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Rights of Children Refugees

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  1. Introduction

Australia has flexibility in developing domestic migration policies that operate within the international legal framework yet evidence suggests that Australia’s treatment of children refugees is inhumane as many are detained. It is arguable that the challenge lies in Australia being  regulated by the judicial review of migration decisions and actions of the Executive meaning that it is difficult to maintain consistency between migration and legislation and when relevant Australia’s international human rights obligations. This essay will compare two recent Australian cases and discuss the implications of it.

  1. Treaty Obligations.

The UN Convention on the right of the child (CRC) established in 1989 gives children the right to preserve their own identity under article 7 and 8. Articles 20 and 22 gives vulnerable children such as refugees the right to practice their culture[1]. CRC has placed new obligations on the state parties regarding the protection of children. The state parties are required to ban the traditional practices which are prejudicial to the health of children and offer rehabilitative measures to children who have been abused, neglected and exploited (Children’s Rights: International Laws, 2017). The International Covenant on Civil and Political Rights (ICCPR) holds that everyone is entitled to his or her security and liberty[2]

CRC was ratified by Australia in 1990. In 1980,  Australia ratified ICCPR. Article 2 of CRC maintains that the member states should respect and ensure that the rights of all children are upheld without any manner of discrimination[3]. Article 7 and 8 hold that the member states shall ensure that the identity of children is preserved and recognised by the law without any interference[4] .Articles 20 and 22 gives vulnerable children such as refugees the right to practice their culture[5]. Article 37 maintains that the arrest, detention or even imprisonment of children should only be done as a last resort[6].

Australian has however fallen short of the requirements of the international treaties. The law in Australia allows asylum seekers who arrive by boat to be detained as the processing of their claims and the determination of their refugee status is done. The law applies to all the people in Australia no matter how old they are[7]. A case in point is 929 children that were put in detention centers in February 2014. In the same year, 177 children were further detained in Nauru. The average number of months that the children spent in the detention centers was 8[8].

Australia was in violation of Article 37 of CRC which holds that there will not be any unlawful or arbitral denial of any child’s right[9]. Article 9 of ICCPR outlaws arbitrary arrest and detention. The treaty makes it clear that minors who are seeking for asylum cannot be detained[10].

 

Around 1200 people that included men, children, and women who sought refuge in Australia, were transferred forcefully to Nauru a remote Pacific Island Nation where they suffered neglect, abuse, and inhumane treatment. The Australian government was accused of failing to addresses the human rights abuses. The retained refugees had to put up with unnecessary delays and were sometimes denied medical care even for conditions that were life threatening[11].

 

Australia’s Policy

The law in Australia holds that all non-citizens who arrive in Australia without a valid Visa must be placed in detention. This goes against Article 37 of CRC which maintains that detention must be done as a last resort[12].

Children without a visa in Australian and in search of Asylum are put in detention beyond the period required to gather basic information about the claim of an asylum, security, health, and identity. Children and adults are required to stay in detention until their visa is processed or a bridging visa issued[13]. The Migration Act 1958 does not give any time limit to the detention, and the courts are allowed a very limited review. The long periods of detention as conflict with the requirements of CRC which holds that detention must be for the shortest appropriate time period[14]. Despite the fact that the Migration Regulations of 1994 contemplate the early release of children by granting them a bridging visa, this was only applied to one unaccompanied child, one mother and her two children in the period that spanned from 1999 to 2002[15].

 

Judicial Review of Migration Decisions.

The Australian federal court can review certain decisions that are made under the Migration Act 1958. The people charged with making decisions as laid out in the Migration Act are the minister and the members of the Administrative appeals tribunal and the Immigration Assessment Authority. The courts are only allowed to review decisions in cases where a jurisdictional error has been made. The court does not, therefore, consider the merits of a refugee’s application and whether they should be granted a visa or not. The court is not allowed to reconsider the facts and the reasons for visa application[16].

The courts can also not take a new factual information into account unless there was a jurisdictional error. This, therefore, gives the minister a lot of powers to make decisions that infringe on the rights of children. The Minister is given the power to establish detention centers which have resulted in the establishment of detention centers in offshore sites thereby denying children their right to education and good health. The seclusion of the detention centers has also denied the children the right to their social development since they are unable to socialize with other children16

The judicial review process was clearly evident in the case involving B and B v The Minister for Immigration and Multicultural and Indigenous Affairs [unreported] 1 & 5 August 2003. The main question before the court was whether the judge had the power to make orders that would allow children to be released from detention. The second question was whether the court had any power to issue orders that would allow children to be protected while in detention[17]. In his ruling, Justice Strickland established that the children were being held indefinitely in unlawful detention. However, he still maintained that it was not in their best interest to order for the short term release of the children. He refused to release the children on the grounds that they would not be separated from their parents and that he was not convinced with the proposed arrangements for the children upon their release.  The judicial system, therefore, condemned the children to indefinite detention which goes against the two international treaties which Australia is a signatory[18].

