4 March 2016
Committee on the Migrant Workers and Committee on the Rights of Child
Office of the United Nations High Commissioner for Human Rights
Sent by email: cmw@ohchr.org
Dear Executive Director
Submission for general comment on the rights of the child in the context of migration
The Refugee Advice and Casework Service (RACS) welcomes the opportunity to provide this
submission to the Committee on the Rights of the Child and the Committee on Migrant Workers for a
joint General Comment on the human rights of children in the context of international migration.
Established in 1987, RACS is the leading provider of free, expert legal services to asylum seekers and
refugees in New South Wales. Through individual casework and advice sessions, community education
and public advocacy, RACS strives to ensure that individuals and families at risk of persecution or other
forms of harm gain access to equal and fair representation before the law, and are granted protection by
Australia in accordance with Australia’s international obligations.
Our experience in advising asylum seekers on Australian refugee and migration law allows us to observe
the extent to which Australia extends to non-citizen children the rights and freedoms that our legal
system treats as indispensable in relation to citizens. In this respect, a review of certain provisions in the
Migration Act 1958 (the Migration Act) and related legislation reveals significant encroachments upon,
and departures from, the rights and freedoms of children who seek asylum in Australia.
Our submission is not an exhaustive examination of the operation of Australian migration legislation but
describes some of the provisions we consider to be relevant to the inquiry. RACS works with children
who have arrived in Australia with their families, as well as those who arrived unaccompanied without
any parent or guardian. These submissions will primarily focus on children who have arrived in Australia,
by boat and their experience of seeking asylum in Australia.
Historically RACS has worked in conjunction with Industry partners in developing guidelines for legal
representatives working with children and young people seeking asylum. RACS has also established a
dedicated legal role for working with children, predominantly unaccompanied children. This program has
seen RACS represent children in the community, in detention centres in Australia and those who are
detained in Offshore Processing Centres (OPC).
Executive Summary
The Convention on the Rights of the Child (CROC) is one of the core human rights treaties that
underpins our international human rights framework. The CROC provides a critical cornerstone for
protecting children’s rights and monitoring the laws and policies of States towards children.
The fundamental principles that underpin the CROC framework are non-discrimination, survival and
development, protection, participation, and the best interests of the child.
The latter is probably the most important in any discussion of the unaccompanied children and noncitizen children on whose behalf this submission is made. Enshrined in Article 3(1) it is further reinforced
by Article 18(1) which states “the best interests of the child will be [the legal guardian’s] basic concern”.
In light of this, RACS submits that Australia’s present migration legislation in regards to the treatment of
unaccompanied minors and non-citizen children generally falls short of the human rights enshrined under
CROC.
1-3 Eurimbla Ave
Randwick NSW 2031
T: 02 8355 7227 F: 02 8004 3348
E: admin@racs.org.au W: www.racs.org.au
RACS
CMW/CROC: The rights of the child in the context of migration
Some of the key rights relevant to the children seeking asylum that we make this submission in relation
to under the CROC include:







legal guardian(s) of a child must have as the primary consideration the best interests of the
child (Art 3);
children should not be detained unlawfully or arbitrarily (Art 37(b));
children must only be detained as a measure of last resort and for the shortest appropriate
period of time (Art 37(b));
children in detention:
o should be treated with respect and humanity, and in a manner that takes into account
their age and developmental needs (Art 37(c)); and
o should have the right to challenge the legality of their detention (Art 37(d)).
children seeking asylum have a right to protection and assistance – because they are an
especially vulnerable group of children (Art 22);
children have a right to family reunification (Art 10); and
children who have suffered trauma have a right to rehabilitative care to promote physical and
psychological recovery and social reintegration (Art 39).
We also make this submission in relation to the following rights under the CROC:






protection from all forms of physical or mental violence (Art 19);
the highest attainable standard of physical and mental health (Art 24);
special care for children with disabilities (Art 23);
education (Arts 28 and 29);
rest, recreation and play (Art 31); and
special protection and assistance for children who have been separated from their parents (Art
20).
We submit that the aforementioned human rights under the CROC relate directly to the children we
represent and assist at RACS, and as such we are well placed to make comment on the harm that arises
from the shortcomings of Australia’s migration legislation and policies in relation to those rights.
Article 3(1) - The best interests of the child will be [the legal guardian’s] primary concern
Under the current system of guardianship the Minister of Immigration and Border Protection (the
Minister) has ‘the same rights, powers, duties, obligations and liabilities as a natural guardian of the
child would have’.1 At the same time, under the Migration Act, the Minister is responsible for
administering a wide range of powers and functions, including determining visa applications, making
decisions about whether to detain children or release them from detention, whether to transfer children to
regional processing countries, and whether to remove children from Australia.
RACS is concerned that the Minister’s responsibilities as the legal guardian of unaccompanied noncitizen children at times may conflict with the Minister’s responsibilities in administering the Migration Act.
