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A Case of Double Tragedy. Children in Australian Migration Detention Centers.Joel KipwambokAustralia took long time before they changed the so called white only policy that existed in gold-rush era. The country has managed to shade off that ugly image within a short period of time and has emerged as a role model in modern day democracy. This can be seen in ethnic, race, religion and social make up of Australia. According to Australian Bureau of Statistics(ABS), nearly half of Australians had either been born overseas or one or both parents had been born overseas. The report also indicated that over 300 different languages are spoken in Australian homes. When it comes to religion and system of belief, Australia is a religiously diverse nation. It is with this multiculturalism talk that made me consider doing law review research on children seeking asylum and especially those who are in detention centers within and outside the Australian territory. Most of these children are from countries with high Islamic population and that has made some people uncomfortable. But is it about religion or is it about security and safety?There has been an increased attention and reports of immigrants risking it all to flee their home countries in search of peace, stability and better lives. Our television screens in the recent times has been awash with news of people drowning in the high seas. The images are confronting hence the increase on the debate about refugees and asylum seekers. Of these fleeing population are a good number of children and young people who are escaping violence and abuses mated on them by violent regimes and various factions who have waged war against each other. The Commonwealth government of Australia is one of the signatory of several United Nations Conventions and Protocols that protects the rights of children and asylum seekers. So, who is refugees? The 1951 Convention defines a refugee as a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, 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. The Department of Immigration and Border Protection reported that just under 50,000 unauthorized boat arrivals came to Australia between 2007 and 2013. In the same six-year period, Australia accepted about 1.3 million migrants that came through other means. The so-called boat people therefore represent less than 3.5 per cent of all arrivals in Australia in the six-year period. In comparison, Australia’s problem is dwarfed by a number of nations. Jordan for instance has had 611,685 Syrians arrive in the last three years, Lebanon has had a staggering 1.1 million, Italy received over 150,000 refugees between January and August 2014 and almost all arriving by boat from North Africa.Australian government has signed and ratified some of the treaties, protocols and conventions that protects refugees and asylum seekers. These include but not limited to the following, The United Nation Convention on the Rights of the Children, The International Covenant on Civil and Political Rights, The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, The United Nations Convention on the Rights Refugees (UNHCR) and United Nation Declaration of Human Rights (UNDHR). These conventions spell out responsibilities and duties undertaken or expected of a signatory member nation that receives refugees and asylum-seekers. By signing some of these conventions and protocols, Australian government have a duty to protect these children. There are a number of critics who have noted that Australia receives much fewer asylum-seekers in a global context compared to other developed and developing nations. There are several things that contributes to this trend but notable ones are Australia’s policy of mandatory immigration detention for any individual or group of people arriving by boat. This policy has unnecessarily led to a lasting and sometimes devastating and life changing circumstances both physical and emotional as well as mental health and stability.Labor Government introduce the mandatory detention of asylum seekers twenty-five years ago that still stands today. In fact, the policy has been maintained and improved on by various successive Australian regimes. Any non-citizens arriving in Australian shores without a valid visa must be detained in accordance with The Migration Act 1958 (Cth). The Act refers to such people as unlawful non-citizens. Any sea arrivals also referred to as unauthorized maritime arrivals are automatically detained this include even the children and may only be released from immigration detention if they are granted a visa or moved into community detention or are moved from Australia territory. Current legislation requires that any new boat arrivals must be taken when practicable to processing centers unless the Immigration Minister determines otherwise. This goes against International human rights law that sets out basic standard requirements which must be met if there are no acceptable alternatives to detention. The Convention on the Rights of the Child states clearly that the detention of a child must only be a measure of last resort and that it should not be arbitrary. It continues to say that it must be necessary and reasonable in all the circumstances of the case, and a proportionate means of achieving a legitimate aim. Immigration department records indicates that there are 1,200 asylum-seekers and refugees on Nauru Islands and of these, 749 refugees live outside of the centre. A place not fit for inhabitation due to phosphate strip mining. Australia’s policy of mandatory detention is inconsistent with the country’s obligations under the Convention on the Rights of the Child. There have been repeated calls by mental health professionals for certain children if not all be removed from the detention environment. In the case of FKAG v Australia, the AHRC found that a decision to detain must take into account the mental health condition of those detained. Clinical psychiatrist G. Bradshaw when submitting to AHRC suggested that long detention of children has been associated to a high risk of serious mental harm as well as long-term negative effects on children’s physical development, as well as psychological and emotional health. He noted that such impacts are a result of multiple stressors of detention on children, including exposure to behavioral and psychological distress, exposure to violence as well as dislocation from protective social