Why is Australia being criticized for the way it treats asylum seekers and unaccompanied alien children?


Australian Program for Asylum Seekers

Australia's Humanitarian Program has two components: resettlement for people overseas who have been determined to be refugees or in humanitarian need, and onshore protection for asylum seekers who are in Australia already.[1] The overseas operation screens aliens for refugee eligibility before they begin the journey to Australia. The number of aliens who bypass that system to go directly to Australia has been reduced by Operation Sovereign Borders, a military-led border security operation supported and assisted by a wide range of federal government agencies. This joint Agency Task Force was established to ensure a whole-of-government effort to combat people smuggling aliens to Australia and to protect Australia’s borders.[2] I am planning to write another article that will go into greater detail on this operation.

Every year, thousands of aliens file onshore asylum applications, which are known as protection visas in Australia. Eligibility depends on establishing that the Government of Australia has protection obligations to the applicant pursuant to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [3](Convention) or under the complementary protection program. An applicant for relief under the Convention must establish that he/she is outside his/her own country and is unable or unwilling to go back because he/she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[4] An applicant for complementary protection relief must establish substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s home country, there is a real risk that he/she will suffer significant harm.[5] An applicant is barred from receiving a protection visa if he/she ---

· Entered Australia without a valid visa or was not cleared by immigration authorities;

· Has previously been refused a protection visa since his/her last arrival to Australia;

· Has had a protection visa cancelled since his/her last arrival to Australia;

· Is a national of two or more countries;

· Has protection from a prescribed safe third country; or

· Has held a Temporary Safe Haven visa.

The Minister for Immigration and Border Protection [6] (Minister) has the power to waive this bar if it is in the public interest. [7]

Adjudication of Applications for a Protection Visa

The onshore asylum applicant must submit a Form 866A Application for a Protection Visa[8] to an Onshore Protection Processing Office. In addition to reviewing the eligibility requirements, the decision maker must be satisfied that the applicant is who he/she says he/she is. It may not be possible in every case, however, for the applicant’s identity to be fully established.[9]

An applicant who is denied a protection visa can appeal to the Refugee Review Tribunal (Tribunal), which is a statutory body that reviews decisions made by the Department of Immigration and Border Protection (Department) to refuse or cancel a protection visa. The Tribunal can make a de novo determination of whether the applicant is a person to whom Australia has protection obligations under the Convention, or whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm.[10] Applicants can appeal an adverse Tribunal decision to the Federal Circuit Court, and an adverse decision in a Federal Circuit Court can be appealed to the High Court of Australia.[11] The High Court is the highest court in the Australian judicial system.[12]

Migration and Maritime Powers Legislation Amendment

Among other things, the Migration and Maritime Powers Legislation Amendment, Bill 2014[13] (Bill 2014), which was enacted on December 15, 2014, established that permanent protection is not available to asylum seekers who travel to Australia illegally.[14] They are limited to Temporary Protection Visas[15] (TPVs) and the Safe Haven Enterprise Visa (SHEV). A TPV provides limited work authorization and access to Medicare, social security benefits, job matching and short-term counseling for torture or trauma where required. Minors also have access to education.[16] A SHEV visa expands the TPV to include work and study in regional areas.[17]

Bill 2014 permits the removal of asylum seekers even when this will breach Australia’s non-refoulement obligations. The principle of non-refoulement is the cornerstone of asylum and of international refugee law. It reflects the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment.[18]

It provides, with retrospective effect, that children born to asylum seeking parents have the same status as their parents. This means that newborn children can be detained, processed offshore and denied permanent protection in the same way as their parents.

It creates a fast track assessment process for aliens who are unauthorized maritime arrivals who entered Australia on or after August 13, 2012, and other groups specified by legislative instrument. Fast track decisions can be appealed to the Immigration Assessment Authority, which conducts a limited merits review on the papers and either affirms the fast track decision or remands the decision for reconsideration in accordance with prescribed directions or recommendations. It also establishes an “excluded fast review track applicants” category. Members of this group only have access to an internal review by the Department and this is not guaranteed by the legislation. This group includes asylum seekers who arrived on a bogus document, who have made a manifestly unfounded claim for protection, who have previously been refused protection in Australia or elsewhere by UNHCR or another country, or who have come from a safe third country or have access to effective protection in another country.

It removes most of the references to the Convention from the Migration Act and replaces them with language that articulates Australia’s interpretation of its protection obligations.

It also restores the Government’s ability to place a limit on the number of protection visas that can be issued in any year. However, it permits the Minister to suspend processing of protection visas when the cap has been reached.

