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Castan Centre for Human Rights Law
Detention, Children and Asylum Seekers: a comparative study*
Overview
This paper contains a comparison of the policies and procedures of Australia,
the United Kingdom, the United States and Canada for dealing with children
as asylum seekers. This comparison reveals two main differences.
* First, Australia is unique in having a mandatory detention policy which
applies to all asylum seekers without distinction. Section 196 of the
Migration Act 1958 (Cth) mandates detention for all persons - child or
adult - arriving in Australia without a valid visa, and prevents release
from detention otherwise than for removal, deportation or because a valid
visa has been issued. The other countries do have some limited detention
practices which may include adults and children whose immigration to those
countries is unauthorised. But in all the other countries there is a presumption
that children are in a special category and should be released into the
community as soon as practicable. In all those other countries, specific
policies are being developed to recognise the needs of child asylum seekers
both in detention (if any) and upon release.
* The second major difference is in the nature of the problem. In Australia
most children in detention have come with their families and they include
a substantial number of very young children. The forced migration of whole
families, including children, to Australia is a recent phenomenon which
is a direct result of the temporary protection visa (TPV) regime which
was introduced in 1999.1 As it does not allow family reunion it has led
to an increase in the number of families coming to Australia to seek asylum.
By contrast in the other countries efforts are concentrated on a marked
upsurge in unaccompanied or 'separated' child asylum seekers who tend
to be adolescents. There is a global trend to send the youngest members
of families away to give them a chance to survive in a new country - often
it is the case that the parents are no longer alive. Whilst there is also
an increase in such unaccompanied child asylum seekers in Australia, the
policies do not distinguish the needs of the two groups, accompanied and
unaccompanied child asylum seekers.
Australia
Current procedures
Each person whose arrival in Australia is unauthorised is placed in mandatory
and non-reviewable detention, regardless of age. This includes children
whether they are part of a family or unaccompanied minors. Detention continues
until such time as the individual is either recognised as a refugee and
granted a protection visa or removed from the country.2 Under new legislation
passed in September 2001, people arriving at 'excised offshore places'
are unable to apply for any valid visa and may be removed to a "declared
country", such a Papua New Guinea or Nauru.3 "Excised offshore
places" include the Ashmore and Cartier Islands, Christmas Island,
Cocos (Keeling) Islands and '...other parts of Australia's territory which
may be prescribed in the future under the Migration Act 1958 (Cth)."4
Otherwise the legislation provides for a hierarchy of temporary visas
depending upon how entry to Australia was effected: only those who come
directly from the country of persecution to Australia are entitled to
a permanent protection visa.5
In Australia there has been an increase in the number of families coming
to Australia as a direct result of the introduction of the 3 year temporary
protection visa (TPV) in 1999 which does not allow family reunion.6
Treatment of children whose arrival in Australia is unauthorised
The mandatory detention policy of the Australian government does not distinguish
between children and adults. According to the Minister for Immigration7
as of 1 February 2002, 365 children were being held in Australian detention
facilities, 13 of whom were classified as unaccompanied minors. Expressed
as a percentage of onshore asylum seekers during this period (about 12,000)
this is 4.85%. The South Australian Department of Human Services, through
its Family and Youth Services division, provides alternative care for
a further 9 unaccompanied minors. In addition, one unaccompanied minor
has been issued with bridging visa and has been placed in foster care.8
As recently as November 2001, however, there were 582 children in immigration
detention, 53 of whom were unaccompanied.9 The Minister for Immigration
and Multicultural and Indigenous Affairs, Philip Ruddock MP, attributes
the decrease in numbers of children in detention to: the drop in numbers
of unauthorised arrivals; an increase in people being released from detention,
'particularly unaccompanied minors; and minors turning 18 years of age
while in detention.'10
As a matter of policy, the Government considers it is more important
to keep children with family members or people of the same nationality
than it is to release them from detention on a bridging visa into the
community:
'...it is in the best interests of the child for them to remain with their
parents, family or fellow country persons. As such, children are held
in detention with their parents so that they can remain in family groups.'11
This policy is maintained despite recent findings of the Human Rights
and Equal Opportunity Commission (HREOC) that '...detention is not an
appropriate environment for children.'12
Detention
The immigration detention centres are run by Australasian Correctional
Management (ACM), a private company, and are monitored by the Department