In such instances, courts have held that the Minister’s responsibilities under the Migration Act take
precedence over the Minister’s responsibilities under the Immigration (Guardianship of Children) Act
1946 (Cth).2
Further, the Minister can delegate any of his or her powers or functions as legal guardian to any officer or
authority of the Commonwealth or of any State or Territory and can also place a non-citizen child in the
custody of any person who is willing to act as custodian of that child and who, in the Minister's opinion, is
a suitable person to be the custodian of that child.3
There is an inherent conflict of interest between the Minister's role as the legal guardian of
unaccompanied children who arrive in Australia by boat and the Minister’s responsibilities under the
Migration Act, including the responsibility for detaining a child, making decisions about whether to
1
Immigration (Guardianship of Children) Act 1946 (Cth), s 6(1).
Australian Churches Refugee Taskforce (author Jennifer Basham), Protecting the Lonely Children:
Recommendations to the Australian Government and the UN Committee on the Rights of the Child with respect to
unaccompanied children who seek asylum and refuge in Australia (July 2014) 20; Crock, Mary and Kenny, Mary
Anne, ‘Rethinking the Guardianship of Refugee Children after the Malaysian Solution’ (2012) 34(3) Sydney Law
Review 437, 453; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365;
Odhiambo (2002) 122 FCR 29; Plaintiff M168 litigation (2011) 279 ALR 1; WACA v Minister for Immigration and
Multicultural Affairs (2002) 121 FCR 463.
3
Immigration (Guardianship of Children) Act 1946 (Cth) s 7(1).
2
2
RACS
CMW/CROC: The rights of the child in the context of migration
release a child from detention, making decisions about whether to transfer a child to a regional
processing country, deciding whether to allow a child to apply for a visa, deciding whether to grant or
refuse a visa, and deciding whether to remove a child from Australia. The conflict of interest in the
Minister’s role as guardian has clearly arisen in the context of decisions regarding whether a child should
be exempt from regional transfer. Departmental policy regarding pre-transfer assessments, including the
Best Interests Assessment (BIA), explicitly states that the best interests of an unaccompanied child may
be outweighed by other factors.4
RACS is also seriously concerned about the assertion that the Minister’s guardianship responsibilities
cease to apply once an unaccompanied child has been transferred to a regional processing country.
RACS agrees with the UNHCR that the physical transfer of asylum seekers from Australia to offshore
regional processing countries does not extinguish the responsibility of the transferring state. 5
RACS submits that the Australian government has not put in place appropriate measures to ensure that
special care and protection is provided to unaccompanied children seeking refugee status as
contemplated by article 20 of the CROC.
Article 37(a) – Cruel, inhuman or degrading treatment
This prohibition relates to acts causing physical pain and mental suffering.6 The UN Human Rights
Committee has highlighted the negative impact of prolonged detention upon individuals, notwithstanding
the availability of health care and mental support services.7 Protracted arbitrary detention can also
amount to inhuman or degrading treatment based on a combination of the arbitrary character of
detention, its indefinite duration, the refusal of authorities to provide individuals with information and
procedural rights, and the difficult conditions of detention which cumulatively inflict serious psychological
harm.8
We also raise concerns regarding reports of use of excessive force in the detention environments,
such as that of the Guardian of April 24 20149 which detail allegations of Nauru guards assaulting
children in the detention camp. As well as the AHRC Report detailing the transfer of
unaccompanied children within camps on Christmas Island.
The Committee against Torture has expressed concern about Australia’s policy of transferring asylum
seekers to the Nauru OPC, noting that “[t]he combination of … harsh conditions, the protracted periods
of closed detention and the uncertainty about the future reportedly creates serious physical and mental
pain and suffering”.10
Within the context of administrative immigration enforcement, the UN Special Rapporteur on Torture has
held:
it is now clear that the deprivation of liberty of children based on their or their parents’ migration
status is never in the best interests of the child, exceeds the requirement of necessity, becomes
grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant
children.11
Furthermore:
Owing to their unique physiological and psychological needs, which render them particularly
sensitive to deprivation and treatment that otherwise may not constitute torture, children are
4
See the Department's form "Best Interests Assessment for transferring minors to an RPC (forming part of the PreTransfer Assessment)" (13 February 2014 – Version 1.4), page 1
5
UNHCR report, UNHCR monitoring visit to the Republic of Nauru 7 to 9 October 2013, Part III, paragraph 22
6
UN Committee on the Rights of the Child, General Comment No 8 (2006), [18]. See also UN Human Rights
Committee, General Comment No 20 (1992), [5].
7
See, eg, FKAG et al v Australia, Communication No 2094/2011, UN Doc CCPR/C/108/D/2094/2011 (2013), [9.8];
MMM et al v Australia, Communication No 2136/2012, UN Doc CCPR/C/108/D/2136/2012 (2013), [10.7]. For
concerns raised by the Australian Human Rights Commission, see Australian Human Rights Commission, A last
resort? National Inquiry into Children in Immigration Detention, Chapter 9: ‘Mental Health of Children in Detention’,
available from: https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigrationdetention/9-mental-health-children [accessed 29 February 2016].
