lonely refuge: judicial responses to separated children ... - SSRN papers

Sydney Law School Legal Studies Research Paper No. 09/51 June 2009

Lonely Refuge: Judicial Responses to Separated Children Seeking Refugee Protection in Australia Mary Crock This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1420483.

Electronic copy available at: http://ssrn.com/abstract=1420483

Lonely Refuge: Judicial Responses to Separated Children Seeking Refugee Protection in Australia Mary Crock* This article examines the way that Australia has responded to the phenomenon of child asylum seekers who are not travelling as part of a family group or with any other form of guardian or protector. The article begins by outlining Australia's experience of 'separated' children who seek protection as refugees, explaining the particular problems facing both the children and the status determination authorities. The body of the article examines the law and policy relevant to the processing of these children and the way the courts are shaping the law. An analysis is made of two groupings of issues. The first relates to the processing of refugee claims by separated children and the extent to which the courts have adjusted the legal frames of reference to accommodate these young people. The second matter concerns the characterisation of the children and their experiences within the context of the international legal definition of refugee. In so far as it is possible to discern a trend in the Australian cases, the article argues that indications are that the courts are finally coming to recognise the particular needs of these young, vulnerable and very lonely refugees.

1

The Phenomenon of Children Seeking Asylum Alone

The impact of wars and other ‘man-made’ disasters on children has always been one of the most distressing aspects of human conflict and societal dysfunction. Estimates from the United Nations High Commissioner for Refugees (UNHCR) are that almost half of the world’s refugees are children (see UNHCR, 2002). Most children displaced from their homes leave with their families. When seeking asylum in a country of refuge, their fate is commonly shared with that of the family group. What is less well known is that between two and five per cent of refugee children are ‘unaccompanied’ or ‘separated’ children1 – persons under the age of 18 years who are travelling without a parent or other legal or customary guardian. The phenomenon of children travelling alone in search of protection as refugees has increased dramatically over the past decade. In recent years, some countries have seen as many as 15 per cent of the population of asylum-seekers constituted by separated children (see UNHCR, 2001). Although Australia’s experience of asylum seekers has always been modest in world terms (Crock and Saul, 2002: 24), it too has experienced a surge in the number of child asylum seekers. Between 1 July 1999 and 28 February 2003, 4 089 child asylum seekers arrived in Australia. Of these children, 290 were classified as ‘unaccompanied minors’, a category which generally corresponds to that of ‘separated children’ as defined by UNHCR (see Senate Legal and Constitutional Legislation Committee, 2003). With the growth in the number of separated children seeking asylum around the world,2 appreciation has grown of the particular vulnerability of these children. It is now established that in many countries separated children face an increased risk of military recruitment, sexual violence, exploitation and abuse, forced labour, denial of access to education and basic assistance and detention (see Cohn and Goodwin-Gill,


1994; Gallagher, 2001). At the same time, separated children face significant barriers in gaining asylum. At one level, these barriers are procedural. In addition to the cultural and linguistic difficulties experienced by most asylum seekers, the age and vulnerability of separated children place them at a particular disadvantage when attempting to navigate the refugee determination systems of host states. Separated children can be overlooked in the midst of a cohort of adult asylum seekers; they are more likely than adults to suffer processing delays; and they face obvious disadvantage when they are assessed in having their story both told and heard. At another level, the barriers are jurisprudential, and relate to the construction of the Convention relating to the Status of Refugees (the Refugee Convention) and its 3 attendant Protocol (Protocol). Preliminary research suggests that the term ‘refugee’ has tended to be interpreted from an adult-centred perspective, marginalising the specific claims and experiences of persecuted children. In Australia, jurisprudence on children and refugee status of any kind is recent and poorly developed. While there are a few instances where children have been the foci of refugee claims (See Crock, 2004a), in most cases the claims of child asylum seekers are subsumed under the claims of the adults in whose company they are travelling. In other words, their refuge claims stand or fall with those of their parents and guardians.4 This may not present too many problems where the treatment of a given cohort of asylum seekers is generally sympathetic. However, the tendency to overlook children as claimants in their own right can be of great concern where the prevailing climate changes to become one of exclusion and hostility. In the case of the separated children seeking asylum in Australia between 1999 and 2003, the percentage who ultimately gained acceptance as refugees appears to have been similar to the acceptance rate of adult asylum seekers. According to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) of the 290 separated children who arrived without a visa over this period, 274 applied for a Protection Visa in their own right. Ultimately, 267 protection visas were granted 264 temporary and three permanent (see Senate Legal and Constitutional Legislation Committee, 2003).5 In spite of the high rate of visa grants, it is not clear that Australia has generally ‘got it right’ in its treatment of separated refugee children. In May 2004 the Human Rights and Equal Opportunity Commission (HREOC)6 released a report that contains blistering criticisms of the policies and practices adopted by the Australian government in its care and general treatment of children in immigration detention. Particular mention is made of shortcomings in the handling of separated children (referred to in the report as ‘unaccompanied minors’), including fundamental breaches of the Convention on the Rights of the Child (CRC) (see HREOC, 2004: 18 – 19, 740 – 744). While many of the court actions involving separated child asylum seekers have brought little joy for the young litigants, the emerging case law confirms that Australia has not engaged in what could be described as ‘best practice’ in its handling of these most vulnerable asylum seekers. This article represents the starting point for a deeper study of Australia’s treatment of children who have travelled to Australia in search of asylum. Its focus is on the cases taken on appeal on behalf of unsuccessful claimants that provide


glimpses into the procedural and jurisprudential challenges facing young asylum seekers. This study will be complemented in due course by fieldwork involving interviews with young asylum seekers and with various key players in Australia’s asylum process. The fieldwork began in 2003 with the author interviewing some 14 young Afghan asylum seekers about their experiences in travelling to Australia and in seeking asylum. While that study remains in its early stages, reference will be made to some of the preliminary observations made of the young peoples’ accounts. Taking stock of what the courts have had to say about refugee claims made by separated children is not just a matter of academic interest. Even if the young people who came to Australia in the late 1990s made it through the assessment process, the refugee protection regime in this country means that most were granted no more than a three year temporary protection visa. In 2004 many of the separated child refugees are being processed all over again. In this context, it is timely to take stock of what the courts have had to say about both the procedures and the legal standards being used to assess the claims of child asylum seekers. In Part 2, the article considers in turn some key features of the refugee status determination regime – examining both application and appellate processes – and the law governing the guardianship and custody of separated children. Part 3 begins by examining the significance of age in terms of the capacity of a child to make an asylum claim. The separated child’s substantive entitlements to physical or procedural benefits are considered in Parts 3.2 and 3.3. The picture that emerges is of a system that makes few if any concessions for children, either in terms of rights to legal representation or assistance in articulating a refugee claim, or in terms of any presumptive right to protection. There follows in Part 3.4 a discussion of two specific challenges facing children seeking asylum alone. These relate to age and language testing and to links that are drawn between contested findings on these matters and adverse credibility rulings on a child’s asylum claim. Part 3.5 follows with a discussion of a recent case in which the Courts have considered issues relevant to the meaningful participation of children in the status determination process. These concern the notification to refugee claimants of adverse rulings and the extent to which efforts must be made to ensure that a claimant understands the substance of vital communications. Part 4 of the article examines some of the case law that is emerging in Australia on the definition of refugee as it applies to children seeking asylum. The review of the Australian jurisprudence in this article is very much a work in progress, as the court-made law on separated children continues to develop on an almost daily basis.7 In so far as it is possible to discern a trend in the Australian cases, it will be my contention that the signs are positive for Australia’s loneliest refugees. Just as the last decades have seen the particular claims of women refugees articulated and finally, recognised,8 the time seems to be approaching when refugee law in Australia will embrace the special protection needs of children seeking asylum alone.