Immigration and Multicultural and Indigenous Affairs (DIMIA) which maintains
an official presence at each of the centres. The standard of living conditions
in immigration detention centres and services provided to detainees are
outlined in the Immigration Detention Standards (IDS), developed by the
Department in consultation with the Commonwealth Ombudsman's office. The
IDS places special emphasis '...on the sensitive treatment of the detention
population which may include torture and trauma sufferers, family groups,
children and the elderly, persons with a fear of authority, and [refugees].'13
Provision of services, however, is not unconditional. The Minister notes
that the detention centres '...rely on the cooperation of detainees to
ensure the smooth running and good order of the centres'.14
The IDS states that detained children and adults are to be provided with
education services, including English language instruction, cultural classes
and sporting activities. Health care is to be provided soon after individuals
are detained. Dental and hospital services are to be provided where required
and medical care is available around the clock. Qualified chefs, in consultation
with dieticians, prepare three meals per day. Detainees can assist in
formulating culturally appropriate menus through the Detainee Representative
Committees. Milk is to be available for children to drink. Recreational
facilities such as playgrounds, toys and games are to be provided. 'Individually
tailored management plans' are to be developed for all unaccompanied minors,
taking into consideration special needs such as educational and social
requirements.15
Notwithstanding the existence of these standards there is evidence that
detention is having a damaging effect on children's mental and physical
wellbeing. Like adults, children may be detained for prolonged periods
while their asylum claims are being processed.16 HREOC officers, who recently
completed a fact-finding mission at Woomera Immigration Reception and
Processing Centre (IRPC), the largest of the immigration detention centres,
found that the 236 children detained there were living in 'an atmosphere
of despair...due to the length of time in detention and the concomitant
uncertainty over status'.17 As a response, the children had engaged in
various acts of self-harm including lip sewing, slashing, ingestion of
shampoo, attempted hanging and threats of self-hurt.18
The existence of IDS standards does not guarantee that they are adhered
to. Another HREOC finding related to schooling:
'HREOC officers also observed that despite ACM's efforts to provide schooling
opportunities for the children, this is confined to those aged twelve
and under, and is not comparable in any way to the education received
by Australian twelve year olds. There are a number of children over 12
years of age who virtually receive no schooling at all. All children are
taught in the one classroom. Education is provided for a total of only
two hours a day, four days a week.'19
"Alternative care"
DIMIA makes reference to three types of 'alternative care', two of which
concern unaccompanied children whilst the third provides for children
and their mothers. Of the three types of care, one is truly an alternative
to detention although it currently involves only one child in Australia,
one is ambiguous at to the nature of care it provides and the third is
most certainly a form of detention.
There is one exception to section 196 under which children may be released
from detention. The Minister may issue a "bridging visa" under
certain guidelines to children, people over the age of 75 years of age,
spouses of Australian citizens or persons with a special health need or
with previous experience of torture or trauma.20 This discretion is rarely
exercised with respect to children. Currently the Minister has issued
a total of one bridging visa to an unaccompanied child who has been placed
in foster care arrangements within the community.21
In January 2002, 9 unaccompanied children were removed from Woomera IRPC
and placed in the care of the South Australian Department of Human Services.
Whilst it is unclear what type of accommodation is being provided to these
children (ie foster care, hostel-style accommodation, etc), it should
be noted that the children were removed because the Government '...needed
to protect...[them] from the coercion of other adult detainees...throughout
the recent protest action at Woomera detention centre.'22 The children
were not removed because it was considered that detention is not in the
best interests of children, especially ones without family members.
The 'Woomera Alternative Detention Arrangements for Women and Children
Project' was established in August 2001. The DIMIA Fact Sheet describing
the project states:
'The Project enables some women and their children to live in family-style
accommodation away from the IRPC, while remaining in immigration detention.
As unlawful arrivals in Australia, Australian law requires that they remain
in detention while their immigration status is resolved.'23
The project is limited to 25 women and children and the conditions of
the project permit only women who have a family member remaining at the
IRPC to participate. While their daughters are allowed to be a part of
the Project, their sons over the age of 12 are barred. The 25 participants
reside in four houses which they run themselves. They may visit each other
but must arrange with authorities if other people wish to visit them.