8
UN Human Rights Committee, FKAG et al v Australia, UN Doc CCPR/C/108/D/2094/2011 (2013), [9.8]; UN Human
Rights Committee, MMM et al v Australia, UN Doc CCPR/C/108/D/2136/2012 (2013), [10.7].
9
Accessible at: http://www.theguardian.com/world/2014/apr/24/nauru-guards-accused-of-assaulting-children
10
UN Committee against Torture, Concluding observations on the Fourth and Fifth Periodic Reports of Australia, UN
Doc CAT/C/AUS/CO/4-5 (2014), [17].
11
UN General Assembly, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, UN Doc A/HRC/28/68, 17 [80].
3
RACS
CMW/CROC: The rights of the child in the context of migration
more vulnerable to ill-treatment and torture than adults. The detention of children … is
inextricably linked – in fact if not in law – with the ill-treatment of children, owing to the
particularly vulnerable situation in which they have been placed that exposes them to numerous
types of risk.12
In our submission, non-citizen children subject to Australia’s immigration law framework have been
subjected to cruel, inhuman or degrading treatment or punishment. The cumulative effect of
unacceptable detention conditions on Christmas Island, in the OPCs, the arbitrary and indefinite nature
of all mandatory detention, and the uncertainty surrounding the fate of the children amounts to cruel,
inhuman, and degrading treatment or punishment of children. In particular, feelings of arbitrariness,
inferiority and anxiety associated with conditions in detention, as well as the profound effect of such
conditions on their dignity, constitute degrading treatment.13 Belgium was found to have knowingly
exposed asylum seekers to conditions of detention and living conditions that amounted to degrading
treatment because these conditions were well known before transfer and freely ascertainable from
several sources.14 Australia must similarly be held to account.
Article 37(b) and (d) – Arbitrary detention and right to challenge legality of detention
Article 37(b) applies to all deprivations of liberty including immigration controls. 15 The incompatibility of
Australia’s mandatory immigration detention arrangements with article 37(b) (and corresponding Article
9(1) of the International Covenant on Civil and Political Rights (ICCPR)) is well-established. Australian
conduct on its territory has repeatedly been found to violate this article.16 The Australian government
continues to consider mandatory detention of asylum seekers who arrived without a visa, including by
boat, to be an essential component of border protection and migration policy. The Migration Act creates
a presumption of detention, whereby ss 189(1) and (3) provide for mandatory detention of any unlawful
non-citizen, with no exceptions for individual vulnerabilities.
Other asylum seekers who are not unauthorised maritime arrivals are overwhelmingly not subject to this
treatment. Asylum seekers who arrived in Australia by boat after 19 July 2013 are subject to mandatory
transfer to detention centres in regional processing countries, subject to practicability. 17 Australian
government policy is for those individuals subject to the transfer arrangements to remain in immigration
detention in Australia until such time as there is capacity for their transfer. Or in the case for those who
were returned to Australia for medical treatment, await return to the OPC once their purpose in Australia
has ceased. There is no provision for the assessment of protection obligations during this period of
prolonged detention in Australia.
The provisions giving rise to the mandatory detention of unlawful non-citizens contain no exceptions for
children or unaccompanied children.18 There has been a concerning paucity of information published by
the Department of Immigration in relation to the measures taken to protect the safety of children in
immigration detention in Australia.
In a number of decisions of the UN Human Rights Committee, Australia’s policy of mandatory detention
has been found to result in detention that is arbitrary because (i) prolonged immigration detention,
pending refugee status determination, was not justified given the individual’s circumstances; and (ii)
Australia failed to demonstrate that there were not less invasive means for achieving compliance with its
immigration policies in the individual’s particular circumstances.19 The UN Human Rights Committee has
recommended that Australia consider abolishing mandatory detention.20
12
Ibid, 15 [69].
MSS v Belgium and Greece, European Court of Human Rights, Application No 30696/09, 21 January 2011, [233].
Ibid, [219], [233], [366], [367].
15
See, eg, UN Human Rights Committee, General Comment No 35 (2014), [5], which states that deprivation of liberty
includes administrative detention.
16
UN Human Rights Committee, A v Australia, UN Doc CCPR/C/59/D/560/1993 (1997); UN Human Rights
Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002); UN Human Rights
Committee, Baban v Australia, Communication No 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003); UN Human
Rights Committee, Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003);
UN Human Rights Committee, D & E v Australia, Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002
(2006); UN Human Rights Committee, Shafiq v Australia, Communication No 1324/2004, UN Doc
CCPR/C/88/D/1324/2004 (2006); UN Human Rights Committee, Shams v Australia, Communications Nos 1255,
1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270
& 1288/2004 (2007); UN Human Rights Committee, Kwok v Australia, Communication No 1442/2005, UN Doc
CCPR/C/97/D/1442/2005 (2009).