2 Legal Issues relating to the Treatment of Separated Children Seeking Asylum: The Legislative and Policy Framework 2.1

The Asylum Process

For children seeking asylum alone, the greatest problems lie in accessing and then negotiating the refugee status determination process. Australian immigration law is governed primarily by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). In general terms, this legislation makes few distinctions between child and adult asylum seekers: both are subject to the same requirements. Even with the policy guidelines recently introduced for the treatment of such children, the silences and gaps in the statute cannot be bridged.9 The first and most obvious challenge for both child and adult asylum seekers is in gaining access to territory. After the infamous Tampa Affair in August 2001, key external territories that were used by people smugglers as delivery points for their human cargo were ‘excised’ from Australia’s migration zone (see Crock, 2003). The so-called ‘Pacific Solution’ saw the creation of parallel refugee status determination regimes for ‘onshore’ and ‘offshore’ (or intercepted) asylum seekers. The extraterritorial scheme has been characterised by legal ambiguities almost as complex and controversial as those surrounding facilities established by the United States government at Guantanamo Bay in Cuba (see Oxfam, 2002).10 In relation to the process of seeking asylum within Australia, the most serious deficit is that the Migration Act contains no provisions requiring government officials to inform ‘unauthorised arrivals’ of their rights under the law. Moreover, adult or child, non-citizens have no right to either an ‘application form’ or lawyer unless a specific request is made (see Migration Act s 256). The practical ramifications of this regime are that, in order to access Australia’s asylum procedures, a child who enters Australia without a valid visa must demonstrate without legal assistance of any kind that he or she is claiming asylum and that the claim is not manifestly unfounded. This is done through a ‘screening interview’ carried out upon arrival at the airport for those arriving by plane and in the detention centres for boat arrivals. During the screening interview, separated children are required to tell their story with the aid of an interpreter, if this is necessary. Government funded advisors 11 are only appointed to assist the child to make a refugee claim upon request and after a finding is made that the detainee has ‘engaged’ Australia’s protection obligations in this closed interview. According to the Australian government, the justification for this regime is that officials operate as neutral arbitrators with the standards of international law as their guide. There is simply no need for applicants to be represented or to have knowledge of any aspect of the law (see Senate Legal and Constitutional References Committee, 2000: 72ff). Whether the system in practice is so benign in its operation, however, is open to question, particularly in relation to separated children. As HREOC (2004: 239) notes, the onus placed on asylum seekers to articulate their need for protection is of particular concern in the case of separated children who may not know the language or ‘trigger’ words that officers are looking for.12 If it appears to the officer that Australia does not have an obligation under the Refugee Convention to the individual, he or she will be ‘screened-out’ from the refugee determination process and await removal.

The legislative scheme also poses other problems for children because of the emphasis that is placed on applicants telling the truth (and nothing but the truth). The ‘screening’ interview is recorded and any later changes in an applicant’s story can be used to question an applicant’s credibility. Section 91V(4) of the Migration Act empowers interviewing officers to require detainees to make an oath or declaration to the effect that everything they said was true. The legislation provides further that where a detainee refuses to make such an oath or declaration or where ‘the Minister has reason to believe’ that the detainee was being ‘insincere’ because of the detainee’s ‘manner’ or ‘demeanour’, ‘then, in making a decision about the non-citizen … , the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility’ (s 91V(5) and (6)). Given the problems traditionally associated with interviewing children and/or with the challenges of interpreting demeanour in cross-cultural situations the problems inherent in this scheme are obvious (see Bruck and Ceci, 1998). Quite apart from the difficulties of ‘reading’ a foreign child’s behaviour in a situation as stressful as the first screening interview, there would appear to be real dangers inherent in any scheme that presupposes a link between lying and lack of credibility. In the case of separated children, it is to be expected that at least some of the children will have been told what they should say to the Australian authorities. One cannot always assume a complete correlation between this story and the reality of the young person’s experiences. As the cases discussed at Part 3.4 demonstrate, where questions are raised about the credibility of a child’s testimony, the child will always stand at a disadvantage. In the Australian system, the child’s position is weakened further by legislation that seems on its face to invite an insensitive administrative response. Where separated children in detention are allocated advisors after the screening interviews, the realities of the remote detention facilities mean that for children detained at these facilities, little opportunity is given for young people to form relationships of trust with their agents. Advisors are contracted to assist the young people to reduce their stories into written English and to attend as observers at the substantive refugee status determination interview. As funding is based on a set fee for each case, advisors are often operating under tight time pressures induced by both the commercial interests of their employer and/or by the need to see multiple clients during the same access visit. These constraints are easier to understand when one considers the time, cost and effort involved in getting the contracted advisors (based as they are in the major cities of Adelaide, Melbourne, Sydney, Brisbane and Perth) to the remote detention centres. Many of the young asylum seekers I interviewed appear to have spent little time with their advisors, describing the advice sessions as their ‘second interview’ (see Crock et al, 2004). A number confirmed that an advisor was present during their formal interview with the immigration authorities (described by them as ‘the third interview’) but showed little understanding of the function the advisor was supposed to perform for them. The perception that allocated advisors are part of the government may be due in part to the passive role played by these people during any of the child’s interactions with immigration officials. At no stage does the advisor ‘put’ the case of the asylum seeker or otherwise speak on his or her behalf. Just as importantly, the advisor’s role for an individual in detention is inherently limited as advisors are rarely physically present to explain the significance of developments

outside of the formal hearings. Jaffari’s case, discussed in Part 3.6, is a fine example of the problems engendered by this regime. Assistance is also provided for unsuccessful claimants who elect to appeal to the Refugee Review Tribunal (RRT), although government funding does not cover the Tribunal hearings. If advisors do attend, the legislation dictates that they play a passive role in the proceedings: they may only address the Tribunal on behalf of their clients in exceptional circumstances and at its invitation (see Crock, 1998: 257ff). The cases of Odhiambo and Martizi (Part 3.3) illustrate the challenges posed by the practice of conducting hearings by video link, rather than face-to-face. In these situations, separated children have sometimes had to cope with the double remove of the RRT member in one state and an advisor in another, both equally disembodied. Another problem is that the Migration Act imposes strict time limits on appeals and applications for judicial review that cannot be waived or extended. Under section 142, applicants are given 28 days to appeal to the RRT from the time of notification of an adverse decision. Time limits also apply for appeals to the Federal Court and for applications to the High Court.13 This regime poses challenges for most asylum seekers in detention (see Senate Legal and Constitutional References Committee, 2000: 82 – 85). For separated children, the default is particularly acute because of the extra challenges they face in trying to understand what is happening to them. The case of Jaffari (2001) again demonstrates the devastating impact strict time limits can have on the substantive entitlements of a young person (see below Part 3.6). The migration legislation poses one final problem for separated children worthy of mention. Although ameliorated somewhat by the seminal ruling of the High Court in Plaintiff S 157 (2003), the Migration Act places severe restrictions on the power of the courts to review migration decisions. Constraint on the Federal judiciary – actual or perceived – is a theme that pervades many of the cases discussed in this article. 2.2

Guardianship legislation

If the phenomenon of separated children seeking asylum is relatively novel, the notion of non-citizen children travelling alone is not. The central problem seems to be that the special legislation passed to create a protective scheme for these children did not envisage situations where the interests of the child and those of the government might differ or even be in open conflict. The Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act), provides for the guardianship of separated non-citizen children living in Australia. Such non-citizen children are defined by section 4AAA as persons under the age of 18, who enter Australia without a parent, intending adoptive parent or relative over 21 years of age, and who intend to become permanent residents of Australia. Under section 6, the Immigration Minister is deemed to be the legal guardian of every child so defined until the child reaches majority, leaves Australia permanently or otherwise ceases to fall within the provisions of the Act. Section 6 provides that the Minister ‘shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have’. The guardianship of the Minister extends

to children who arrive in excised zones but (the government asserts) not to those removed to Nauru or Papua New Guinea pursuant to the ‘Pacific Solution’ (see HREOC, 2004: 719). Guardianship of unaccompanied minors in detention is delegated to the DIMIA manager in the detention centre.14 Where the Minister has elected to exercise the discretion to release a child into the community, guardianship is delegated to the relevant state authority responsible for child welfare (see, for example, Haider, 2002). The Immigration Minister’s protective role under the IGOC Act stands in stark contrast with the obligations and powers conferred by the Migration Act and Regulations. If the Minister is deemed to be the legal guardian of separated children who arrive without a visa by virtue of the IGOC Act, the Migration Act requires the same Minister to take these children into immigration detention and to hold them there until they are either granted a visa or removed from Australia (see Migration Act ss 189 and 198). While the children are eligible in theory for release from immigration detention when this is in their best interests,15 the average length of detention for children as of December 2003 was one year, eight months and 11 days (see HREOC, 2004: 68). The simple and devastating problem for the young asylum seekers is that the Minister is both legal guardian, by virtue of section 6 of the IGOC Act, and their prosecutor, judge and gaoler within the complicated matrix of the Migration Act. This problem inheres even where the Minister delegates her or his role as IGOC guardian to a state welfare authority because the delegate is also perceived at law to have a conflict of interest in any conflict between the child and the state.