The family members remaining at the IRPC may not visit the Project. Outings
to local shops, cinema and the local swimming pool are organised. Children
in the Project participate in the IRPC education program although DIMIA
is assessing the possibility of enrolling them in local schools.24
United Kingdom
Current procedures
Unlike Australia in the UK there is no policy of mandatory detention although
there is provision for short periods of detention for some categories
of asylum seekers considered to be "risky". Under the new White
Paper referred to below it is stated that detention is to be used only
as a last resort before removing individuals whose asylum applications
have failed.
Because of this context, the main focus of relevant UK policy is on unaccompanied
or 'separated' children. This language is important as it assumes that
the primary status of the child arises from its position as a member of
a family. The same language is used in Canada as is explained below.
The Home Office has stated:
'There is an undertaking that unaccompanied children should never be detained
other than in the most exceptional circumstances and only for a very short
period.'25
Nonetheless, because of unsatisfactory methods of resolving age disputes,
some unaccompanied asylum seeking children find themselves detained in
UK immigration detention facilities for short periods. It should be noted,
however, that it is estimated that between 1994 and 2001, 220 children
had spent time in UK detentions centres.26 As the annual figure for asylum
seekers to the UK is currently around 90,000 this figure pales into insignificance
in comparison to Australia.
The general policy is that all children who arrive in the UK without
a valid visa - including those seeking asylum - who are separated from
their parents and other family members are cared for under the 1989 Children
Act. The Home Office works together with the Department of Health and
local authorities to provide foster and residential placements as well
as access to legal, health and social services to the vast majority of
unaccompanied children who arrive in the UK seeking asylum. The children
attend local schools. Under the Government's "exceptional leave policy",
children whose asylum applications have failed and for whom adequate care
in their country of origin can not be arranged are given leave to remain
in the UK until their eighteenth birthday.
Problems with the current system
As in Australia it seems that there in a tension between the ideal and
the reality. Children who are older (16 - 17 years old, some as young
as 15) are sometimes placed in bed and breakfast accommodation. A report
released in July 2001, titled Separated Children in the UK: an Overview
of the Current Situation, notes that often this type of accommodation
is unsupported and the services of a social worker are not provided. The
report concluded that this failing is a question of funding:
'No doubt this is in part related to anomalies in the funding local authorities
receive from central Government for the care of separated children. For
separated children the level of support they receive from the local authority
can be a lottery, compounded by differences in financial and educational
entitlements related to their immigration status.'27
Each year, 4,000 - 5,000 children are referred to the Panel of Advisers
for Unaccompanied Refugee Children, a non-statutory service funded by
the Home Office to provide short-term assistance to separated children.28
Expressed as a percentage of annual asylum seekers to the UK this is about
5%. This figure does not include those children who arrive with their
family and seek asylum in the UK.
Government's response
On 7 February 2002, the Home Secretary, David Blunkett MP, presented the
Government's new White Paper on asylum, migration and citizenship to Parliament.
Titled Secure Borders, Safe Haven, the White Paper sets out the details
of a policy which responds to the current-day challenges of migration
and seeking asylum, largely associated with globalisation.29
Chapter Four of the White Paper deals with asylum generally. A sub-section
addresses the plight of unaccompanied asylum seeking children, stating
that the Government '...will continue to offer protection and appropriate
levels of care to children under the age of 18 who have been separated
from their parents and other family and who are genuinely in need of protection.'30
The following measures are proposed by the White Paper:
* children separated from their parents and other family members will
continue to be cared for under the 1989 Children Act;
* the Home Office will work with local authorities to improve the care
and support arrangements for unaccompanied asylum seeking children by
improving information exchange and models of best practice;
* the Home Office will also explore possibilities for the joint commissioning
(together with relevant local agencies) of suitable accommodation for
unaccompanied children who are 16 - 17 years old on arrival;
* more effective mechanisms will be introduced to deal with adults posing
as children including improvement of current age assessment procedures;
and
* unaccompanied children may be interviewed about their asylum applications
under a wider set of circumstances than is currently the case. It is hoped
that children who are given the 'opportunity to tell their story' will
provide the Home Office and local authorities a clearer picture of the
child's background and experiences and in turn enable them to provide
more appropriate levels of care and protection in each case. Only staff
who have been properly trained in this area will be able to interview.
