Australian refugee laws

and juvenile asylum seekers

Dr. Chandrika Subramaniyan BA. MA. MPhil. PhD. LLB. LLM.

Adv Dips in Management, Training and Legal Prac.MAICD

Solicitor and Barrister Supreme court of NSW and High court Mediator and

Arbitrator Kuala Lumpur Regional Centre

Panellist Indian Council of Arbitration

Presented at

Dr AMBHEDKAR LAW UNIVERSITY CHENNAI

National Seminar on Child Rights

October 2014

UNHCR

estimates :

half of the 50 million displaced

persons in the world are children

Human Rights and Equal Opportunity

Commission report

• children who in mandatory detention

• indefinite periods

• no real opportunity to argue their

case

Dr. Sev Ozdowski OAM Human Rights Commissioner

report

• children detained for long periods - high risk of suffering mental illness

• 14% - unaccompanied children

• Australian government’s refusal : “cruel, inhumane and degrading treatment of those children in detention”

• Health

• well-being and

• development of children

Australian Human Rights Commission

inquiry on children detention

2014

Children

:

775 children are held in locked immigration detention facilities in Australia and 208 children are held in Nauru

304 children were detained on Christmas : subject to offshore transfer to Nauru

54 unaccompanied children are held in immigration detention facilities in Australia.

128 babies were born in immigration detention f in Australia (1 January 2013 and 31 March 2014)

Time in detention

321 children in detention in Australia for more

than 6 months.

38 children detention in Australia for more

than one year.

The average length of time that a child spent

in an detention in Australia - 231 days.

128 reported actual self-harm incidents children in closed immigration

detention in Australia

Neglect of obligation to CRC

518 children of compulsory school) in detention in Australia.

338 children attended an external school at 31 March 2014.

School education on Christmas Island is limited(2 weeks per child.

The average length of time detained on Christmas Island is 221.5 days. There were 160 school aged children.

Australia’s neglect to its obligation to the Convention on the Rights of the Child

Current Refugee determination process

minimal infrastructure / limited or no

community services or standardised

health services

No distinction between children and

adults

developing severe psychological

disorders, ,depression and anxiety,

leading to self-harm and suicide

Laws passed : detention of children

Migration Amendment (Detention Arrangements) Act

2005, established: that children should only be detained as the last option

Babies born in detention centre

Before Ferouz, issued ,Queensland birth

certificate, mother asylum seeker

thereafter considered as a UMA

Adelaide Hills, 11 babies were sent to

Christmas Island on offshore detention

centre at 3 a.m disregarding their physical

conditions.

the baby is 28 days old, they can be sent

to an offshore facility.

Detention of children in Nauru

Understanding (MOU) with the

Republic of Nauru, for a Regional

Processing Centre (RPC)

177 asylum seeker children who have

been detained in Nauru which include

20-50 unaccompanied minors.

Extraterritorial Application process

&

Convention on the Rights of the Child

Article 2(1) of the CRC

all children irrespective of their status.

Detention of children and its impact

violation of Article 3(1) of the CRC :

“In all actions concerning children, whether

undertaken by public or private social

welfare institutions, courts of law,

administrative authorities or legislative

bodies, the best interests of the child shall be

a primary consideration.”

International Covenant

on Civil and Political Rights

(ICCPR)

Detention that is not justified and is not

particular to the individual

circumstances of a detainee will

constitute arbitrary detention:Article 9

CRC

arbitrary under Article 37 (b) of the CRC which provides: “No child

shall be deprived of his or her liberty unlawfully or arbitrarily,”

violation of Article 20(1)

Article 37 (a)

“No child shall be subjected

to torture or other cruel,

inhuman or degrading treatment or punishment.”

Article 22(1) _ (CRC)

appropriate measures to ensure

that asylum-seeking children

enjoy their rights under the CRC

and the Refugee Convention : Convention on the Rights of the Child

1. The length of time

2. The uncertainty of the positive

outcome two fates:

-returned

-continue their detention

unspecified periods of time.

3. distress the children in detention

influencing their social life, psychology,

wellbeing, isolation and education

The major concerns

THANK YOU