3

A Preliminary Review of the Jurisprudence on Separated Children and Status Determination Processes.

3.1

The Significance of Age: Guardianship, custody and the legal capacity of children seeking asylum alone

The clash of interests embodied in the multiple roles conferred on the Immigration Minister was demonstrated starkly in the cases of two Kenyan boys who entered Australia in April 1998 as stowaways on board a cargo ship. The Federal Court gave the pair the designations ‘X’ and ‘Y’ to protect their identity in view of their refugee claims and their youth. 16 The two were refused refugee status and steps were taken to remove them from Australia before the statutory period of 28 days allowed for appeal to the Federal Court had expired. The ensuing drama saw the young men flown to Singapore and back,17 then returned to immigration detention. The Minister’s actions were challenged as a contempt of court and as a breach of his obligations as guardian under the IGOC Act (X v MIMA,1999). It was alleged that the Minister was obligated to care for the two through the provision of everything from accommodation, health care and living expenses to the grant of appropriate visas. The Minister’s defence against these claims was to argue that if the young men were minors, the pair had no legal capacity to bring a legal action on their own behalf. On the other hand, Order 43 r 4(3) of the Federal Court Rules prevented the Minister from acting as a tutor or guardian ad litem for the purposes of bringing the

action, because, being the Respondent in the proceedings, he had an interest adverse to the applicants (see X v MIMA, 1999 at [16]). North J reasoned that the conflict of interest in the Minister should not operate to frustrate the capacity of a child to initiate legal action to protect his or her interests, drawing support for his analysis from both the common law and the ‘best interests of the child’ principle enshrined in the CRC. His Honour set out (at [62]) the factors that should be considered in deciding how to proceed: …. It will be necessary for the Court to take into account the age, understanding and capacity of the child to determine the extent to which the child requires guidance and assistance. The Court will also evaluate the nature of the rights asserted and the urgency attending the determination of those rights. It will take account of the ease or otherwise of the child finding a tutor to act. An important consideration against the requirement that a tutor be appointed would be that such a requirement would stifle the litigation. The Court will also assess whether there will be undue prejudice to the opposite party if no tutor is appointed to be responsible for costs in the event that the proceedings fail.

His Honour’s finding that separated children can have the legal capacity to bring actions on their own behalf has been confirmed in a number of subsequent cases (see for example, SFTB, 2003). As the litigation for ‘X’ and ‘Y’ presaged, however, the assertion of this ‘right’ in young asylum seekers has done little to address the substantive disadvantages children face as litigators: most attempts to construct legal rights to be represented or otherwise assisted before the courts have been unsuccessful. 3.2

The physical and procedural entitlements of separated children.

The hollowness of North J’s ruling in X and Y emerges in the substantive hearing that followed (see X and Y, 2000). Although the judge found that the respondents breached their duty as guardians by refusing to agree not to claim costs against the individual who had expressed willingness to act as the young boys’ ‘tutor’ for the purposes of the initial litigation, he declined to rule that the Minister as guardian was liable for the costs of feeding, housing and maintaining the young men. His Honour rejected the contention that the best interests of the child principle enshrined in the CRC could enliven specific obligations in the Minister deemed guardian under section 6 of the IGOC Act in the absence of any provisions to this effect in Australia’s domestic law. By the time the matter came to court, it was accepted that both X and Y had attained their majority. No further assertion appears to have been made about the young people’s entitlement to a visa. Although such arguments may sound either courageous or radical in an Australian context, it is worth noting that until 2002, this is the treatment that was afforded to separated children in England (see Ayotte and Williamson, 2001). Although the practice of granting such visas – and declining to assess the children as refugees – had its own problems,18 the English practice did operate to recognise both the privileged status of children under the CRC and their special vulnerability. 3.3

Guardianship, procedural fairness and the right to assistance

The second set of cases raising questions about guardianship, ‘tutors’ and ‘next friends’ in litigation concerned another pair of stowaways who arrived in Australia on a cargo ship. Simon Odhiambo claimed to come from a family of Sudanese Christians who had suffered persecution at the hands of Islamic militants in Sudan. He stated that militants killed his father when he was around 11 years old. He left Sudan with a friend and went to Nairobi and then to Mombasa in Kenya where he lived on the streets. Odhiambo was 16 years old when he arrived in Australia. His refugee claim was based on the assertion that he would face persecution on religious grounds if returned to the Sudan. The other asylum seeker was 16 year old Peter Martizi, a Hutu from Rwanda, who claimed that he risked persecution by the Tutsis in that country. Martizi had seen his parents killed by the Tutsi and had lost track of his remaining sister after fleeing to Mozambique and then to Kenya where he too had lived on the streets. The claims of both young men were rejected on credibility grounds. In essence, the RRT found that the two did not come from the countries alleged. In Odhiambo’s case, the RRT relied on a linguistic analysis of the young man’s speech that cast doubts on his claims of Sudanese nationality. Both Odhiambo and Martizi were assisted by a legal adviser in the preparation of their written claims, but appeared by themselves before the Tribunal. In fact, neither physically attended the Tribunal, as both were heard using video conferencing. The two argued that the decisions made by the RRT were in breach of both the requirements of the Migration Act and with common law rules of procedural fairness. It was asserted that the Minister was obliged to appoint a guardian to assist them at the hearing before the Tribunal and that the RRT was impliedly required to modify its procedures to account for the applicants’ young age. Intervening as amicus curiae, HREOC argued that the procedures in the Migration Act, read together with the IGOC Act, should be interpreted consistently with Australia’s international human rights obligations – most particularly the best interests of the child principle imposed by the CRC. HREOC contended that the use of video conferencing in place of a face-toface hearing was so inappropriate for children that the procedures followed could not be said to constitute a hearing. The factual findings made by the Tribunal were also challenged for failing to properly take into account and assess relevant matters. These were: the age, maturity and state of development of the appellants both at the time of the hearing and at the time of the relevant events occurring; and the capacity of the appellants to communicate their experiences and the impact of any trauma suffered by them at a young age in this capacity. The issue of the applicants’ youth was considered in the most cursory terms at first instance (Odhiambo, 2001). On appeal (Odhiambo, 2002), the Full Federal Court declined HREOC’s invitation to interpret the code of procedures in the migration legislation so as to take account of the obligations assumed by Australia at international law (at [12]). Instead, the Court emphasised the narrow scope it was allowed in the judicial review of the Tribunal’s rulings in the two cases. It confirmed that formal compliance with the bare terms of the legislation was all that could be required of the RRT in this case.

In more recent times, rulings by the High Court about the matters considered to be fundamental – jurisdictional – errors of law have broadened somewhat (see Plaintiff S157, 2003). Although the ruling in Odhiambo (2002) has not been revisited, there are some signs that a change in judicial approach to issues of representation and procedural fairness might be occurring – at least at the level of the Federal Court. In Appellant WABZ (2004), the Full Federal Court confirmed that the terms of the Migration Act mean that applicants cannot invoke a right to be represented before the RRT. However, French and Lee JJ found that the rules of procedural fairness can operate independently to require the tribunal to allow applicants to be represented where they are otherwise incapable of presenting their case. Their Honours held (at [69]): The Tribunal clearly has discretion to allow a person to be represented before it. The question that arises is whether there may be circumstances in which a decision to disallow representation of an applicant before the Tribunal amounts to a denial of procedural fairness. Considerations relevant to that question include: 1. The applicant’s capacity to understand the nature of the proceedings and the issues for determination. 2. The applicant’s ability to understand and communicate effectively in the language used by the Tribunal. 3. The legal and factual complexity of the case. 4. The importance of the decision to the applicant’s liberty and welfare.