USA
Current procedures
In 2001 the United States (US) received about 83,000 applications for
asylum.31 The US does not have a policy of mandatory detention for all
unauthorised arrivals or aliens. It does however detain some categories
of "illegal immigrants" or aliens, and this may include asylum
seekers. It has been estimated that in early 2001 about one third of the
20,000 persons in some form of immigration detention were asylum seekers.32
About 40% of detained asylum seekers are paroled.33 These figures show
that only a small proportion of asylum seekers are subject to immigration
detention.
Overview of procedures for dealing with illegal immigration to the
US
The Immigration and Naturalization Service (INS) is responsible for dealing
with illegal immigration to the US. "Aliens", as they are known
in the US, who are apprehended at or near US borders by Border Patrol
Agents, are usually transported to Border Patrol Stations where administrative
or criminal processing begins. If the legal requirements for mandatory
detention do not apply (ie the alien is not placed in expedited removal
or proceedings or is not chargeable as a terrorist or as a criminal) and
if there is no risk of flight or of danger to the community, the alien
may be released into the community under either bail or parole conditions.
In a recent statement to a Senate committee review of Department of Justice
immigration detention policies, INS representatives said, 'In cases where
an arriving alien asserts an asylum claim, INS policy favors release from
custody if the alien is found to have a credible fear of persecution.'34
Treatment of unaccompanied alien children
Under the Immigration and Nationality Act, the Immigration and Naturalization
Service (INS) is responsible for detaining unaccompanied juveniles who
enter the US illegally. Its fact sheet on its juvenile detention and shelter
care program states that as an initial measure, unaccompanied children
arriving in the US illegally are placed in custody. Priority is placed
on releasing children to parents already in the US, legal guardian or
adult relative. Where no such arrangement can be met, the INS may release
the child to a responsible adult designated by the parent or legal guardian
in a sworn affidavit or to a licensed child-care facility such as foster
care or a boarding home.35 Nonetheless, in 2000, authorities detained
nearly 4,700 unaccompanied children arriving at US borders without appropriate
documentation.36 Expressed as a percentage of asylum seekers (and this
figure does not distinguish them from "illegal immigrants")
this is about 5.7% (that is, slightly higher than the UK figure).
The standard of detention facilities and treatment of children at the
centres is a point of strong contention, with policy objectives not being
fulfilled in reality. The INS states that its standard, nationwide policy:
'...requires that juveniles not released [from initial custody] be placed
only in facilities that have separate accommodations designed for their
needs... All facilities are state-licensed and, as such, meet or exceed
state requirements in the areas of safety, education, recreation and physical
exercise, nutrition, and medical and counseling services.'37
The policy further prohibits detaining unaccompanied alien children in
"secure juvenile facilities" longer than 72 hours.38
According to Amnesty International, however, the INS policy requirements
are not always being met:
'In 2000, the INS detained nearly 4,700 [unaccompanied alien] children...The
INS detains these children at various sites around the country; many of
them are detained in juvenile and county jails.'39
Amnesty further claims that some of these children wear prison uniforms
and are pat-searched or even strip-searched, sometimes handcuffed or shackled,
and denied access to outdoor activities. Some children are allegedly detained
in solitary confinement.40 Dennis McNamara, former Director of the UNHCR
Division of International Protection, adds that in the US, unaccompanied
children are often detained 'for lengthy periods...rarely understanding
what was happening to them... [and are] subjected to a rigid and punitive
environment.'41 At present, unaccompanied alien children have no right
to paid legal counsel or to the services of child welfare professionals.42
Unaccompanied children seeking asylum are acknowledged as having unique
needs and experiences. In December 1998, the INS released its Guidelines
for Children's Asylum Claims, written to assist INS officers in evaluating
unaccompanied children's asylum applications. The guidelines suggest 'child-sensitive'
methods for interacting with children during their asylum or refugee interviews,
designed to provide the children with a more comfortable, secure environment
in which they can "tell their story". It should be noted, however,
that the guidelines '...do not change the law in any way.'43
Proposals for change
On 22 January 2001, Senator Dianne Feinstein introduced "S.121",
a bill titled Unaccompanied Alien Child Protection Act of 2001, to the
Senate. The bill centres on establishing '...an Office of Children's Services
within the Department of Justice to coordinate and implement Government
actions involving unaccompanied alien children.'44 The same day, the bill
was read twice and referred to the Committee on the Judiciary. Hearings