In a case of FKAG et al. v Australia (HRC, 2013), it was determined that detention pending the proceedings of immigration had to be justified as reasonable and proportionate in view of the prevailing circumstances[19]. Australia was required to abide by the decision of CRC Including chapter 37 of the convention. Experts were in agreement that international law did not allow Australia to detain children for longer than was necessary[20]. In the case, the asylum seekers were found to have suffered arbitrary detention, inhumane and degrading treatment and denial of rights to be informed of the reasons as to why they got arrested. The asylum seekers were freed in 2013[21]. The case went to prove that there was illegal and unlawful detention of children which went against the requirements of the international treaties.

The two cases prove that Australia has violated the rights of children refugees and has failed to abide by the international treaties of which its signatory. The case of FKAG et al. v Australia (HRC, 2013), proves that there is a lot of disconnect between the immigration and the Australian judicial process. It goes to prove that the Australian law as currently constituted is in conflict with international treaties that champion for the protection of the rights of children refugees. The case of B and B v The Minister for Immigration and Multicultural and Indigenous Affairs [unreported] 1 & 5 August 2003 proves that the courts have no power to make decisions to allow children to be released from detention or get protection while in detention. It further proves that there is need to look at what the international treaties say on the protection of children. Both cases highlight the rot that exists in Australia as far as the rights of children are concerned.

  • Conclusion.

Australia has clearly violated the requirements of Conventions for the right of the child and International Covenant on Civil and Political Rights. The law in Australia has allowed for unlawful detention which allows for detention of both children and adults without discrimination for more than the prescribed period of time. Besides that, the detention centers do not fit the conditions that are required to guarantee the welfare and safety of children that are put in detention. The judicial review process gives a lot of power to the minister and gives no option for hearing to the asylum seekers.

 

Reference

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Alen, A., & Doek, J. E. (2006). A commentary on the United Nations Convention on the Rights of the Child: 8/9. Leiden [u.a.: Nijhoff.

Australia: Appalling abuse, neglect of refugees on Nauru. (2016). Retrieved 12 July 2017, from https://www.amnesty.org/en/latest/news/2016/08/australia-abuse-neglect-of-refugees-on-nauru/

Australia’s commitment to children’s rights and reporting to the UN. (2017). Humanrights.gov.au. Retrieved 12 July 2017, from https://www.humanrights.gov.au/publications/australias-commitment-childrens-rights-and-reporting-un

Australia’s Immigration Detention Policy and Practice (2017). Humanrights.gov.au. Retrieved 12 July 2017, from https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention/6-australias-immigration

Bessant, J. (2005). Violations of trust: How social and welfare institutions fail children and young people. Burlington, VT [u.a.: Ashgate.

Carlson, S. N., Gisvold, G., & American Bar Association. (2003). Practical guide to the International Covenant on Civil and Political Rights. Ardsley, NY: Transnational Publishers.

Cases – Remedy Australia. (2017). Remedy.org.au. Retrieved 12 July 2017, from http://remedy.org.au/cases/treaty/1/

Children in detention (2014). ABC News. Retrieved 12 July 2017, from http://www.abc.net.au/news/factcheck/2014-03-31/children-in-detention-is-australia-breaching-international-law/5344022

Children’s Rights: International Laws (2017). Loc.gov. Retrieved 12 July 2017, from https://www.loc.gov/law/help/child-rights/international-law.php

CRC (2017). Ohchr.org. Retrieved 12 July 2017, from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

Crock, M. E., & Myer Foundation. (2006). Seeking asylum alone: A study of Australian law, policy and practice regarding unaccompanied and separated children. Annandale, N.S.W: Themis Press.

Freeman, M. D. A. (2007). A commentary of the United Nations Convention on the Rights of the Child, volume 3, article 3, the best interests of the child. Leiden: Martinus Nijhoff.

International Covenant on Civil and Political Rights (2017). Equalityhumanrights.com. Retrieved 12 July 2017, from https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-civil-and

Joseph, S., & Castan, M. (2013). The International Covenant on Civil and Political Rights: Cases, materials, and commentary.

Judicial Review, (2017). Review of Migration Decisions by the Federal Circuit Court – Federal Circuit Court of Australia. Federalcircuitcourt.gov.au. Retrieved 12 July 2017, from http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/migration/review-migration-decisions-fcc

Liefaard, T., & Doek, J. E. (2014). Litigating the rights of the child: The UN Convention on the Rights of the Child in domestic and international jurisprudence.

McAdam, J., & Chong, F. (2014). Refugees: Why seeking asylum is legal and Australia’s polices are not.

