUDAN: Well, I would like to look into - and I would say I would like to look into because I'm not making an assertion there. Given the experience we have in Nauru with the Iraqis, whether the prohibition of family reunification under the TPVs does explain this increase in children arriving.
DR OZDOWSKI: What, there is a possible potential increase?
MR GABAUDAN: Well, we were struck by the very high proportion of people with immediate relatives in Australia among the people we have assessed ourselves in Nauru, and when I say at the same time that over the last 2 years there is an increase in children as a proportion of arrivals - of illegal arrivals through boats in Australia, I think one would like to establish whether indeed there is a relationship with the prohibition of family reunification. I say I would like to look into it. I think there are suggestions from our experience that it might be, it is not yet a conclusive statement.
DR OZDOWSKI: Statement, but you say at least there is a possibility that Australian Government's Mandatory Detention Policy and the conditions of the TPVs has contributed to the increase in the number, or the proportion of children arriving here?
MR GABAUDAN: It is a concern that we should look into in more detail, yes.
DR OZDOWSKI: Yes. Are you intending to look at the issue in more detail in the foreseeable future?
MR GABAUDAN: We will try to do so as we begin our visits of the detention facilities.
DR OZDOWSKI: Could you give me a time frame, or it is too difficult?
MR GABAUDAN: It is a bit difficult. I don't know the time frame.
DR OZDOWSKI: Well, I would like to welcome you that if this information became available before this Inquiry is finished that perhaps if you could provide us with that information. That is possibly all from us. Would you like to make a concluding statement?
MR GABAUDAN: Well, Commissioner, I would like to thank you for having invited us to make a submission to the Human Rights
DR OZDOWSKI: It is a pleasure and also thank you very much for all the work you put into the preparation of your submission and I'm looking also towards the questions on this.
MR GABAUDAN: Thank you very much, Commissioner.
DR OZDOWSKI: Thank you very much.
MR GONZAGA: Thank you.
DR OZDOWSKI: So now we will adjourn and we will resume at 11 o'clock.
MORNING TEA [10.28am]
RESUMED [10.58am]
DR OZDOWSKI:
Now, we will commence and I would like to ask people from Chilout to
come forward. Thank you very much, my name is Dr Sev Ozdowski. Please
take a seat, I am the Human Rights Commissioner and with me are two
Assistant Commissioners, on my right is Professor Trang Thomas and to
my left is Mrs Robin Sullivan. Also with me is Ms Vanessa Lesnie who
is Secretary to the Inquiry. Now, you possibly know that I made a number
of orders to respect privacy of people so I won't be repeating it. Now,
could I ask you to take an oath or affirmation?
MRS JOHANNE
GOW, sworn [11.00am]
MS HEATHER TYLER, sworn
Chilout
DR OZDOWSKI: Thank you. Now, could I ask you to give your names, addresses, qualifications and the capacity in which you are appearing, for the record?
MRS GOW: My name is Joanne Gow. My address is [address removed]. I'm appearing here as the representative for Chilout, a community organisation. I'm a parent.
DR OZDOWSKI: Thank you.
MS TYLER: My name is Heather Tyler. I live at [address removed]. I'm a journalist. I'm appearing for Chilout as a concerned parent and frequent visitor to Villawood.
DR OZDOWSKI: Thank you very much. Could I ask you to make an opening statement and in particular could you mention in the opening statement your expertise and your knowledge of children who are either in detention or have come out of detention?
MRS GOW: Chilout is a community based advocacy organisation and part of its work is it facilitates a visitors program to Villawood Detention Centre. Unlike many of the other organisations that will have appeared before the Inquiry, although many of us are professionals, we don't go in our professional capacity. We go as friends, we go as parents, we go as visitors, many of the Chilout supporters visit every week, sometimes two or three times a week and over a period of time have therefore built up quite strong relationships with some of the parents at Villawood Detention Centre and their children.
So really our evidence to the Inquiry is based on those sorts of relationships, not professional relationships but through this we have I think a unique perspective on the quality of life and the sort of environment that children and their parents are living with in immigration detention centres. We believe uncategorically, just for the record, that detention that is longer than is necessary to undertake basic health checks and administrative details becomes very quickly punitive in nature and the policy that can indefinitely incarcerate in children goes well beyond inappropriate. It is in essence over a long period of time immoral and that is the position we take very strongly.
DR OZDOWSKI: You mentioned the length. Do you have any period of time in your mind it could be so justified to keep people in detention?