to examine the bill were not conducted by the Committee's Immigration
Subcommittee until 28 February 2002, some 13 months later.45
The rationale behind the bill is that responsibility for the care and
custody of unaccompanied children and the responsibility for deciding
the outcome of a child's case should lie with two separate bodies, the
new Office of Children's Services (OCS) and the INS respectively, so as
to remove any conflict of interest. Other measures proposed by the bill
include:
* establishing an "Interagency Task Force on Unaccompanied Children";
* releasing unaccompanied alien children found in the US into the wider
community and placing them under the jurisdiction of the OCS;
* placing priority on family reunification or foster care placement over
detention and improving conditions in detention facilities which are designed
for unaccompanied alien children;
* prohibiting detention in adult or delinquent children facilities (except
in the case of violent children);
* requiring the OCS to develop policies that would prohibit shackling,
handcuffing, or other restraints on children; placing children in solitary
confinement; and subjecting children to pat or strip searches;
* prohibiting the repatriation of a child to a country unless a voluntary
agency has conducted an assessment of the conditions in that country and
the Office has assessed the suitability of repatriating the child;
* instructing the OCS to provide each child with legal counsel and with
a guardian ad litem (the latter must be provided within 72 hours of the
OCS taking custody of the child);
* amending the Immigration and Nationality Act to create a special immigrant
juvenile visa for immigrant children in certain circumstances who are
already present in the US;
* protecting children who "age-out" while awaiting final determination
of their immigration applications;
* endorsing the INS Guidelines for Children's Asylum Claims in their application
to unaccompanied alien children in refugee-like circumstances and directing
the Attorney General to provide immigration officers with related training;
* amending the Immigration and Nationality Act to exempt unaccompanied
alien children from certain removal and asylum filing provisions; and
* directing the Comptroller General to assess and report on the performance
of the OCS.
Should the bill be passed and subsequently enacted, the plight of unaccompanied
alien children arriving in the US, including those seeking asylum, will
be forever changed. The bill has the wide support of American and international
human rights and child advocacy groups.
Canada
Current procedures
Canada does not have a mandatory detention policy. However like the UK
it does detain some categories of "risky" asylum seekers considered
to have "manifestly unfounded" claims or to be a security or
other risk.
Detention of child asylum seekers in Canada is considered highly undesirable
and strictly a "last resort" measure. Nonetheless, grounds for
detention - failure to establish identity, being a danger to the public
or posing a security risk, and being unlikely to appear for immigration
proceedings or removal - apply equally to children and adults. Nothing
in Canadian law prohibits the detention of children. During 1999-2000,
338 children were detained: 252 were held with a parent (usually the mother),
86 were separated children. Of the 338 children, 75% were detained for
one day or less.46 This figure of 338 expressed as a percentage of the
annual number of asylum seekers (111,499) is .3% - a miniscule phenomenon
in comparison to Australia's child refugee population. However, when one
of the authors of this report was in Canada in October 2001, refugee groups
were expressing concern about the increasing number of unaccompanied minors
or "separated children" who were subject to detention.
Immigration procedures as they relate to separated children
Citizenship and Immigration Canada (CIC) is responsible for dealing with
people arriving at a Canadian Port of Entry (POE). When a child arrives,
CIC must ascertain two matters: whether the child will be admitted to
Canada and to the refugee determination procedure; and whether the child
is unaccompanied (or "separated") and therefore in need of special
attention. Like adults, children may make a claim for refugee status at
the POE or after entry into Canada. No child may be removed from Canada
without representation. As such, the Immigration and Refugee Board (IRB)
appoints "designated representatives" to all children without
a parent.47 In 1996, the IRB adopted Guidelines on Child Refugee Claimants
to assist adjudicators to take the special needs of asylum-seeking children
in account when determining their applications.48
Most separated children arriving in Canada are met by someone at the
POE or have the phone number and address of someone to contact. In such
cases, the immigration officers assess the nature of the relationship
and whether it is in the best interests of the child to release him or
her to that person. The proportion of children arriving on their own (or
with siblings or other children) with no contact person in Canada is relatively
small.49 Where a child arrives alone like this or where there are concerns
about the accompanying adult or about the person meeting the child at
the POE, immigration officers have a duty to contact an appropriate child
welfare agency.