Hill J dissented on one point only: his Honour ruled that the Migration Act could be read so as to entitle an applicant to representation before the RRT, the discretionary powers conferred on that body notwithstanding. The claimants in WABZ were not children and were in the somewhat unique position of having an adviser present who was deliberately (and wrongfully) excluded from the hearing room. Even so, the decision by French J in this case presents an interesting ruling that contrasts markedly with the approach taken in the Odhiambo cases. Whether this case represents a generalised shift in judicial attitude, however, is less clear. Recent jurisprudence from the High Court includes cases that continue to pose problems for separated children in the area of procedural fairness. An example in point is the case of Applicant SGLB (2004). In this instance, the High Court (Kirby J in sole dissent) rejected the contention that the RRT had committed a jurisdictional error in its use of evidence relating to the diagnosis that the applicant suffered from post-traumatic stress disorder. The tribunal had used this finding to make an adverse assessment of the applicant’s credibility. The majority held that the RRT’s acceptance of evidence relating to post-traumatic stress disorder showed a willingness to make allowances for the applicant and so was ‘beneficial’ to SGLB. The Court also held there was other evidence before the RRT to support its findings about the applicant’s reliability. The majority ruled that the RRT was not obliged to obtain further medical or psychiatric reports. 3.4

Separated children and credibility: the use of evidence relating to age and language

In many cases involving separated children unsuccessful in their bid to gain asylum, the issue of minority has emerged as a two-edged sword. If there has been some

recognition that minority implies special need, decision makers have often gone to great lengths to question the age of the claimant as well as his or her nationality or state or origin. The assessments in question seem to have two purposes: to scrutinise the protection needs of the child in simple terms of geographical origin and to test the general credibility of the child. The end result has often been a clash between adult science and the word of the child, with rather predictable (negative) outcomes for the child. For all refugee claimants, an important aspect of meeting the international definition of refugee is telling a credible story. The decision maker must be convinced that the claimant has a real chance of suffering persecution for one of the five Convention reasons if returned to his or her country of origin. If this explains why decision makers examine closely the claims made by young asylum seekers concerning their country of origin, it is less clear why decision makers have often gone to great lengths to determine the age of a child, ordering bone scans and other physical examinations, as the cases examined below indicate. It is difficult to see how such an exercise achieves anything other than the collection of credibility evidence. The finding that a child is older than claimed seems to be used often to support findings that the claimant is disingenuous, manipulative or otherwise not to be believed. From the child’s point of view, adverse findings on both age and country of origin have proved extremely difficult to challenge. Age determinations Where a child comes from a culture that does not mark or celebrate birthdays or from a culture that uses a non-western calendar, the dangers inherent in drawing any inferences from statements about a child’s age are obvious. As the case of Applicant VFAA (2003) illustrates, however, the Courts have been reluctant to question either the methods adopted by the officials to determine age or the use made of the evidence collected. VFAA was a child asylum seeker from Afghanistan of Hazara ethnicity and Shi’a Muslim religion. When interviewed after his arrival, he gave as his date of birth the 27 July 1985. The applicant applied for a protection visa on the inauspicious date of 11 September 2001.19 He appears to have languished in detention for five months or more, during which time the United States instituted its war against terror in Afghanistan. Australia’s involvement in that war seems to have fostered a somewhat idealistic assessment of the situation on the ground in that country, for example with assumptions that the Taliban were no longer a force to be feared in that country. Where the young Afghan asylum seekers had previously been gaining protection visas almost as a matter of course, the cases assessed after September 2001 reveal a significant change in approach. VFAA was one of many young Afghans processed over this period questioned in relation to his age and required to undergo a wrist x-ray (see DIMIA, 2002a). The examination put his age at 19 years. Two months later, a delegate of the Minister refused the applicant’s application for a protection visa, on credibility and other grounds. On appeal, the RRT rejected the contention that a different standard of proof should apply to unaccompanied minors as opposed to adult claimants. It found that the applicant’s age – be it 16, 19 or 22 - had no bearing on the outcome of the review.

In fact, the Tribunal declined to make a finding as to VFAA’s age. Before the Federal Court, it was argued that the RRT fell into ‘jurisdictional error’ by failing to determine VFAA’s age, or to take into account his psychological and physical condition (including his stutter) when assessing his claim to be a refugee. Rejecting these arguments, Merkel J held that the RRT was not mandated by the Migration Act to consider the applicant’s age and physical and psychological condition as matters of fact. His Honour found that aspects of the UNHCR handbook on procedures and criteria for determining refugee status that might have assisted the applicant have no force in Australian law. Accordingly, no error of law could be identified in the tribunal’s decision (VFAA, 2003). The use of linguistic analyses A second source of controversy in the assessment of asylum claims by young claimants has been the method used to determine cultural background, ethnicity and, ultimately, country of origin. In addition to visual assessments of the children based on the identification of racial features (or conformity with racial stereotypes), Australian decision makers appear to have adopted as a common practice the analysis of the speech of the young person. Interviews with the claimants are recorded and sent to a special language laboratory in Sweden for assessment of the likely geographical origin of the speaker. This practice was examined by the courts in the case of Odhiambo (2002). In that case, the RRT requested comments on the linguistic analysis of the young man’s speech but declined an additional interview to allow Odhiambo to ‘analytically prove’ himself. His lawyer wrote to the Tribunal to reiterate that the client had lived in Mombassa for five years, at a formative age, and that it was therefore likely that he spoke Swahili with a Kenyan accent. The lawyer noted (at [11]): We ask that you treat the expert opinion you have received with caution as in our submission there is insufficient evidence available at present to show that such assessments are reliable. We request that you consider such things as the formal qualifications of your experts and when they last resided in the country in question. Any long absence from a country of origin would probably seriously discredit an opinion. It is a given fact that languages and dialects do not remain static, but can and do change and evolve, even over a short period of time.

The Tribunal dismissed Odhiambo’s claim that he was separated from his mother tongue around age 11 and remarked that six or seven years was not enough time to have lost all trace of Dinka in his Swahili. In both this case and that of Peter Martizi (Martizi, 2001) – where a similar analysis of the applicant’s language was made to the same effect - the Federal Court could find no fault in the approach taken by the tribunal. The jurisprudential trend established in these cases has continued. In spite of criticisms made of the methodologies adopted by the Swedish company charged with analysing many of the interview tapes in cases such as WAFV (2003 at [27-28]), the typical outcome of judicial review applications is that the court has found no legal error in the reliance placed on the analysis (see, for example, SCAS, 2002).20

The practice of relying on a disembodied report generated literally and figuratively a world away from the experiences of a separated child seeking asylum underscores the sur-reality of the refugee determination from the perspective of the child. For the child wishing to dispute the assessment made of his or her speech, when applied to the reports from Sweden the label of ‘expert’ has proven an irrefutable presumption against the credibility of the child. This comment does not imply that all analyses of a separated child’s use of language are either correct or incorrect. The simple point is that in cases of dispute the jurisprudence suggests that the superior authority of the expert will always trump the voice of the child if this is the assessment made by the Tribunal. 3.5

The relevance of youth and vulnerability in the interpretation of statutory procedures

The cases that would seem to hold most promise for separated children whose refugee claims are rejected are those in which ambiguities can be found in the legislative provisions relevant to the status determination process. In such instances, the courts have concrete material to consider and interpret and principles of international law can be invoked as an interpretative aide without appearing to introduce novel concepts into Australian domestic law. While the Migration Act imposes strict time limits on applications for both tribunal and judicial review, the legislation provides that the times in question are to be calculated not from the date of the decision, but from the date of notification of the decision in issue (Migration Act, s 477(1) (formerly s 478)). This has enabled at least one separated child to argue that he was not ‘notified’ of a decision until he was both given a written copy of the reasons for decision and a translation and explanation of the legal effect of those reasons. Counsel for Syed Medhi Jaffari argued that the best interests of the child principle in the CRC should operate to require the word ‘notification’ to be given real meaning from the perspective of the child (Jaffari, 2001). Jaffari, a Hazara from Afghanistan, was fifteen years old when he arrived in Australia. He claimed that if returned to Afghanistan, he would be arrested, imprisoned, sent to the front line or killed. Jaffari’s application for a protection visa was refused both at first instance and on appeal on credibility grounds. The RRT was not satisfied that the boy was from Afghanistan, but stated that there was insufficient evidence to determine his country of origin. The Tribunal observed that the applicant appeared to be ‘unsophisticated and somewhat overawed by his situation’ and found him ‘not to be a very satisfactory witness’. It commented that there were matters relating to core aspects of his story that he could not remember or did not know, and concluded that the applicant had fabricated his claim. The transcript of the RRT hearing showed that the applicant had broken down when giving evidence about the disappearance and presumed death of his father. Jaffari sought judicial review of the RRT’s decision in the Federal Court, but his application was lodged outside of the 28-day time limit (then Migration Act s 478(1)(b)). It was submitted that Jaffari’s status as a minor had implications for the validity of his original application, the application to the RRT, the effectiveness of the notification of the Tribunal’s decision, and his application to the Federal Court. At