MRS GOW: Only the shortest possible period of time.
DR OZDOWSKI: But you don't know whether the shortest is a week or a month?
MRS GOW: No. I think in Sweden it is about 6 days in terms of their immigration detention policy. So as soon as possible, as long as is needed for health checks to be undertaken and we identify who the child is and their relationship to the people around them and those sorts of details. I don't think there's any reason why those children should remain in detention longer than that period.
DR OZDOWSKI: I understand you visit Villawood quite regularly. How often do you go there?
MRS GOW: I personally go every couple of weeks. Heather Tyler here would probably go to the detention centre twice a week.
MS TYLER: Twice a week.
DR OZDOWSKI: Twice a week. Could you describe the process of access to Villawood, do you need to get Ministerial permission or ACM permission? How does it work?
MRS GOW: To access Villawood is relatively easy in essence. We go along to the detention centre. You need to have some identification, a driver's licence is sufficient, obviously with your name, a photograph, address, signature. You then line up outside the - we proceed through the first layer of razor wire which is the outside perimeter and then line up and we are processed which is simply a single sheet of paper with your name, address and details, the person who you would like to visit.
DR OZDOWSKI: So you need to know the person inside there?
MRS GOW: Yes, you need to know the name of a person and its to be correct.
DR OZDOWSKI: So if you misspell?
MRS GOW: It depends how far it is, it depends which guard is on, it depends whether they are happy for you to go through or not, it depends on a lot of things but generally you can identify who it is and as long as they know who it is, they will let you through. They tag you, then at
DR OZDOWSKI: What do you mean, "tag you"?
MRS GOW: You have a plastic tag put around your arm.
DR OZDOWSKI: Okay.
MRS GOW: You then go through metal detector. One of the difficulties is that the rules about what you can and can't take in sometimes change. Lots of things change, sometimes we're allowed to wait on the porch outside the office but I've been out a couple of times where we've had to wait outside the perimeter fence and those periods might be up to 2½ hours.
DR OZDOWSKI: Are there any restrictions put on you when you are attending to the detention centre?
MRS GOW: There are restrictions in terms of what we are able to take in. I think at the moment they are restricting it to one bag of food per visitor for detainees, no mobile phones, no identification.
DR OZDOWSKI: What kind of food, any kind of food?
MRS GOW: Any kind of food, it needs to be in plastic containers. It can't be in any metal containers, it can't be in glass and pretty much any kind of food is okay, yes. We can take reading material in, generally speaking and less than $10 and no car keys.
MS LESNIE: Just with the food, when you bring a bag of food, do you have to eat it in the visiting area or can the detainees take it back?
MRS GOW: No, the detainees can take it back.
MS TYLER: As long as it is not cooked.
MS LESNIE: Why the distinction, do you know?
MRS GOW: They say that there are too many cockroaches and that and that taking cooked food inside will encourage, I've heard this from ACM several times.
DR OZDOWSKI: So basically what can you take in? You can take in apples or some fruit, maybe some
MRS GOW: Dried biscuits.
DR OZDOWSKI: Dried biscuits.
MRS GOW: Snack sort of things but not meat products, cooked meat products because they I suppose have access to this from the dining room.
DR OZDOWSKI: So you entered, what is next? Can you go wherever you want to go?
MRS GOW: No, once you are past the desk with your tag, you then go through another room and then you are allowed into a fourth area and then into a visiting, for want of a better word, pen which is an area which is cordoned off from the rest of the detention centre and the detainees are called from the information you have provided and they can enter the visitors area from where they are living and they eventually come through.
DR OZDOWSKI: How long does it take, the people first to attend?
MRS GOW: It depends when you go. It depends if there is a muster on at the time. It depends - at dinner time obviously it takes people a little while to come through because they're eating, not very long, a few minutes.
DR OZDOWSKI: How do you communicate, is that in English or do you have an interpreter with you or there's a telephone which you could use?
MRS GOW: Most of the detainees I know speak quite good English and if they don't, there are other detainees who are able to translate for me. I mean, on a number of occasions particularly when I was putting this submission together, I took people with me who were able to translate for me.
DR OZDOWSKI: The meeting is one on one or the meeting could be also with a group of detainees?
MRS GOW: Often for me with a group and probably with Heather too, family groups together, friends together.
DR OZDOWSKI: What about children, do you have any contact with children when you go there?