As child protection and welfare falls under provincial (as opposed to
federal) jurisdiction, treatment of separated asylum seeking children
varies from province to province.50 Types of placements for children include
foster care, group homes, and semi-independent living.51 A UNHCR report
titled Separated Children Seeking Asylum in Canada, written in July 2001,
notes that many of the welfare agencies '...lack the expertise required
to address the needs of separated asylum-seeking children'.52 An increased
strain on resources - owing to federal-provincial tensions over funding
and an overall jump in the number of Canadian children being cared for
by welfare agencies - has meant that the particular needs of separated
asylum-seeking children are not being met.
The conditions of the detention centres at which children are held vary.
In British Columbia, children under 18 years of age are detained in a
youth offender facility. In Ontario, the detention centre has been described
as '...a bleak environment.'53 There are no recreational facilities for
children and detainees must remain in their rooms except during set periods
such as meal times. Limited medical services are provided. By contrast,
the detention centre in Quebec, a former penitentiary, is described as
being '...in good condition, well lit and maintained.'54 Detainees have
freedom of movement until 11:30pm. Medical, educational and recreational
services are amply provided. Nonetheless, the UNHCR report makes the following
observations:
'The immigration detention centres are not appropriate places to detain
children, let alone separated asylum-seeking children. They have none
of the facilities required for children, and CIC has no particular child-care
expertise. Young offender correctional institutions are not appropriate
either, as their services are not geared to the particular needs of separated
asylum-seeking children.'55
Legislative reform
On 1 November 2001, the Immigration and Refugee Protection Act received
Royal Assent. Whilst the Act deals with a range of immigration issues,
the tone of the legislation clearly reflects a commitment to the value
that sanctuary should be provided to those who have a well-founded fear
of persecution:
'The objectives for the refugee program stress that refugee protection
is in the first instance about saving lives and that providing fair consideration
to those who come to Canada claiming persecution is a fundamental expression
of Canada's humanitarian ideals.'56
The main areas of reform which specifically relate to refugees include
placing a priority on family reunification; and bolstering refugee protection
through a fairer, more efficient determination process.57
Several safeguards for children are built into the legislation, which
are underscored by a commitment to protecting the best interests of the
child. For example, when deciding whether or not to grant foreign permanent
resident status on humanitarian or compassionate grounds, the Minister
is required to take into account the best interests of the child who is
directly affected by the decision.58 Similarly, section 67(1)(c) requires
that the Immigration Appeal Division take into account the best interests
of a child who will be directly affected by its decision.59 The UNHCR
report commends this approach:
'The inclusion of a best interests test in certain aspects of...[the Act]
is a positive step towards the development of child welfare standards
within immigration law.'60
Section 60 affirms the principle that children should be detained only
as a measure of last resort, taking into account the best interests of
the child. Regulations to be made under the Act61 will set out factors
to be considered with respect to the detention of a child, including:
* whether alternative care arrangements can be made with local child care
agencies or child protection services;
* the length of the anticipated detention;
* whether the child is at risk of being accessed by the criminally organised
smugglers who brought the child to Canada in the first instance;
* the nature of the detention facility (ie whether there are prison-like
conditions and whether children can be separated from adults); and
* the availability of services such as education, counselling and recreation.
With regards to schooling, under section 30(2), a foreign minor child
in Canada does not require an authorisation to study at the pre-school,
primary or secondary level unless he or she is the minor child of a temporary
resident not authorised to work or study in Canada. This will guarantee
immediate entry to school for the children of those seeking refugee status.62
The UNHCR notes, however, that '...separated asylum-seeking children are
likely to need the help of an experienced adult to enrol in school.'63
Conclusion
Several conclusions can be drawn from this study:
1. The problem of children in detention is one which the Australian government
has created through its policies in relation to mandatory detention and
temporary visas, which do not permit family reunion. The large number
of children in detention in Australia is a direct product of those policies.
2. Although Australia is receiving a similar proportion of child refugees
as the United Kingdom and the USA, currently the issue in Australia is
mainly with accompanied children, whereas in those other countries the
problem mainly relates to unaccompanied child asylum seekers. It should
be noted that in Canada where the government has not introduced a deterrent
temporary visa regime, there is only a small number of child asylum seekers.