17
S 198AD
18
Sections 189(1) and (3) of the Migration Act 1958 (Cth).
19
See, eg, UN Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997), [9.4]; UN Human Rights Committee, C v Australia, Communication No 900/1999, UN
Doc CCPR/ C/76/D/900/1999 (2002), [8.2]; UN Human Rights Committee, Baban v Australia, Communication No
1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003), [7.2]; UN Human Rights Committee, D and E v Australia,
13
14
4
RACS
CMW/CROC: The rights of the child in the context of migration
Furthermore, even if an individual’s liberty has not been deprived on the strength of any one restriction
placed on them, the restrictions considered cumulatively and in combination can resemble treatment
amounting to detention.21
On 25 February 2015, “open centre” arrangements were introduced at the Nauru OPC. This decision
was welcomed.22 However, in our submission, due to the cumulative effect of remaining restrictions, the
liberty of children continues to be deprived contrary to Article 37(b). Asylum seekers can freely leave the
OPC, enter the Nauruan community and move around the island. However, their freedom is impractical
because (a) the town centre is more than an hour’s walk away in extreme heat and (b) detainees have
expressed feeling greater personal safety within the camp than the community. Moreover, asylum
seekers cannot leave the island, cannot work, cannot study and cannot be practically visited by family
members from outside Nauru. Key human rights concerns remain, including accommodation in tents with
minimal privacy, in extreme heat, and in harsh conditions below international standards. The Australian
Human Rights Commission (AHRC) maintains that Nauru is not a safe or appropriate place to process or
resettle refugees. It is not satisfied that these concerns are remedied by opening the facility.23
In our submission, children detained have been deprived of their right to liberty under article 37(b):
(a) Mandatory immigration detention is arbitrary per se where detention is not based on an
individualised assessment.24 Children are mandatorily detained and transferred to Nauru for further
detention at the OPC without any real individualised assessment of the need for detention
(including whether less restrictive alternatives are available and sufficient) and moreover lack an
opportunity to seek review of the detention decision. Their detention cannot be justified as
necessary for the purposes of assessing their availability for transfer and removal because such
reasons are not particular to their individual circumstances.
(b) Detention for immigration control purposes is not per se arbitrary or prohibited by international
law.25 However, mandatory detention is inherently arbitrary and contrary to the CROC and
ICCPR.26 Detention must be justified as “reasonable, necessary and proportionate in light of the
circumstances and reassessed as it extends in time.”27 Detaining asylum seekers who have
entered unlawfully onto a State party’s territory for more than a “brief initial period” while their claims
are being resolved is “arbitrary in the absence of particular reasons specific to the individual, such
as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts
against national security.”28 The decision must “consider relevant factors case by case and not be
based on a mandatory rule for a broad category”.29 Australia’s policies in relation to detaineing noncitizen children demonstrate a disregard for these requirements.
(c) The length of time spent in detention contributes to its arbitrary nature. Immigration detention
should not last for a potentially indefinite duration.30 Thus, “in order to avoid a characterization of
arbitrariness, detention should not continue beyond the period for which the State party can provide
appropriate justification.”31 Detention which is initially lawful can become arbitrary where a
Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), [7.2]; UN Human Rights Committee, Shams
v Australia, Communications No 1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288//2004, UN Doc
CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288/2004 (2007), [7.2].
20
UN Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Australia submitted under
Article 40 of the International Covenant on Civil and Political Rights, UN Doc CCPR/C/AUS/CO/5 (2009), [23].
21
Guzzardi v Italy, Application No 7367/76, European Court of Human Rights, 6 November 1980), [95]. Mr Guzzardi
was ordered to remain on an island for 3 years. He could apply to leave with good reason but visits were supervised
by police. He was permitted to work but work was limited. He could be visited by family members who could live with
him. These conditions amounted to detention in an “open prison”, involving a deprivation of liberty.
22
UNHCR, “UNHCR welcomes change in Nauru's detention policy”, 5 October 2015,
http://www.unhcr.org/56128b5b6.html.
23
AHRC, “Commission responds to detention changes on Nauru” (9 October 2015),
https://www.humanrights.gov.au/news/stories/commission-responds-detention-changes-nauru.
24
UN Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997),
[9.4]; UN Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999
(2002), [8.2].
25
UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and
Alternatives to Detention (2012), Guideline 4, [18].
26
UN Human Rights Committee, General Comment No 35 (2014), [18].
27
Ibid.
28
Ibid.
29
Ibid.
30
UN Working Group on Arbitrary Detention, Promotion and Protection of All Human Rights, Civil, Political, Economic,
Social and Cultural Rights, including the Right to Development, Report, UN Doc A/HRC/7/4 (2008), [52].
31
UN Human Rights Committee, Madani v Algeria, Communication No 1172/2003, UN Doc CCPR/C/89/D/1172/2003
(2007), [8.4].