Minister for Immigration and Multicultural and Indigenous Affairs v. B and ors. (2017). Crin.org. Retrieved 12 July 2017, from https://www.crin.org/en/library/legal-database/minister-immigration-and-multicultural-and-indigenous-affairs-v-b-and-ors

Pickering, S., & University of Sydney. (2005). Refugees and state crime. Sydney: Federation Press.

Todres, J., Wojcik, M. E., & Revaz, C. R. (2006). The U.N. Convention on the Rights of the Child: An analysis of treaty provisions and implications of U.S. ratification. Ardsley, N.Y: Transnational Publishers.

[1] Todres, J., Wojcik, M. E., & Revaz, C. R. (2006). The U.N. Convention on the Rights of the Child: An analysis of treaty provisions and implications of U.S. ratification. Ardsley, N.Y: Transnational Publishers.

[2] Australia’s commitment to children’s rights and reporting to the UN. (2017). Humanrights.gov.au. Retrieved 12 July 2017, from https://www.humanrights.gov.au/publications/australias-commitment-childrens-rights-and-reporting-un

 

[3] Australia’s commitment to children’s rights and reporting to the UN. (2017). Humanrights.gov.au. Retrieved 12 July 2017, from https://www.humanrights.gov.au/publications/australias-commitment-childrens-rights-and-reporting-un

 

[4] Alen, A., & Doek, J. E. (2006). A commentary on the United Nations Convention on the Rights of the Child: 8/9. Leiden [u.a.: Nijhoff.

 

[5] Pickering, S., & University of Sydney. (2005). Refugees and state crime. Sydney: Federation Press.

 

[6] Liefaard, T., & Doek, J. E. (2014). Litigating the rights of the child: The UN Convention on the Rights of the Child in domestic and international jurisprudence.

 

[7] McAdam, J., & Chong, F. (2014). Refugees: Why seeking asylum is legal and Australia’s polices are not.

 

[8] Children in detention (2014). ABC News. Retrieved 12 July 2017, from http://www.abc.net.au/news/factcheck/2014-03-31/children-in-detention-is-australia-breaching-international-law/5344022

 

[9] CRC (2017). Ohchr.org. Retrieved 12 July 2017, from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

 

[10] Carlson, S. N., Gisvold, G., & American Bar Association. (2003). Practical guide to the International Covenant on Civil and Political Rights. Ardsley, NY: Transnational Publishers.

Cases – Remedy Australia. (2017). Remedy.org.au. Retrieved 12 July 2017, from http://remedy.org.au/cases/treaty/1/

 

[11] Australia: Appalling abuse, neglect of refugees on Nauru. (2016). Retrieved 12 July 2017, from https://www.amnesty.org/en/latest/news/2016/08/australia-abuse-neglect-of-refugees-on-nauru/

 

[12] Crock, M. E., & Myer Foundation. (2006). Seeking asylum alone: A study of Australian law, policy and practice regarding unaccompanied and separated children. Annandale, N.S.W: Themis Press.

 

[13] Bessant, J. (2005). Violations of trust: How social and welfare institutions fail children and young people. Burlington, VT [u.a.: Ashgate.

 

[14] Freeman, M. D. A. (2007). A commentary of the United Nations Convention on the Rights of the Child, volume 3, article 3, the best interests of the child. Leiden: Martinus Nijhoff.

 

[15] Australia’s Immigration Detention Policy and Practice (2017). Humanrights.gov.au. Retrieved 12 July 2017, from https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention/6-australias-immigration

 

[16] Judicial Review, (2017). Review of Migration Decisions by the Federal Circuit Court – Federal Circuit Court of Australia. Federalcircuitcourt.gov.au. Retrieved 12 July 2017, from http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/migration/review-migration-decisions-fcc

 

[17] Minister for Immigration and Multicultural and Indigenous Affairs v. B and ors. (2017). Crin.org. Retrieved 12 July 2017, from https://www.crin.org/en/library/legal-database/minister-immigration-and-multicultural-and-indigenous-affairs-v-b-and-ors

 

[18] Minister for Immigration and Multicultural and Indigenous Affairs v. B and ors. (2017). Crin.org. Retrieved 12 July 2017, from https://www.crin.org/en/library/legal-database/minister-immigration-and-multicultural-and-indigenous-affairs-v-b-and-ors

[19] Joseph, S., & Castan, M. (2013). The International Covenant on Civil and Political Rights: Cases, materials, and commentary

[20] Children in detention (2014). ABC News. Retrieved 12 July 2017, from http://www.abc.net.au/news/factcheck/2014-03-31/children-in-detention-is-australia-breaching-international-law/5344022

 

[21] Cases – Remedy Australia. (2017). Remedy.org.au. Retrieved 12 July 2017, from http://remedy.org.au/cases/treaty/1/

 


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