first instance, French J followed the approach adopted by North J in X and Y (1999) to find that the applicant’s youth did not affect his legal capacity per se. The judge found that Jaffari had been ‘properly assisted’, and that there was nothing to indicate that he did not understand the nature of the process he was undertaking. He concluded that his application was valid, observing parenthetically that a valid visa application is not a precondition of the Minister’s power to grant or refuse a visa: that power is conferred by section 29 of the Migration Act (Jaffari, 2001). French J then considered whether the applicant’s status as a minor rendered the notification of the Tribunal’s decision ineffective. Failure to ‘notify’ a decision would mean that the time limits under the Migration Act had not begun to run. The person charged with informing Jaffari of the outcome of his RRT appeal (the DIMIA manager at Curtin Detention Centre) testified that he gave Jaffari a copy of the adverse decision and explained that his visa application was refused. The officer claimed further that he informed Jaffari that he had 28 days in which to lodge an application with the Federal Court. Jaffari’s evidence was that he understood that he had been rejected and that he had reacted to the news by starting to cry. However, he disputed the assertion that the officer handed him any papers or that he was told about applying for judicial review in the Federal Court. Jaffari claimed that he did not receive the reasons for the decision until some weeks after the incident when he asked for them. It was common ground that the RRT’s decision had never been translated for him. French J found it more likely that the DIMIA official did advise Jaffari about applying for review and that he did tell the boy of the 28 day time limit. His Honour commented (at [34]): ‘It is quite possible that the applicant was so distressed at hearing that he was not to receive a visa, that he did not register the other things he was told’. This observation, nevertheless, did not appear to impact upon the judge’s finding as to the ‘effectiveness’ of the notification Jaffari received. He said (at [11]): The fact that a person is a minor should not be seen, of itself, as imposing any procedural barrier to invoking the legal processes necessary to establish that the person is a refugee and entitled to protection. There can be no gloss upon the jurisdiction of the court conferred by Part 8 of the Migration Act which prevents it from dealing with such an application simply because the applicant is a minor. That is not to say that in an appropriate case such as that of a child of tender years, an order should not be made providing for the appointment of a tutor or a next friend. In my opinion, however, that is not shown to be necessary here.

French J observed that the status of the Minister under the IGOC Act does not in terms affect ‘the conditions under which notification may be given and under which time begins to run for the purposes of an application to this Court’. However his Honour drew attention to the ‘significant discrepancy’ between the treatment of unaccompanied child asylum seekers under the Migration Act, and the guidelines published by the UNHCR. In particular, he noted the obvious disadvantages facing children in detention; and the need for child-sensitive refugee status determination procedures. French J concluded (at [44]): The question of unaccompanied minors seeking asylum is a pressing, current issue. …. While this case has been decided adversely to the applicant on the facts, that is the result of applying the statute, properly construed, to the evidence before the Court. The Act provides little in the way of the kinds of protections contemplated by the UNHCR guidelines. At the very least,

there is a case for considering the provision of legal advice and assistance to unaccompanied minors up to and including the point of judicial review. It is of concern that the application for judicial review in this case was lodged by a 15 year old non-citizen and lodged out of time thus depriving him of such limited rights of review as he would otherwise have enjoyed.

The judge’s findings were endorsed by the Full Federal Court on appeal in WACB (2002 at [7]-[8]). That case held that the juvenile status of a separated child from Afghanistan could not alter the literal operation of the time limits in the legislation. It rejected arguments that the notification provisions in the legislation should be interpreted so as to imply a special duty of care in the case of unaccompanied child detainees. With the case now on appeal to the High Court, the central issue in dispute seems to be whether the relevant provisions in the Migration Act imply notification of a bare decision only, or whether the requirement is to inform the applicant of the substance and content of any ruling. Before the High Court, counsel for the Minister argued that it was enough that the young man was advised of the adverse outcome (‘the decision’) without being informed of the reasons. Such an approach denies any legal requirement to take account of factors that might impede an applicant from understanding the legal import of the process in which she or he is engaged. In the case of a separated child who has no understanding of Australian legal process; who speaks no English and who has no ‘next friend’ to explain what is going on, it is an interpretation that gives no practical meaning to the term ‘notification’. When the case was argued before the High Court, (WACB, 2004) counsel for WACB argued that the terms of the former section 478 must be read together with the comprehensive provisions in sections 430-430B governing the preparation and delivery by the RRT of the reasons for decision. Read together, these provisions could support a ruling that the intention of Parliament was to require notification to be meaningful so as to provide an applicant with a real opportunity to exercise his or her legal right to appeal an adverse decision. It is at this point that international law becomes relevant to the interpretative process. In the case of applicants for refugee status, Australia has an undisputed obligation not to refoule - or return - a refugee to a country where that person has a genuine fear of persecution for a Convention reason. It is at least arguable that the rationale behind the detailed notice provisions is to construct a regime that minimises the risk of refouling a genuine refugee. In the case of refugee children, the principles enshrined in the CRC would act to reinforce these presumptions – most particularly Article 22 which provides specifically for the protection of refugee children.

4

Separated Children and the Definition of Refugee

4.1

The Refugee Convention definition

In most respects, the legal starting point for children who are outside their country of origin and who cannot or do not wish to return for fear of personal harm is the same as that of any asylum seeker. The Refugee Convention and its attendant Protocol create a protection framework that represents an exception of sorts to the sovereignty principle that in the normal course gives states the right to determine who enters or

remains on their territory. With few qualifications, persons who gain official recognition as refugees must be granted protection because of the obligation not to refoule refugees to a place where they would face persecution on one of the five Convention grounds (Refugee Convention, Art 33). The international definition of a refugee is found under Article 1A(2) of the Convention, which provides that the term ‘refugee’ shall apply to any person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

With the rising number of separated children seeking refugee status all over the world, increasing attention is being paid to the manner in which this definition is interpreted where the refugee claimant is a child. In this article I will not attempt to explore anything like the full range of issues that have arisen about the special harms suffered by children and the problems that children encounter in having these harms recognised as ‘persecution’ for the purposes of the Refugee Convention. Rather, this section of the article will examine two aspects of the definition: the test used for determining fear of persecution; and the characterisation of separated children as a ‘particular social group’ for the purposes of the definition. 4.2

Defining fear: subjective and objective tests

The leading Australian case on the definition of ‘refugee’ remains the first case in which the High Court gave serious consideration to the meaning of Article 1A(2) of the Refugee Convention, as amended (Chan Yee Kin, 1989). In that case, the Court confirmed that an individual must both show a subjective fear of persecution upon return to his or her country of origin and demonstrate from an objective viewpoint that the fear is ‘well founded’. Chan Yee Kin stands for the proposition that, while the decision maker must make an objective assessment of facts to determine whether there is a ‘real chance’ that the applicant would be persecuted on return, the applicant’s ‘fear’ must also be assessed in terms of the subjective fear held by the applicant. At even the most basic level, separated children can have greater difficulty than their adult counterparts in satisfying this subjective test. In my experience with the young people interviewed in 2003, the decision to flee the child’s country of origin was made in every case by parents or guardians who were conscious of the threat to the minor. In some cases the child resented the decision and actively resisted suggestions that the flight might have involved fear on his or her part. Put simply, the minor’s capacity for subjective fear may be marred by his or her stage of development. Policy guidelines for decision makers released by DIMIA in January 2004 (DIMIA, 2004), recognise the possibility of separated children having difficulty satisfying the subjective requirement of the Convention definition of ‘refugee’. Decision makers are advised to give more weight to the objective elements of a child’s claims. The guidelines also state that if there is reason to believe that the

parents or guardian of a separated child have a well-founded fear for the persecution of their child, then the child may be imputed to have such a fear. Although a useful development, it is worth noting that these guidelines were not in existence at the time the most recent cohort of separated children arrived in Australia.21 4.3