3. This study shows that Australia is alone in not having special legislation
and policies which recognise the needs of child asylum seekers, in particular
that it is in their "best interests" to reside in the broader
community. The Australian government should develop and implement policies
which are consistent with those in the other jurisdictions under study.
The policies in those jurisdictions are compatible with the recognised
human rights of children. Those of the Australian government are not.
4. It can be anticipated that the number of unaccompanied child asylum
seekers will increase globally and in Australia. Canada is beginning to
experience this trend. The Australian government should foreshadow this
and put in place laws and policies which recognise the different needs
of the two separate groups of child asylum seekers, accompanied and unaccompanied.
5. The study shows that in common with other countries there is a problem
in ensuring compliance with performance standards relating to child asylum
seekers. This suggests the need for close monitoring of the standards.
* Submission prepared by Gabi Crafti and Susan Kneebone on behalf of the
Castan Centre for Human Rights Law, Monash University.
1 Temporary Visa subclass 785 was created by amendment to the regulations
under the Migration Act 1958 (Cth) in 1999.
2 Sections 46A and 196 Migration Act 1958 (Cth).
3 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) and
Migration Amendment (Excision from Migration Zone) (Consequential Provisions)
Act 2001 (Cth).
4 Department of Immigration and Multicultural and Indigenous Affairs,
Fact Sheet 65: New Humanitarian Visa System, 14 January 2002. See www.immi.gov.au.
5 Migration Amendment (Excision from Migration Zone) (Consequential Provisions)
Act 2001 (Cth).
6 Temporary Visa subclass 785 was created by amendment to the regulations
under the Migration Act 1958 (Cth) in 1999.
7 P Ruddock MP, Minister for Immigration and Multicultural and Indigenous
Affairs, Women and Children in Detention. See www.minister.immi.gov.au/detention/women_&_children.htm.
8 Op cit, n 4.
9 Note: the figures given in the Report on Visits to Immigration Detention
Centres by the Joint Standing Committee on Foreign Affairs, Defence and
Trade (2001) Chapter 5 contains much higher figures.
10 Op cit, n 4.
11 P Ruddock MP, Minister for Immigration and Multicultural and Indigenous
Affairs, Women and Children in Detention. See www.minister.immi.gov.au/detention/women_&_children.htm.
12 HREOC, Woomera Immigration Detention Centre: report of visit by HREOC
officers, media statement by President Professor Alice Tay AM and Dr Sev
Ozdowski, Human Rights Commissioner OAM, 6 February 2002.
See www.hreoc.gov.au/media_releases/2002/05_02.html.
13 Ibid.
14 Ibid.
15 Ibid.
16 HREOC National Inquiry into Children in Immigration Detention Background
Paper 3: Mental Health and Development. See www.hreoc.gov.au/human_rights/children_detention/background/mental_health.html.
17 Op cit, n 12. The fact-finding mission was part of HREOC's National
Inquiry into Children in Immigration Detention, which commenced in November
2001 and which is still in progress.
18 Ibid.
19 Ibid.
20 HREOC National Inquiry into Children in Immigration Detention Background
Paper 1: Introduction.
See www.hreoc.gov.au/human_rights/children_detention/background/introduction.html.
21 Op cit, n 4.
22 Ibid.
23 Department of Immigration and Multicultural and Indigenous Affairs,
Fact Sheet 83: The Woomera Alternative Detention Arrangements for Women
and Children Project, 3 August 2001. See www.immi.gov.au.
24 Ibid.
25 Ibid, p 56.
26 Ibid.
27 W Ayotte and L Williamson Separated Children in the UK: an overview
of the current situation, commissioned by the British Refugee Society
and Save the Children, July 2001, p 7.
See www.refugeecouncil.org.uk/downloads/separated%20children.doc.
28 Ibid, p 17 and Where are the Children? A mapping exercise on the numbers
of unaccompanied asylum-seeking children in the UK: September 2000 - March
2001 carried out by the Refugee Council and the British Agencies for Adoption
and Fostering, p 18. See www.refugeecouncil.org.uk/downloads/Where%20are%20the%20children.doc.