MRS GOW: Yes, the children will often come out with their friends or they can come through into the visiting area.
DR OZDOWSKI: Quite often I am told that Villawood is the best of the detention centres. Do you have any experience of any other detention centres?
MRS GOW: No, personally I don't. That comment was made in our submission and it was based on discussions we had had with a number of the detainees that we have developed friendships with. They often will comment that Villawood is definitely the preferable detention centre.
DR OZDOWSKI: So they had some possible experience of some other detention centre?
MRS GOW: Many of them have been through other detention centres, either Port Hedland and/or Woomera or Curtin.
DR OZDOWSKI: So why do you think Villawood is better than the other ones
MRS GOW: My understanding of the main reasons seem to be that it is less isolated than many of the others so it's much easier for visitors to go in to see them, to take them things that they needs, extra food, extra clothing. Geographically it's not as isolated so I imagine - only trying to imagine what it might be to be a detainee that you are not simply in the middle of the desert, also I imagine in terms of climate it would be much less severe than say Woomera or Curtin.
DR OZDOWSKI: Now, what are their major complaints the detainees are making to you?
MS TYLER: Boredom, monotony of environment, or severe depression.
MS LESNIE: The children are saying that?
MS TYLER: The children are saying that.
MS LESNIE: Do they not go to school?
MS TYLER: If you were behind razor wire and you had virtually no children to play with, would you have any desire to learn when you are surrounded by depressive adults all day? There are approximately 500 detainees in Villawood at this present time. Only 16 are children. The children have such severe social isolation from their peers that this causes them great anxiety.
DR OZDOWSKI: What about the treatment of children by guards?
MS TYLER: I would like to ask the question in return? Do ACM have any training in child welfare? There seems to be quite a variation. Some guards are friendly, openly friendly, some empathetic, others are not.
DR OZDOWSKI: Did you hear any complaints about bad treatment of children by guards?
MS TYLER: Yes.
DR OZDOWSKI: What kind of bad treatment?
MS TYLER: Swearing at the children, just surly, abrupt, non empathetic behaviour towards the children. Some of the children are taken out on excursions, they have no social interaction with the community although they are outside the detention centre they are accompanied by guards. The role of the guards is to keep the children
DR OZDOWSKI: In uniforms?
MS TYLER: Not in uniforms. The guards are in uniforms.
DR OZDOWSKI: Okay.
MS TYLER: So the children are actually out in the community in a limited capacity but they have no opportunity to socially interact with anybody out there. The guards' job is to keep them in line, keep them together and so they take on a kind of punitive role for the children who are just trying to have a good time and they are severe. I've heard this from children and two people who observed an excursion that the guards did not smile, did not encourage the children to have a good time. They just acted as
DR OZDOWSKI: Yes, could you give me an example where excursions are taking place, where do they go to?
MS TYLER: They go to McDonalds, the zoo.
DR OZDOWSKI: How often do they go there?
MS TYLER: I think the excursions are about once a month.
DR OZDOWSKI: Once a month and all children can participate in them?
MS TYLER: No, no.
DR OZDOWSKI: How are children selected for such excursions.
MS TYLER: The children who mainly go out are aged under 12, the teenagers are not included.
DR OZDOWSKI: What is the reason for not including teenagers?
MS TYLER: I don't know.
DR OZDOWSKI: So how many children would we have there under 12, six, eight?
MS TYLER: May be six to eight, currently 16 children under the age of 18 in Villawood.
DR OZDOWSKI: Yes, and how many officers would accompany them for excursion?
MS TYLER: I'm not sure, at least two, at least.
DR OZDOWSKI: In uniforms?
MS TYLER: In uniforms.
DR OZDOWSKI: They travel by ACM car or a little small bus or how do they
MS TYLER: A little bus.
DR OZDOWSKI: What do children think about such excursions?
MS TYLER: The last one they went on to a children's museum, they came back and said they didn't enjoy it because they didn't - they were expected to walk into a place and have a good time. Nobody explained to them what this outing was about. They had no spontaneous interaction with anybody and the children's museum.
DR OZDOWSKI: Did a teacher or some kind of social worker going with children as well for this excursion?
MS TYLER: Not that I'm aware of.
DR OZDOWSKI: Did you hear any complaints about children being hit by guards?
MS TYLER: No.
DR OZDOWSKI: Did you hear any complaints about food or about access to religious facilities or any other issues?
MS TYLER: I don't think t