It adds character grounds to the list of bars to receiving a protection visa.

It provides that continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor is not the length of detention. In this context, “arbitrary” means that the detention does not have a legitimate purpose.

Amnesty International objects to the "fast track" process. Under this process, a substantial percentage of asylum seekers have no way to appeal an adverse decision. Amnesty International also objects to the reintroduction of temporary protection visas. When they were previously introduced under then Prime Minister John Howard, they were shown to inflict serious harm on refugees’ mental health, with higher levels of stress, anxiety, depression and post-traumatic stress, compared to those who receive permanent protection.[19]

According to the United Nations Special Rapporteur on torture,[20] Juan E. Méndez,[21] Bill 2014 puts Australia at risk of violating the Convention with respect to onshore visa protection determinations by tightening control on the issuance of visas on the basis of character and risk assessments. The Rapporteur concludes that the Government of Australia, by failing to amend the provisions of Bill 2014 to comply with its obligations under international human rights law, has violated the rights of migrants and asylum seekers to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1, 3, and 16 of the CAT.[22]

Unaccompanied Alien Children Seeking Asylum in Australia

Special Rapporteur Méndez urges state governments around the world to stop detaining children for immigration enforcement purposes. Detaining a child on the basis of his/her parents’ migration status is never in the best interests of the child, and it exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment.[23]

The Australian Human Rights Commission (Commission) issued a report in November of 2014 on the practice of holding children at mandatory closed detention centers. The Commission is an independent statutory organization that reports to the Australian Parliament. The Commission's goals are to foster greater understanding and protection of human rights in Australia, and to address the human rights concerns of a broad range of individuals and groups.[24]The Commission’s report pertains to approximately 800 children who were being held on Christmas Island[25] for an average of one year and two months. The following is a snapshot of the Commission’s findings:

· Children in immigration detention have significantly higher rates of mental health disorders compared with children in the Australian community;

· Both the former and current Ministers agreed that holding children for prolonged periods in remote detention centers does not deter people smugglers or asylum seekers. There appears to be no rational explanation for the prolonged detention of children;

· The right of all children to education was denied for over a year to those held on Christmas Island;

· The Minister, as the guardian of unaccompanied children, has failed in his responsibility to act in their best interests;

· The Commonwealth’s decision to use force to transfer children on Christmas Island to a different center breached their human rights;

· The numerous reported incidents of assaults, sexual assaults and self-harm involving children indicate the danger of the detention environment;

· At least 12 children born in immigration detention are stateless, and may be denied their right to nationality and protection;

· Dozens of children with physical and mental disabilities are detained for prolonged periods;

· Some children of parents assessed as security risks have been detained for over two years without hope of release; and

· Children detained indefinitely on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress.[26]

The Australian Churches Refugee Taskforce (Taskforce) was established to promote a shared Christian vision of compassion and hospitality for asylum seekers and refugees. These churches work together to advocate for just and humane policies. It currently has 498 member entities.[27] The Taskforce is particularly concerned about the welfare of asylum-seeking children. It has synthesized these issues into six key problem areas and proposed a solution for each of them.

Problem 1: The Minister is the guardian of the unaccompanied children. He stands in place of the natural parents, in loco parentis. But the Minister also serves as the judge and jailer of these children. He is charged with the determination of asylum claims and deportation. It is a glaring conflict of interest to charge the same person with the care of these children and with the responsibility of determining whether they are eligible for a protection visa, and if not, to deporting them.

Solution 1: Appoint an independent guardian who can ensure that unaccompanied minors are protected and cared for in accordance with all Australian child welfare laws and relevant international treaty obligations.

Problem 2: The Australian Government is failing to provide institutional child protection and welfare, and it is failing to employ fair and lawful processes for determining the best interests of the children.

Solution 2: Stop treating unaccompanied children as unwanted cargo. The best interest’s principle must be the consideration of first importance.

Problem 3: Children who are on their own cannot be expected to navigate the asylum system. They are being interrogated without a lawyer present, without an independent guardian acting in their interests, and without being told of their rights.

Solution 3: Protect children by conducting an independent review of their protections claims and assisting them in navigating the claims process. This can be achieved by reinstating publicly funded legal assistance and advocacy for children.

Problem 4: Unaccompanied children are treated differently depending on their mode and timing of arrival. Their security, healing and future is held hostage to a “care lotto.”

Solution 4: Establish a national policy framework and apply consistent standards of care that are based on best-practice models in the child-protection and health care sectors.