5
RACS
CMW/CROC: The rights of the child in the context of migration
“reasonable prospect” of expelling a person no longer exists and detention is not terminated.32
Detention for the limited purpose of removal cannot spiral into a licence to detain indefinitely.
Children detained on Nauru have been there and will remain there as refugees for an
indeterminable period. For asylum seekers who arrived after 13 August 2012 detention has not
been for the shortest appropriate time.
(d) The onus is on Australia to demonstrate that lesser interferences with the right to personal
liberty are insufficient. Detention for immigration purposes must never be mandatory or automatic.
Detention is only permissible as a measure of last resort, for the shortest time and when no less
restrictive measure is available.33 If an objective can be achieved through less invasive means, then
any detention will be arbitrary.34 Less invasive means can be used by Australia to secure
compliance with its immigration objectives.35 Detention in the Nauru OPC is unnecessary. Many
children have been detained at sea, transferred to Nauru and further detained while awaiting
refugee processing on Nauru. Instead, they could have been accommodated in Australians centres
or preferably in a community setting in Australia while their claims were being processed. The
Australian Government continually states these policies have been implemented as a deterrent
strategy36 and not out of an inability or incapacity to provide support to such peoples.
(e) The children’s forcible transfer to and detention on Nauru cannot be justified as necessary for
reasons of public order, public health or national security.
In our submission, Australia is also in violation of Article 37(d), as the children detained are not legally
entitled to take proceedings before a court in order that it may decide without delay on the legality of their
detention and order their release where their detention is arbitrary.
The nature of judicial review available to immigration detainees in Australia typically does not satisfy
Article 37(d). Judicial review of the legality of detention must be “real” and not limited to a “merely formal”
assessment of whether a person falls into a self-evident legal category under domestic law - the court
must also be empowered to order the release of a person where detention is incompatible with the
CROC or ICCPR.37 Some children have had the right to bring habeas corpus proceedings in Nauru.
However, that right has been limited to ensuring compliance with Nauruan law. The children do not have
the right to challenge the legality of their detention, under international law, before a court of law at any
time – and no court in Australia or Nauru is empowered to release them on such a basis.
Even when arrest and detention are carried out to facilitate the expulsion of individuals who entered a
country irregularly, “[s]trict legal limitations must be observed and judicial safeguards be provided for.”38
The person concerned should be provided with a reasoned decision in a language that they understand
and have the right to challenge the lawfulness of their detention before a court. Transfer and detention at
the Nauru OPC has been imposed on children as a blanket policy. No reasoned decision or real
opportunity has been given to them for assessing the suitability or appropriateness of their transfer and
detention.
For all asylum seekers in Australia a central factor contributing to the lengthy periods of immigration
detention experienced by many asylum seekers in Australia is the statutory bar on visa applications that
applies to unauthorised maritime arrivals.39 For unauthorised maritime arrivals who arrived in Australia
after 13 August 2012, there is no proposed timeframe or process for the consideration of protection
claims and this cohort is unable to compel consideration of those claims (by way of protection visa
application) as a result of the operation of the statutory bar.
32
UN Human Rights Committee, Jalloh v Netherlands, Communication No 794/1998, UN Doc CCPR/C/74/D/794/1998
(2002), [8.2].
33
UN Special Rapporteur on the human rights of migrants, Report, UN Doc A/HRC/20/24 (2012), [68].
34
See, eg, UN Human Rights Committee, D and E v Australia, Communication No 1050/2002, UN Doc
CCPR/C/87/D/1050/2002 (2006), [7.2]; UN Human Rights Committee, Shams v Australia, Communications Nos
1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268,
1270 & 1288/2004 (2007), [7.2].
35 Australia has previously not demonstrated that, in the light of an individual’s particular circumstances, there were
not less invasive means of achieving the same ends (that is, compliance with its immigration policies by imposing
reporting obligations, sureties or other conditions): UN Human Rights Committee, C v Australia, Communication No
900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), [8.2]; UN Human Rights Committee, Baban v Australia,
Communication No 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003), [7.2].
36“ Peter Dutton pledges to be tough on people smugglers regardless of what High Court decides on Nauru.
News.com.au Mr Dutton said he wanted “zero” children in detention, but deterring asylum seekers was the priority.”
http://www.news.com.au/national/politics/peter-dutton-pledges-to-be-tough-on-people-smugglers-regardless-of-whathigh-court-decides-on-nauru/news-story/dccbbfd4d2ed3bdc11908cb6684bbb42
37
A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), [9.5].
38
Report of the Working Group on Arbitrary Detention to the Human Rights Council, UN Doc A/HRC/13/30 (2010),
[59].
39
s 46A of the Migration Act 1958 (Cth).