Separated children, ‘particular social groups’ and persecution

Whilst the vulnerability of child asylum seekers has now been recognised by the policy makers, there has been reluctance by the courts to recognise that this vulnerability might itself ground a claim to refugee status. Central to this issue has been the question of whether separated children are both identifiable as members of a ‘particular social group’ and whether they can be regarded as being at risk of persecution by reason of such membership (see Refugee Convention, Art 1A(2)). Proposed originally as a safety net provision within the refuge definition, the social group ground has been the centre of protracted debate (see, for example, Crawley, 2001; Mathew, 2000; Spijkerboer, 2000; Dauvergne, 1998; and Macklin, 1995). The early jurisprudence both in Australia and in comparable Western countries defined the phrase ‘particular social group’ in terms of ‘immutable’ characteristics and/or association between members of a group. The Canadian Supreme Court in Canada (Attorney General) v Ward (1993) provided three examples of such groupings: (1) Groups identified by an innate or unchangeable characteristic; (2) groups whose members associate voluntarily for reasons fundamental to their human dignity; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The Australian courts have expanded these categories by confirming that association between members is not a prerequisite for a ‘social group’. Because the Convention requirement is that persecution be ‘by reason of’ membership of a social group, it was held that the existence or otherwise of a group was less important than the perception that such a group exists (Kuldip Ram, 1995 at 317; Chen Shi Hai, 2000; Zamora, 1998). In the cases involving fugitives from China’s ‘one child’ policy, the other area of controversy was whether common experiences of persecution could transform otherwise unrelated individuals into a social group. In a split decision, a majority of the Australian High Court ruled that a particular social group must be identifiable by a characteristic or attribute common to all members of a group other than a shared fear of persecution. In other words, a social group cannot be identified solely on the basis of shared experiences of persecution (see Applicant A and B, 1995; Crock, 1998: 150151; and Dauvergne, 1998). While the Taliban were in control in Afghanistan, the vast majority of the young Afghan asylum seekers in Australia had little difficulty in gaining recognition as refugees on the same bases as their adult counterparts. Many were Shiite Hazara – members of a group widely accepted as being at risk of persecution from the predominantly Pashtun Taliban on grounds of both ethnicity and religion. After the fall of the Taliban controlled government, however, the children lost the comfort of the broad and accepting approach that had been taken to the Afghan asylum seekers. The predominant view in the Federal Court has been that separated children cannot be identified as belonging to a ‘particular social group’ for the purposes of the

refugee definition. Applicant SHBB is an unaccompanied minor who claims that he escaped forcible conscription by the Taliban. His appeal was heard by the Full Federal Court at the same time as that of Applicant VFAY, another separated youth with a similar harrowing story of escape and flight. In the two cases different arguments were raised about the social groups to which young people in the applicants’ situation might belong. In both instances the Full Federal Court upheld the rejection of the boys’ claims on the basis that the undisputed vulnerability of separated children did not mean that they faced persecution by reason of their membership of a cognisable social group. In SHBB, the Court held that the RRT did consider whether or not the claimant was a member of a particular social group: it made a defensible finding of fact that Afghan society does not recognise ‘young males without a protector’ as a social group (at [99]). In VFAY (2003), the Full Court ruled that it was not enough to show that the general conditions in Afghanistan might have a differential impact on some groups. A well-founded fear in itself does not create refugee status. The fear of persecution must be by reason of the individual’s membership of a particular social group (at [57]). While the High Court has yet to dispose of the appeals in these cases, recent rulings from that Court suggest that these Federal Court rulings may not stand the test of time. One challenge for the young men is in demonstrating that the RRT’s characterisation of their claims involved an error of law, rather than a finding of fact. In Dranichnikov (2003), the High Court confirmed that the failure to identify correctly a social group for the purposes of a refugee claim does involve an error of law - indeed, an error serious enough to constitute a ‘jurisdictional error’.22 The most significant ruling in recent times in this category of cases, however, does not involve an unaccompanied minor but a young adult male. The case of Applicant S (2004) concerned a young Afghan male of Pashtun ethnicity who fled Afghanistan after narrowly avoiding recruitment by the Taliban on two occasions. The RRT rejected the man’s refugee claim on the basis that he was not ‘targeted to the extent that he was listed or registered for recruitment’ by the Taliban. He was merely seen as a young, able-bodied man who was available in a particular area at a particular time. The High Court upheld the first instance ruling by Carr J to the effect that this characterisation of the applicant’s case revealed a failure to consider at all whether the applicant belonged to a ‘particular social group’ for the purposes of the Refugee Convention (at [13]; Applicant S, 2004). The High Court (Callinan J dissenting) concluded that both the Full Federal Court and the RRT fell into legal error in their characterisation of the claimant’s status. The Full Court erroneously advocated a subjective test (perceptions of individuals by the Afghan community), while the RRT also asked itself the wrong questions by failing to consider whether young able bodied men in Afghanistan emerge as a distinct group when seen in the light of ‘legal, social, cultural and religious norms prevalent in Afghan society’ (at [50]). For the separated children at the heart of the applications in SHBB and VFAY, the ruling in Applicant S provides cause for hope. In a society where family ties and clan allegiances determine virtually all aspects of a person’s daily existence, separated children take on dramatically different characteristics depending on whether a subjective (inter-societal) perspective or an objective (third party) perspective is used.

Stripped of clan relationships and protection, such children are at once manifestly at risk and invisible within Afghan society. The adoption of the subjective test approach explains why the RRT in both SHBB and VFAY found that the young people did not constitute a particular social group. If an objective test is used, however, the results are starkly different. The children stand out as a ‘particular social group’ not because their youth makes them vulnerable, but because social, cultural and legal factors within Afghan society mark the children as different or distinct within the community. The dislocation of the children distinguish them from the wider body of children in Afghanistan with whom they share the heightened vulnerability to harm common to all children in situations of war and deprivation. There is one other aspect of the High Court’s ruling in Applicant S that is likely to benefit children who seek asylum alone. The Court also considered the question of whether laws or policies of general application, or behaviours that are not predicated on ‘enmity or malignity’, can ever constitute persecution for the purposes of the Refugee Convention. In Applicant S, the Minister submitted that young, ablebodied men could not be refugees because the Taliban ‘merely sought to harness the valued resource of those capable of fighting’ (at [37]). The fact that young conscripts might die or suffer harm in the fighting did not mean that the regime was trying to rid itself of the young men. The Court rejected this submission in a ruling that provides a welcome indication that legal formalism should not be allowed to override basic notions of ethics and human rights in the interpretation of the Refugee Convention. The Court confirmed that the characterisation of persecutory behaviour is to be determined by the standards of human rights law and by the extent to which an individual is subjected to discriminatory treatment. Gleeson CJ, Gummow and Kirby JJ note that the more ‘ad hoc and random’ the infliction of harm, the more likely it is that an individual is being subjected to ‘persecution’ rather than a ‘law of general application’.23 The test is whether a general law has a legitimate objective and uses means proportionate to the objects desired. In Chen Shi Hai (2000), the Court stated (at 317): Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government objective depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.

Again, for separated children seeking asylum alone, this approach has the benefit of expanding the categories of persecutory behaviour to include actions that might be taken in line with either broad scale policies or with the tolerance of the authorities. The relevant standard to be applied is that of the ‘civilised and organised society’.

5

Unfinished Business

In early 2004, the High Court stood appraised of a series of cases involving children, detention and the search for asylum from persecution.24 The cases demonstrate that Australian advocates – and the courts - are finally beginning to think seriously about children as applicants in their own right (see further Crock 2004a and 2004b). Although it remains to be seen how the High Court will respond to these cases, at the very least the issue of children and refugee status is now clearly on the judicial agenda. The need for change in Australia’s approach to refugee children is difficult to deny. The release of HREOC’s seminal report on the treatment of children in

detention has placed the needs of children seeking asylum front and centre. With the prospect of an imminent federal election, the numbers in detention have declined as the government has made a concerted effort to reduce the negative electoral impact of policies regarded as being overly harsh.25 There have also been positive developments within the administration with the drafting of policy guidelines to redress some of the silences in the migration legislation in the handling of child refugee claimants. The fact that images of children in immigration detention could be considered to have a negative electoral impact barely three years after the harsh fury of the Tampa Affair is remarkable but understandable. Under international law, children have been recognised with their own ‘super’ human rights convention as testament to the special place of children in human society (see CRC; Van Beuren, 1995). In a country with as strong a basic commitment to human rights as Australia, it might be expected that, ultimately, public sentiment would favour treating child refugees with dignity and humanity. The need for the law to keep pace with the moral imperative to observe and respect the human rights of child asylum seekers is compelling. Children are not adults in miniature: special measures are required to hear their stories and to recognise the harms they face (see Bhabha and Young, 1999). If procedures need to be adapted to give real meaning to concepts of procedural fairness for children, so too do the jurisprudential principles need re-writing. The Australian courts are now uniquely placed to take a lead in developing the global jurisprudence on children and refugee status. If children everywhere represent the future of our troubled human society, the importance of the task now before the courts has never been more pressing.