groups, witnessing self-harm and separation from parents. These stressors will combine with a refugee child’s earlier exposure to conflict to bring risks of PDST. It is widely reported in the media that in 2016 a young refugee from Iran set himself on fire in Nauru Island and later succumbed to injuries in hospital. It is also reported that in May 2016, a young Somali refugee set herself on fire resulting in serious burns to 70% of her body. Amnesty International researchers found that serious incidents of self-harm and attempted suicides were commonplace amongst the refugee and asylum-seeker. They reported that many refugees and asylum-seekers had feelings of anguish, acts of self-harm, and attempts to end their lives. This in many ways is inhuman and degrading and amounts to both neglect and unfair treatment contrary to Article 7 of the ICCPR. Australian immigration detention centers have been criticized by the United Nations High Commissioner for Refugees. In their 2013 report, the Commission noted that there was limited running water, poor sanitation and no schooling. Children had been deprived of the right to enjoy the highest attainable standard of physical and mental health as well as right to education. Article 28 of United Nation Convention on Rights of Children says that State Parties recognize the right of children to education and that school discipline must be in a manner consistent with the child’s human dignity. And Article 29 of the Convention focuses on the aims of education and says that governments agree that the education of the child shall be directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential, the development of respect for human rights and fundamental freedoms and for the principles enshrined in the Charter of the United Nations. In 2014 inquiry, AHRC noted that the failure of the government to provide education to school aged children on Christmas Island between July 2013 and July 2014 is a breach of the right to education. Amnesty International in 2014 disclosed that majority of refugee and asylum-seeker children on Nauru Island were not going to school reason being that they feared being bullied and harassed by teachers and local student. Amnesty International documented several cases of physical and verbal abuse of refugee children at school by both teachers and students. Signatory governments are to ensure that children seeking refugee status are have appropriate protection and humanitarian assistance. Children in detention should be treated with humanity and respect and that they have a right to remain with their parents as well as to have their families protected from arbitrary or unlawful interference. The article continues to state that children should be protected from all forms of abuse while in care of parents or legal guardians or any other person that has the care of the children. Reports of assaults and sexual assault as well as self-harm in some of the detention centers is a breach of the right to be protected from all forms of physical or mental violence found in Article 19(1). Children and young people more often do not have a choice when it comes to choosing between safety and staying to face conflicts. The principle of non-refoulement stipulates that a signatory country cannot transfer anyone to a place where they are a real risk of serious human rights violations. These can include violations such as persecution, torture and other cruel inhuman or degrading treatment. Non- return obligations do require Australian authorities to conduct a fair case-by-case assessment. They ought to determine whether or not the person would be at such a risk if send to another country. Apart from despicable human rights violations and abuses detailed in Amnesty International report in 2016, most refugees and asylum seekers have also been subjected to a whole lot of constant and daily humiliations. These humiliations have cumulatively served to dehumanize them and violated their human dignity. Asylum-seekers and refugees in the report recounted how refugee processing system on makes them feel like they are criminals. Apart from highly armed guards who are mostly former service and military personnel. Australian government aim in detaining asylum seekers in isolated centers that are not fit for human habitation is meant to prevent people from attempting to take boat voyage to Australia. But people are forced to flee away from conflicts, persecution, and other inhumane treatment. Children and young people affected by Australian detention policy has not been big but the impact of long detention of child in unfriendly environment has been grievous. The Australian law and migration policies has failed to consider the best interests of children and have favored collateral damage to children as byproduct of security measures to safeguard Australia integrity. Alternative and less harmful means of achieving both political and security objectives and at the same time respecting its international obligations have not been exhausted. Measures undertaken so far to mitigate the grievous mental, psychological health and developmental effects on children in detention is not enough to bring Australia into the folds of compliant nations. It is still a long walk to freedom for young people and their families in detention.Citation.Alliance of Health Professionals concerned about the Health of Asylum Seekers and their Children, Submission to the Human Rights and Equal Opportunity Commission; May 2002.Human Rights and Equal Opportunity Commission. A last resort? National Inquiry into Children in Immigration Detention. Sydney: Human Rights and Equal Opportunity Commission; hery A, and Silverman SJ: Immigration detention: the migration of a policy and its human impact. Routledge, 2015.Newman L, Steel Z. The child asylum seeker: psychological and developmental impact of immigration detention. Child Adolesc Psychiatr Clin N Am 2008; 17:665–683. Helen Davidson and Ben Doherty, “Iranian Asylum Seeker Severely Burnt after Setting Himself on Fire on Nauru,” The Guardian, 27 April 2016, Select Committee. Taking Responsibility: Conditions and Circumstances at Australia's Regional Processing Centre in Nauru, 31 July 2015, paras. 1.18-1.19. UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, (26 January 2007), , para. 35. See also id. Paras. -43.United Nation Human Rights Commision. . org/syrianrefugees/country.php?id=107. ................
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