6
RACS
CMW/CROC: The rights of the child in the context of migration
In addition to the bar on visa applications, unauthorised maritime arrivals in immigration detention are
barred from many avenues of judicial review or remedy in relation to the their status or continued
detention.40 There are also considerable practical and physical barriers to complaints mechanisms,
including limited access to telephones and internet in many detention centres and in some detention
centres, the reported blocking of the websites of organisations that facilitate access to complaints
mechanisms.
Complaints of ill-treatment in detention are most commonly concerned with the acts of agents of
Department of Immigration, Serco (the contracted manager of detention centres in the Australian
detention network), International Health and Medical Services (IHMS) (the contracted provider of
healthcare services) and other providers with day-to-day contact with complainants. In practice, the
ability of a person in immigration detention to make a complaint is therefore reliant on the cooperation of
the very individuals and organisations to which those complaints relate.
The remoteness of many immigration detention centres, including OPC and the abolition of the scheme
for the provision of free, independent, legal assistance to all asylum seekers in immigration detention in
2014 places further barriers to information, advice and assistance in relation to complaints of illtreatment.
Article 37(c) – Children deprived of liberty to be treated with humanity and respect
Article 37(c) requires Australia to treat child detainees with “humanity and respect for the inherent dignity
of the human person”. Given the conditions prevailing at the Nauru OPC and that in Australia the
averagetime time in detention has reached 457 days41, it is clear that the children detained have not
been treated with humanity and with respect for the inherent dignity of the human person. Indeed, in our
submission, and as explained above, the conditions on Nauru amount to cruel, inhuman or degrading
treatment or punishment.
The AHRC has also provided significant evidence of the poor conditions in Australian centres42.
We also raise concerns regarding reports of use of excessive force in the detention environments, such
as that of the Guardian of April 24 201443 which detail allegations of Nauru guards assaulting children in
the detention camp. As well as the AHRC Report detailing the transfer of unaccompanied children within
camps on Christmas Island44.
Article 22(1) – Appropriate protection and humanitarian assistance afforded to children seeking
refugee status
This article acknowledges the special vulnerability of refugee and asylum-seeking children. Article 22(1)
aims to ensure that these children receive the assistance they need so that they are in a position to enjoy
all the rights that other children enjoy. What measures are “appropriate” to ensure the enjoyment of a
child's rights are likely to differ from, or be additional to, the measures which may be in place for other
children who do not confront the disadvantages faced by children who are refugees or seeking asylum.
As stated previously the lack of additional consideration for children in the asylum process, especially
that of unaccompanied children is of particular concern, especially in an environment of harsh policies
with no exceptions.
Article 10 – Family Reunification
Under Article 10 of the CROC, State parties are to ensure that applications for family reunification are
dealt with in a positive, humane and expeditious manner. In this submission, we would like to reiterate a
number of concerns recently raised by the AHRC about Australia’s non-compliance with this obligation.
40
s 494AA of the Migration Act 1958 (Cth).
Department of Immigration and Border Protection, Australian Government, ‘Immigration Detention and Community
Statistics Summary’, (31 January 2016) 4
<https://www.border.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-31-jan2016.pdf>.
42
Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration
Detention, 2015, available from: https://www.humanrights.gov.au/our-work/asylum-seekers-andrefugees/publications/forgotten-children-national-inquiry-children [accessed 29 February 2016].
43
Accessible at: http://www.theguardian.com/world/2014/apr/24/nauru-guards-accused-of-assaulting-children
44
Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration
Detention, 2015, available from: https://www.humanrights.gov.au/our-work/asylum-seekers-andrefugees/publications/forgotten-children-national-inquiry-children [accessed 29 February 2016].
41
7
RACS
CMW/CROC: The rights of the child in the context of migration
First, we are concerned that amendments to the Migration Regulations 1994 (Cth)45 which make family
reunion in Australia substantially more difficult for refugees who arrived unauthorised by boat, including
unaccompanied children. In our submission, this is likely to be inconsistent with Australia’s obligations
under the ICCPR and the CROC, including taking steps to support families to reunify.46
Further as per Direction 6247 family stream visa applications in which the applicant’s sponsor or
proposed sponsor is a person who entered Australia as an “Illegal Maritime Arrival” are directed to be
processed as lowest priority. This realistically means that family reunion applications for permanent
residents who came to Australia by boat are likely to take an incredibly lengthy time before a visa is
granted. A policy which is again applied without any exemption or consideration for children in this
process
Further, for those who have arrived by boat since 13 August 2012 or whom had not been granted a
permanent visa prior to 15 December 201448, have no opportunity to apply for family reunification. We
note that the application of the “no advantage” principle to children, including unaccompanied children,
has lead to long periods of time before their refugee status is considered and consequently delaying any
ability to make applications for family reunification. Further, all unauthorised maritime arrivals, if deemed
to engage Australia’s protection obligations will be granted a Temporary Protection Visa (TPV) or Safe
Haven Enterprise Visa (SHEV), neither of which allow for the holder of said visa to apply for family
reunion.