29 Home Office, Secure Borders, Safe Haven: Integration with Diversity
in Modern Britain, CM 5387, 7 February 2002. See www.refugeecouncil.org.uk/downloads/white_paper/white_paper.pdf.
A consultation period on the White Paper will last until 21 March 2002
at which point a Bill on asylum, migration and citizenship will be presented
to Parliament. The Bill is expected to be passed before the Queen's Speech
in November.
30 Op cit, n 29, p 61.
31 UNHCR website.
32 A Millbank, 'The Detention of Boat People', Current Issues Brief 8
2000-01, Parliamentary Library (available at http://www.aph.gov.au/library/pubs/cib/200-01/01cib08.htm).
33 Ibid.
34 Statement of Joseph Greene, Acting Deputy Executive Associate Commissioner
for Field Operations and Edward McElroy, District Director, New York,
US Immigration and Naturalization Service, before the House Committee
on the Judiciary Subcommittee on Immigration and Claims regarding a Review
of Department of Justice Immigration Detention Policies, 19 December 2001,
2237 Rayburn House Office Building, 2:00pm, p2. See www.ins.gov.
35 US Department of Justice, Immigration and Naturalization Service Fact
Sheet INS' Juvenile Detention and Shelter Care Program, 7 September 2000.
See www.ins.usdoj.gov.
36 Amnesty International, Refugee Children: The Unaccompanied Alien Child
Protection Act (2001).
See www.amnesty-usa.org/action/refugee_usa08202001.html.
37 Op cit, n 36, p 2.
38 Ibid. NB, this prohibition applies unless the child: is an escape risk;
is at risk from harm; is a delinquent or is facing a delinquency hearing;
may be or has been charged with or convicted of a crime; or has shown
'disruptive or violent behaviour while in a licensed program'. The prohibition
is further limited by the availability of 'juvenile care space'.
39 Op cit, n 37.
40 Ibid.
41 D McNamara, Promises Broken. See www.hrw.org/campaigns/crp/promises/refugees.html.
42 E E O'Connor "Current Development: Developments in the Legislative
Branch" 16 Geo. Immigr. L.J. 259 at 259.
See also Editorial, "1,000 child immigrants worse off then Elian"
in USA Today, 28 February 2000, p 18.
See also J Becker "The other immigrant children" in The Miami
Herald, 7 January 2000. See www.hrw.org/editorials/2000/crd-0107-mh.htm.
43 US Department of Justice, Immigration and Naturalization Service News
Release, INS Issues New Guidelines for Children's Asylum Claims, 10 December
1998. See www.ins.gov/graphics/publicaffairs/newsrels/kidsRel.htm.
44 Unaccompanied Alien Child Protection Act of 2001 (S.121). See http://rs9.loc.gov/cgi-bin/bdquery/z?d107:s.00121:
45 When transcripts and/or analysis of the hearing become available, this
study will be updated.
46 Ibid, p 19. 252 children were detained for one day or less; 24 were
detained for less than 15 days; 42 were detained for over 30 days.
47 See the CIC website at www.cic.gc.ca/english.
48 IRB of Canada, Child Refugee Claimants: Procedural and Evidentiary
Issues, Ottawa, 30 September 1996.
See www.irb.gc.ca.
49 UNHCR, Separated children seeking asylum in Canada: a discussion paper
adapted from an original report researched and written by Wendy Ayotte,
July 2001, p 15. See www.unhcr.ch/.
50 Ibid.
51 Ibid, "Chapter 6: Guardianship and Care of Separated Children",
pp 44 - 60.
52 Ibid, p 4.
53 Ibid.
54 Ibid.
55 Ibid, p 23.
56 Ibid.
57 Ibid. Other areas of reform which broadly relate to the immigration
process deal with: simplifying the legislative framework and creating
more coherent procedures, selection system for skilled workers, the criteria
for permanent resident status and '...maintaining the safety of Canadian
society and respect for Canadian norms of social responsibility.'
58 Section 25(1) Immigration and Refugee Protection Act 2001.
59 CIC Canada, What is new in the proposed Immigration and Refugee Protection
Act.
See www.cic.gc.ca/english/about/policy/c11-new.html.
60 Op cit, n 50.
61 Pre-publication of the final set of proposed Regulations has been delayed.
Once released, they may be viewed at www.cic.gc.ca/english.
62 Op cit, n 50.
63 Ibid.
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