Notes *

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This article is the product of a major research project funded by The Myer Foundation in Melbourne, The Australian Research Council (under its Linkage Grants program) and the MacArthur Foundation in Chicago. Special thanks are due to Louise Pounder and Courtney Meade for research assistance and work on the first draft of this article in 2003, and to Azadeh Dastyari, Cathy Preston-Thomas and Jessie Hohmann who have worked on various aspects of the project in 2004. Thanks are due also to Jacqueline Bhabha, Ron McCallum and Savitri Taylor who provided commentary on drafts of this paper. Any errors that remain are my own. The term ‘separated children’ is used in preference to the term ‘unaccompanied children’, as experience has shown that refugee children may be accompanied by an extended family member or other adult, but still face risks similar to unaccompanied refugee children (see UNHCR, 2002: 3). According to the Women’s Commission for Refugee Women and Children (2002), approximately 5 000 separated children are detained by US immigration authorities each year. Europe experiences similar numbers (see Separated Children in Europe Programme, 2000; Save the Children, 2000; Ruxton, 2000; Ayotte, 2000). The Convention relating to the Status of Refugees was done at Geneva on 28 July 1951, and was amended by the Protocol relating to the Status of Refugees at New York on 31 January 1967. The Protocol was signed by Australia on 31 January 1967, and ratified on 13 December 1973. The Convention covers events causing a refugee problem before 1 January 1951, while the Protocol extends the definition to events occurring after that date. Australia does not follow the practice in New Zealand of requiring every asylum seeker irrespective of age or ability to complete a separate claim form.

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Figures produced at the Senate Legal and Constitutional Legislation Committee additional estimates hearing on 17 February 2004 now show that since November 1999, DIMIA has granted a total of 8 912 temporary protection visas: 3 661 to Afghans, 4 269 to Iraqis, 475 to Iranians and 507 to other nationalities. See HREOC, 2004, and reports in 1998, 2000, 2001 and 2002. One notable exclusion from this article is a discussion of the litigation instigated to challenge the constitutionality of what is known colloquially as ‘the Pacific Solution’ (see, for example P1, 2003). This is the policy that has seen Australia deflect asylum seekers to the Pacific Island of Nauru, where some remain in detention at time of writing. There is now a vast literature on the subject of women and refugee status. See, for example Crawley, 2001; Spijkerboer, 2000; and Macklin, 1995. On the issue of gender more broadly, see for example, Walker, 2003. It will be a focus in my on-going research to determine whether the introduction of the following guidelines has resulted in noticeable changes in the experiences of separated children seeking asylum. In early 2002, the RRT issued Guidelines on Children Giving Evidence (RRT, 2002), addressing matters such as a child’s capacity to take an oath; competency to give evidence; representation; the assessment of evidence and issues concerning children as witnesses. DIMIA (2002) issued policy guidelines in December 2002. These explain the operation of both the migration legislation and the IGOC Act, setting out a strategy for the reception and management for ‘unaccompanied wards’ including the appointment of a ‘mentor’ from within the detainee community. The guidelines acknowledge that detention is to be the norm for separated children arriving without authorisation. It was not until January 2004 that the Department issued guidelines that use the CRC and UNHCR guidelines on unaccompanied children as a framework (DIMIA, 2004). These guidelines address issues relating to both the processing of refugee claims and the definition of the Refugee Convention in cases involving child claimants. According to the additional estimates hearing of 17 February 2004, 13 unaccompanied minors were interviewed in Nauru in 2002 (Senate Legal and Constitutional Legislation Committee, 2004). The scheme is known as the Immigration Advice and Application Scheme (IAAAS). Advisors are appointed through a tendering process which sees the successful tenderer paid on a per case completion basis. There is no requirement that advisors have legal qualifications or training although they must be registered migration agents, which imputes knowledge of migration law and policy. Officers look for words like ‘persecution’, ‘fear’ and language denoting safety concerns or apprehension of harm or discrimination. 28 days to Federal Court (s 477) and 35 days to High Court (s 486A). Compare, however, the ruling in Plaintiff S157, 2003 (see Beaton-Wells, 2003). A formal delegation of the powers of guardianship took place on 11 January 2002. Before this date, the Department acted as a representative of the Guardian to unaccompanied minors (HREOC, 2004: 721). In limited circumstances, asylum seekers who arrive in Australia unlawfully may be granted a bridging visa (see Migration Act s 72; Migration Regulations 1994 reg 2.20). Unaccompanied minors may also be moved to alternative places of detention such as Residential Housing projects (see DIMIA 2002a and 2002b). The law now requires all parties involved at any stage of the application or appeal process to suppress the name and any identifying features of any asylum seeker (see Migration Act s 91X). The rationale is to protect the asylum seeker against reprisals if their refugee claim fails and they are returned to their country of origin. For those recognised as refugees the secrecy is supposed to protect the interests of any relatives and friends remaining in the country of persecution. In practical terms, the use of numbers and the propensity for those numbers to change at different stages of the process means that the task of gathering details about child asylum seekers is rarely straightforward. Two cases discussed here are examples in point. On appeal to the Federal Court, Jaffari’s case became Applicant WACB. For the purpose of this article, where a separated child has been ‘named’ in a published ruling, this is the name that will be used when discussing the case in question. In other cases, the acronym or number used by the courts will be adopted, but every effort will be made to trace the child’s story from behind the legal mask.

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23 24

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In fact, the pair was put on a plane to Singapore on 3 August 1998. On the same day urgent applications were made to the Federal Court to prevent the young men’s removal from Australia, together with applications seeking judicial review of the RRT’s decisions. The Court granted the order preventing the applicants from leaving Australia but the plane took off anyway. After discussions with the airline, it was agreed that the applicants would be issued with visas allowing them to return to Australia after the plane had made its scheduled trip to Singapore. Issuing the children with visas that terminated upon the children attaining the age of 18 years created difficulties because the children were literally left in limbo. Because of time spent in England, they had trouble demonstrating refugee claims, and yet were not eligible for any other visa class. This was the day on which North J in the Federal Court delivered a decision ordering the Federal government to allow the asylum seekers taken on board the Tampa to be landed in Australia. Within hours of the ruling the world’s attention was consumed by the drama of the terrorist attacks in America. The failure to give an applicant a copy of the raw data on which language analysis was based and the particulars of the person who undertook the analysis has been found to be a denial of procedural fairness (see WAIO, 2003). The majority of separated children arrived between 1999-2001 (see HREOC, 2004: 71). The identification of such errors will always empower a Court to overrule or vacate an administrative decision (see Beaton-Wells, 2003). See [39]- [49], discussing the High Court ruling in Israelian, 2001. See, for example Applicants M276/2003; Al Khafaji; Behrooz; P1/2003; Singh v Commonwealth of Australia. See also WAIK (2003), which is currently on appeal to the High Court. Note that the High Court delivered judgment in Applicant B on 29 April 2004. Even so, in early July 2004, there were still children detained in immigration centres in mainland Australia, with others remaining in custody on the Pacific Island of Nauru (see Refugee Council of Australia, 2004).