Finally, as the AHRC has noted, if asylum seekers who are transferred to a third country already have
family members in Australia, “they may face potentially indefinite separation from those family members,
and Australia could be in breach of its obligation to protect the right to freedom from interference with
family”.49
Article 39 – Requirement to promote the physical and psychological recovery and social
reintegration of a child victim
We support the finding made by AHRC in their Forgotten Children Report.50
We further submit that the failure of the Commonwealth to remove children with their families and
unaccompanied children in particular from detention environments which inhibit recovery from past
trauma is a breach of Article 39 of the CROC.51
Article 19 – Children to be protected from all forms of physical or mental violence
Children have the right to be protected from being hurt and mistreated, physically or mentally.
Governments should ensure that children are properly cared for and protected from violence, abuse and
neglect. As the Australian Medical Association (AMA) has stated:
Australia’s detention facilities are harmful to both adult and children asylum seekers. Within
detention facilities, people face uncertainty, fear for the future and hopelessness which causes
their health to deteriorate. Reports and investigations provide evidence that immigration detention
facilities have significant psychological morbidity which is directly associated with the amount of
time spent detained; with the Australian Human Rights Commission report finding that 85% of
parents and children reporting negative effects on their mental health while in detention. The
literature consistently confirms high rates of depression, anxiety, Post-Traumatic Stress Disorder
(PTSD), self-harming and suicidal thoughts in asylum seekers who have been detained.
45
Australian Human Rights Commission, Report into arbitrary interference with family
https://www.humanrights.gov.au/sites/default/files/document/publication/2015_AusHRC_99.pdf
46
Australian Human Rights Commission, Human rights issues raised by the third country processing regime, available
from: https://www.humanrights.gov.au/our-work/rights-and-freedoms/publications/human-rights-issues-raised-thirdcountry-processing-regime [accessed 29 February 2016].
47
On 19 December 2013, the Hon Scott Morrison MP, then Minister for Immigration and Border Protection, gave a
direction under s 499 of the Migration Act referred to as Direction 62 – order for considering and disposing of Family
Stream visa applications (Direction 62).
48
The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act9
49
Australian Human Rights Commission, Human rights issues raised by the transfer of asylum seekers to third
countries, available from: https://www.humanrights.gov.au/our-work/asylum-seekers-andrefugees/publications/human-rights-issues-raised-transfer-asylum-seekers [accessed 29 February 2016].
50
Australian Human Rights Commission, A last resort?, above n 7 (footnotes omitted).
51
This was also a finding reached in the AHRC inquiry, “Forgotten Children: a National Inquiry into Children in
Immigration Detention”: see AHRC, Summary Factsheet, July 2015, available from:
https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/summary-factsheet-forgottenchildren-national [accessed 29 February 2016].
8
RACS
CMW/CROC: The rights of the child in the context of migration
Adverse psychological impacts are prominent in detainees as a result of the detention
environment being punitive and dehumanising, characterised by deprivation and confinement. On
average, asylum seekers spend 394 days in detention. The cumulative effect of long-term
detention can cause a mental state dominated by hopelessness, the inability to concentrate or
perform simple tasks, paranoid tendencies, psychotic symptoms and delusions.
Detention facilities create an unacceptable risk to children’s health. The Forgotten Children report
provides exceptional direct evidence showing the negative effects of detention on children.
Detention not only compounds mental health problems in children but also creates it, resulting in
high rates of self-harm. There are commonly observed psychological disturbances among
children in detention facilities, including separation anxiety, disruptive conduct, nocturnal enuresis,
sleep disturbances, nightmares and night terrors, sleepwalking, and impaired cognitive
development. Furthermore, detained children also experience significant developmental and
language delays.52
The AMA went on to consider the impact of Australia’s immigration policy, in particular long-term
immigration detention on the health of disabled asylum seekers and considered children to be
particularly at risk of sexual violence, and unaccompanied children at a greater risk of harm. It is our
submission, given the AMA’s findings, Australia’s present immigration policy breaches Article 19 of the
CROC.
Article 20 – Unaccompanied children to be entitled to special protection and assistance
Under Article 20 of the CROC, unaccompanied children are entitled to special protection and assistance.
We submit that Australia is in breach of this obligation on three bases:



That the best interests of the child are not considered as the primary concern in regards to
asylum seeker children; and
Current guardianship arrangements do not afford unaccompanied children special protection
and assistance, in breach of Article 20(1) and (2); and
The failure of the Commonwealth to appoint an independent guardian for unaccompanied
children in immigration detention breaches Article 20(1).53
These failures are exacerbated by the transfer of unaccompanied to a third country. We would
like to reiterate the concerns raised by Save the Children Australia (SCA) in its submission to the
National Inquiry into Children in Immigration Detention. 54
Article 23 – Children with disabilities
Article 24 – Right to health care services
Article 28 – Right to education
Article 31 – Right to rest, recreation and play
We submit, in accordance with the findings of the AHRC,55 that Australia is in breach of its obligations
under Article 23, 24, 28 and 31.