The care of unaccompanied children across the whole service spectrum should be based on the individual needs and circumstances of each child.

Problem 5: The stated policies and procedures for unaccompanied children in closed detention are not being followed. Oversight is fragmented, lacking in powers and does not have system-wide perspective.

Solution 5: End closed detention of children and make accountabilities clear, public and more transparent. Unaccompanied children should be removed immediately from closed detention on Christmas Island and on-shore detention centers.

Problem 6: The Minister forsakes his guardianship duties when he sends unaccompanied children to a detention camp. These children are experiencing terrible physical and mental suffering.

Solution 6: The Government must end the forcible removal of unaccompanied children to offshore detention camps immediately. These children should have appropriate care in our community while their protection claims are assessed.[28]

[1] Offshore Humanitarian Program, available at http://www.immi.gov.au/about/reports/annual/2010-11/html/outcome-2/offshore-humanitarian-program.htm

[2] Operation Sovereign Borders, available at http://www.customs.gov.au/site/operation-sovereign-borders.asp

[3] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

[4] Protection Visas, Protection obligations under the Refugees Convention at p. 1-19, available at http://www.mrt-rrt.gov.au/CMSPages/GetFile.aspx?guid=0e646f15-374c-4525-9555-a55a1d23fdc6

[5] Protection Visas, Protection obligations on complementary protection grounds at p. 1-22, available at http://www.mrt-rrt.gov.au/CMSPages/GetFile.aspx?guid=0e646f15-374c-4525-9555-a55a1d23fdc6

[6]Immigration and Border Protection Ministers, available at http://www.australia.gov.au/directories/australia/portfolio/immigration

[7]Application for a protection visa, available at http://www.immi.gov.au/forms/Documents/866.pdf

[8] Application for a protection visa, available at http://www.immi.gov.au/forms/Documents/866.pdf

[9] The Protection Visa Procedures Advice Manual, available at http://www.australiavisainfo.com/the-protection-visa-procedures-advice-manual/

[10]Migration Review Tribunal – Refugee Review Tribunal, Annual Report 2013-14, available at http://www.mrt-rrt.gov.au/AnnualReports/MRTRRTAR201314.pdf

[11] Refugee Review Tribunal, The Review Process, available at http://www.mrt-rrt.gov.au/CMSPages/GetFile.aspx?guid=e8c9d234-ed34-4bdb-a243-4d22f4b83254

[12] Role of the High Court, available at http://www.hcourt.gov.au/about/role

[13] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, available at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr5346_ems_a065619e-f31e-4284-a33e-382152222022%22

[14] Explanatory Memorandum of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, available at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr5346_ems_a065619e-f31e-4284-a33e-382152222022%22

[15] Temporary Protection visas, available at http://www.immi.gov.au/About/Pages/ima/temporary-protection-visas.aspx

[16] What will a TPV allow me to do? http://www.immi.gov.au/About/Pages/ima/temporary-protection-visas.aspx

[17]New 'Safe Haven' visa announced in Australia (October 6, 2014), available at http://www.workpermit.com/news/2014-10-06/new-safe%20haven-visa-announced-in-australia

[18] UNHCR Note on the Principle of Non-Refoulement, available at http://www.refworld.org/docid/438c6d972.html

[19]Australia: returning people to torture since 2014 (December 5, 2014), available at http://www.amnesty.org.au/news/comments/36180/

[20] Information about the Special Rapporteur’s methods of work is available at, http://www.ohchr.org/Documents/Issues/SRTorture/methodswork.pdf

[21]Juan E. Méndez, Special Rapporteur on Torture, available at http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/JuanMendez.aspx

[22] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez (March 6, 2015), Addendum Observations on communications transmitted to Governments and replies received, at p. 9, available at http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/SRTortureIndex.aspx

[23] Detention is inextricably linked with ill-treatment, children must be protected – UN expert (March 10, 2015), available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15674&LangID=E

[24] Australian Human Rights Commission, http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/SRTortureIndex.aspx

[25] Information about Christmas Island is available at http://regional.gov.au/territories/christmas/index.aspx

[26]T he Forgotten Children: National Inquiry into Children in Immigration Detention 2014 (November 2014), available at https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf

[27] Australian Churches Refugee Taskforce, available at http://www.australianchurchesrefugeetaskforce.com.au

[28]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), available at http://www.australianchurchesrefugeetaskforce.com.au/wp-content/uploads/2014/07/ProtectingTheLonelyChildren.pdf

Reprinted with permission.

About The Author

Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he welcomes part time and temporary work.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.