References Ayotte, W and L Williamson (2001) Separated Children in the UK - An Overview of the Current Situation Save the Children, British Refugee Council. Ayotte, W (2000) Separated Children Coming to Western Europe: Why they Travel and How They Arrive London: Save the Children. Bhabha, J (2002) ‘Boundaries in the Field of Human Rights: International Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights’ 15 Harv Hum Rts J 155. Bhabha, J and W Young (1999) ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New U.S. Guidelines’ 11(1) Int’l J Refugee L 87. Bruck, M and S Ceci et al. (1998) ‘Reliability and Credibility of Young Children's Reports’ 53 (2)American Psychologist 136 Cohn, I and G Goodwin-Gill (1994) Child Soldiers: The Role of Children in Armed Conflicts Oxford: Oxford University Press. Crawley, H (2001) Refugees and Gender: Law and Process Bristol: Jordan Publishing Limited Crock, M (1998) ‘Apart from Us or a Part of Us? Immigrants’ Rights, Public Opinion and the Rule of Law’ 10 Int’l J Refugee L 49. Crock, M (2003) ‘In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ 12(1) Pacific Rim Law and Policy Journal 49. Crock, M (2004a) ‘Childhood Enchained: Constitutional Deficiency or Careless Neglect?’ Paper Presented at the Annual Constitutional Law Conference, 20

February 2004 at http://www.gtcentre.unsw.edu.au/Crock-Paper.doc (accessed 9 July 2004). Crock, M (2004b) ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ 26 (1) Sydney Law Review 51. Crock, M and B. Saul (2002) Future Seekers: Refugees and the Law in Australia Sydney: The Federation Press. Dauvergne, C (1998) ‘Chinese Fleeing Sterilisation: Australia’s Response against a Canadian Backdrop’ 10 Int’l J Refugee L 77. Gallagher, M (2001) ‘Soldier Boy Bad: Child Soldiers, Culture and Bars to Asylum’ 13 Int’l J Refugee L 310. Hathaway, J (1990) ‘A Reconsideration of the Underlying Premise of Refugee Law’ 31 Harv Int L J 129. Kneebone, S (ed, 2003) The Refugee Convention: Fifty Years On Aldershot: Ashgate. Macklin, A (1995) ‘Refugee Women and the Imperative of Categories’ 17 Hum Rts Q 213. Mathew, P (2000) ‘Conformity or Persecution: China’s One Child Policy and Refugee Status’ 23 UNSWLJ 103. Myers J, K Saywitz et al. (1996) ‘Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Court-room Testimony’ 28 Pacific Law Journal 1 Roberts-Smith, L (1989) ‘Communication Breakdown: the Importance of Cultural Language Awareness in Court’ 27(7) Law Society Journal 70. Ruxton, S (2000) Separated Children Seeking Asylum in Europe: A Programme for Action Stockholm: Save the Children. Spijkerboer, T (2000) Gender and Refugee Status Aldershot: Ashgate. Van Beuren, G (1995) The International Law on the Rights of the Child Dordrecht, Boston, London: Martinus Nijhoff. Walker, K (2003) ‘New Uses of the Refugees Convention: Sexuality and Refugee Status’, in S Kneebone (ed.) The Refugee Convention: Fifty Years On.

Reports Australian Law Reform Commission and HREOC (1997) Seen and Heard: Priority for Children in the Legal Process, ALRC Report No. 84. Brisbane Refugee Health Network, and Refugee Claimants Support Centre Submission to HREOC Inquiry into Children in Immigration Detention at http://www.hreoc.gov.au/human_rights/children_detention/submissions/bris_r efugee_health.html (accessed 9 July 2004). Crock, M, C Preston-Thomas, A Dastiyari, (2004) Seeking Asylum Alone: Separated Afghan Children in Australia – A Preliminary Report Sydney: The University of Sydney. HREOC (2004) A Last Resort: National Inquiry into Children in Immigration Detention. HREOC (1998) Those Who’ve Come Across the Seas: Detention of Unauthorised Arrivals. HREOC (2001) A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner.

HREOC (1999) Immigration Detention: Human Rights Commissioner’s 1998-99 Review. HREOC (2000) Report on the Human Rights Commissioner’s Visit to Curtin IRPC. Oxfam/ Community Aid Abroad (2002) Adrift in the Pacific: The Implications of Australia’s Pacific Refugee Solution, February at http://www.oxfam.org.au/campaigns/refugees/pacificsolution/ (accessed 9 July 2004). Refugee Council of Australia, Facts and Stats: Statistics at 17 March 2004 at http://www.refugeecouncil.org.au/html/facts_and_stats/stats.html#stat5 (accessed 9 July 2004). Senate Legal and Constitutional Legislation Committee (2004) Official Committee Hansard: Additional Estimates, 17 February. Senate Legal and Constitutional Legislation Committee (2003) Immigration and Multicultural and Indigenous Affairs Portfolio, Questions Taken on Notice, Additional Estimates Hearing: 11 February. Senate Legal and Constitutional References Committee (2000) A Sanctuary Under Review: An Examination of Australia’s Refugee and Humanitarian Processes. Canberra. Women’s Commission for Refugee Women and Children (2002) Prison Guard or Parent?: INS Treatment of Unaccompanied Refugee Children.

Legislation and Policy Documents DIMIA (2002a), Migration Series Instruction 370: Procedures for Unaccompanied Wards in Immigration Detention Facilities 2002. DIMIA (2002b), Migration Series Instruction 371: Alternative Places of Detention, 2 December 2002. Immigration and Guardianship of Children Act 1946 (Cth). Migration Act 1958 (Cth). Migration Regulations 1994 (Cth) RRT (2002) Guidelines on Children Giving Evidence.

Cases Applicant A & B v MIEA (1997) 190 CLR 225 Applicant S v MIMIA [2001] FCA 1411 Applicant S v MIMIA [2004] HCA 25 Applicants M276/2003, Ex parte – Re Woolley & Anor [2004] HCATrans 2 Applicant WAFV of 2002 v MIMIA (2003) 125 FCR 351 Behrooz v Secretary DIMIA & Ors, SHDB v Godwin & Ors [2003] HCATrans 456 Canada (Attorney General) v Ward [1993] 2 SCR 689 Chen Shi Hai v MIMA (2000) 201 CLR 293 Dranichnikov v MIMIA (2003) 77 ALJR 1088 Haider v MIMIA [2002] FCAFC 163 Israelian v MIEA (2001) 206 CLR 323 Jaffari v MIMA (2001) 113 FCR 10 Long v MILGEA (1996) 65 FCR 164 Martizi v MIMA (2002) 122 FCR 29 MIMIA v Al Khafaji [2003] HCATrans 458

MIMIA v VFAY; MIMIA v SHBB [2003] FCAFC 191 MIMA v Zamora (1998) 51 ALD 1 MIMIA v WAIK [2003] FCAFC 307 MIMIA v B (2004) 206 ALR 130 MIMIA v SGLB [2004] HCA 32 Odhiambo v MIMA (2002) 69 ALD 312 Odhiambo v MIMA (2002) 122 FCR 29 P1/2003 v MIMIA [2003] FCA 1370 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Kuldip Ram v MIEA (1995) 130 ALR 314 Syan v RRT and Anor (1995) 61 FCR 284 SCAS v MIMIA [2002] FCAFC 397 SFTB v MIMIA (2003) 129 FCR 222 SHBB v MIMIA (2003) 175 FLR 304; [2003] FMCA 82 Singh v Commonwealth of Australia & Anor [2004] HCATrans 5 VFAA v MIMIA [2003] FMCA 389 VFAY v MIMIA [2003] FMCA 35 WABZ v MIMIA [2004] FCAFC 30 WACB v MIMIA [2004] HCATrans 89 WACB v MIMA (2002) 122 FCR 469 WAFV v MIMIA [2003] FCAFC 240 X v MIMA (1999) 92 FCR 524 X v MIMA [2000] FCA 704

International Instruments and Documents Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954). Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988). UN Guidelines for the Prevention of Juvenile Delinquency (1990). UN Rules for the Protection of Juveniles Deprived of their Liberty (1990). UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)(1985). UN Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) (1990) UNHCR/ Save the Children (2000) ‘Statement of Good Practice’ of the Separated Children in Europe Programme. UNHCR Executive Committee (1988) Conclusion 44 on Detention of Refugees and Asylum Seekers; Guidelines on Refugee Children. UNHCR Executive Committee (1994) Refugee Children: Guidelines on Protection and Care. UNHCR Executive Committee (1997) Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum.

UNHCR Executive Committee (1999) Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers. UNHCR Refugee Children Co-ordination Unit (2002) Summary Note on UNHCR’s Strategy and Activities concerning Refugee Children. Geneva. UNHCR Global Consultations on International Protection (2002) Refugee Children, 4th Meeting, EC/GC/02/9, 25 April UNHCR (2002) Number of Asylum Applications Submitted by Unaccompanied or Separated Children. UNHCR (1993) Policy on Refugee Children E/SCP/82. UNHCR (1994) Refugee Children: Guidelines on Protection and Care.