We further submit, that the mandatory and prolonged nature of immigration detention is in violation of
Article 24(1) of the CROC, which provides that all children have the right to the highest attainable
standard of health. We submit that the harsh and crowded conditions of immigration detention,
particularly on Nauru and Christmas Island, have led to the onset or continuation of illness and injury,
and as such are in breach of Article 24.
In regards Article 28 we submit that Australia has failed to provide a quality education to asylum seeker
children in detention generally. More specifically in failing to provide any sort of education to school-aged
Australian Medical Association, Health Care of Asylum Seekers and Refugees – 2011. Revised 2015, 23 December
2015, available from: https://ama.com.au/position-statement/health-care-asylum-seekers-and-refugees-2011-revised2015 [accessed 29 February 2016] (footnotes omitted).
53
Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration
Detention, 2015, available from: https://www.humanrights.gov.au/our-work/asylum-seekers-andrefugees/publications/forgotten-children-national-inquiry-children [accessed 29 February 2016].
54
Australian Human Rights Commission, Submission to the National Inquiry into Children in Immigration Detention
from Save the Children, Commission Website: National Inquiry into Children in Immigration Detention, available from:
https://www.humanrights.gov.au/publications/commission-website-national-inquiry-children-immigration-detention-180
[accessed 29 February 2016] (footnotes omitted).
55
Australian Human Rights Commission, A last resort?, above n 7.
52
9
RACS
CMW/CROC: The rights of the child in the context of migration
children on Christmas Island between July 2013 and July 2014 and the current inability for
unaccompanied children on Nauru to access any form of education since their release from the OPC.
If it would be of assistance to the Committee, RACS is able to provide a more exhaustive submission in
particular regard for the unaccompanied children whom were detained for 18 months on Christmas
Island, and those who were transferred to Nauru.
In Summary we wish to provide two case studies, reflective of clients we assist and their
experience of migration to Australia.
Case Study One – Hamidullah
Hamidullah is currently 17 years old and was been held on Christmas Island for 16 months. He is a Shia
Hazara who fled Afghanistan following the death of his father, at aged 15 he arrived in Australia by boat.
He had significant problems with his vision and suffered daily from the stress of not knowing if he would
be transferred to Nauru or what his future holds.
When he spoke to his lawyer at RACS, he regularly told of the fear and insecurity he felt each week
when decisions were made about who will be transferred. He often articulated his overwhelming sadness
and has threatened suicide. He told RACS that in the centre he doesn’t feel like anyone is on his side.
He stated "we feel torture in present and they treat us is like criminal." He worried that there was no end
in sight to his detention.
Whilst detained he stated “I’m so uninterested and bored… I don’t know what my future holds. I have lost
all my hope.” He was unable to attend school until the last 6 months of his detention.
Whilst detained, he often spoke of going to the doctors about continuing back pain, he was often
returned to camp “with two Panadol and water” and waited several months for a specialist, despite his
repeated complaints.
Hamidullah was released from detention in December 2014. He now awaits processing for a Temporary
Protection Visa. He is desperately unhappy that he will likely never see his mother or younger sister
again as he has no avenue to apply to bring them to Australia.
Case Study Two – Asaf
Asaf arrived in Australia the same day as Hamidullah. After 6 months on Christmas Island he was
transferred to Nauru. Asaf is 17 years old from Iraq. Asaf has a maternal Uncle in Australia.
Asaf regularly takes sleeping tablets as he can’t sleep. He states he fears the locals from Nauru coming
into his room and that he has nightmares of his time in the OPC. Asaf states he remembers very clearly
being woken at 4am on Christmas Island, and being put on a plane to Nauru, without any opportunity to
call a lawyer or say goodbye to his friends.
Asaf was granted refugee status in late 2014 and moved out of the OPC and into community housing in
Nauru. He states that he never really knew his Guardian and he has no one to talk to. He states that with
the little money he is given, he does not have enough money to buy groceries which are expensive or
buy phone credit to call his family.
Asaf does not know his rights in Nauru, he does not know what visa he has or how long he will be in
Nauru. He often asks his lawyer “what’s the point?”.
Asaf speaks to his friend Abdullah who was transferred to Nauru with Asaf, but has since returned to
Australia which his family for medical treatment for his mother. Asaf states his friend Abdullah is petrified
of returning to Nauru and is still in detention in a remote location in Australia.
10
RACS
CMW/CROC: The rights of the child in the context of migration
We thank the Committee for the opportunity to comment on the rights of the child in the context of
migration, with our specific interest in the experience of children who arrive in Australia by boat
seeking asylum. Please do not hesitate to contact us for further information or clarification on 02
8355 7227.
Yours sincerely,
REFUGEE ADVICE AND CASEWORK SERVICE (AUST) INC
Per:
Sarah Dale
Solicitor | Migration Agent (MARA Reg. No. 1279354)
11