Australian Migration Law Amendments: What this means for asylum seeker children

The article below was written for the special Children's Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons, the Human Rights Law Centre and UNICEF Australia. 

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Australian Migration Law Amendments: What this means for asylum seeker children

The Australian Government recently passed legislation to amend the Migration Act 1958 (Cth) and the Maritime Powers Act 2013 (Cth) making it even more difficult for asylum seeker children and children born to asylum seeker parents to be processed and settled in Australia.

These changes were introduced on 25 September 2014 in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Despite considerable debate and submissions as to the desirability of the Bill, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 was passed by Parliament on 4 December 2014 and received Assent on 15 December 2014.

(The HRLC made a joint submission to the Senate’s Legal and Constitutional Affairs Legislation Committee outlining the grave human rights risks posed by the laws. A copy of which can be found here: New migration Bill would allow Government to breach international law and sideline the courts say leading human rights organisations And a related opinion piece here: Decency to one group of refugees shouldn’t be contingent on licensing Scott Morrison to brutalise others)

The Act has received significant attention due to the serious implications it has for persons seeking asylum in Australia and Australia’s compliance with its obligations under international law. Importantly, the Act has also received attention in relation to how it will affect the rights of asylum seeker children and children born to asylum seeker parents.

What are the changes?

The key amendments that result from the Act are as follows:

  • Maritime powers: increase in the Executive and non-Executive powers to detain and transfer people at sea and restriction on the ability of courts to review such actions;
  • Protection Visas and other measures: re-introduction of Temporary Protection Visas (TPVs) and introduction of Safe Haven Enterprise Visas (SHEVs). As a result, asylum seekers who arrive in Australia without valid visas are no longer eligible to apply for permanent Protection Visas;
  • Fast track assessment process: introduction of a new review process for the “legacy caseload” which will be reviewed by a new statutory body called the Immigration Assessment Authority, instead of the Refugee Review Tribunal. This will result in the removal, or restriction, of merits review applications;
  • Clarification of Australia’s international obligations: removal of most references to the Convention relating to the Status of Refugees from the Act and the requirement to consider Australia’s non-refoulement obligations;
  • Reclassification of newborn babies of asylum seekers: children born in Australia or in offshore processing centres to asylum seeker parents will retrospectively be given the same legal status as their parents; and
  • Power to cap permanent Protection Visas: the Minister for Immigration and Border Protection will be able to put a statutory limit on the number of permanent Protection Visas which can be granted.

What does this mean for children?

The amendments

The amendments affecting children are set out in Schedule 6 to the Act. Effectively this schedule provides that children born to asylum seeker parents, either in Australia or in a regional processing country (which currently means either Nauru or Papua New Guinea), will have the same legal status as their parents. This means they will be considered as either transitory persons or unauthorised maritime arrivals for the purposes of the Act and as such they can be detained, processed offshore and denied permanent protection in Australia. Prior to these amendments, it was not clear how children born to asylum seekers in Australia or in a regional processing country would be detained and processed.

In particular, this schedule expands the previous definition of a transitory person in the Act to include: the child of a transitory person if the child was born in a regional processing country to which the parent was taken and the child was not an Australian citizen at the time of birth; and the child of a transitory person if the child was born in the migration zone (meaning the land and sea of Australia, and certain other areas taken to form the migration zone under the Act) and the child was not an Australian citizen at the time of birth.

The definition of unauthorised maritime arrival in the Act has also been expanded to include: a person who was born in the migration zone if the parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival and the person is not an Australian citizen at the time of birth. A person will also be considered an unauthorised maritime arrival if the person is born in a regional processing country and the parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival and the person is not an Australian citizen at the time of his or her birth.

Amendments to section 198 of the Act mean that where an unlawful non-citizen has been brought to Australia for a temporary purpose and gives birth to a child while in Australia, the child becomes a transitory person and “an officer must remove the non-citizen and the child as soon as reasonably practicable after the non-citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).”

The Act further provides that the amendments made to the Act will be applied retrospectively in certain cases.

What the Government says

In the Explanatory Memorandum to the Bill, the Government stated that the amendments are intended to clarify the position of children and ensure consistency within the family unit so that families are not separated by the operation of the Act. This is said to be in support of Article 3 of the Convention on the Rights of the Child (Convention) as it is treating the best interests of the child as a primary consideration, in addition to discouraging unauthorised arrivals from taking potentially life threatening avenues to achieve resettlement for their families in Australia.

The Government also pointed to its obligations under the International Covenant on Civil and Political Rights (ICCPR), in particular Article 17 which confirms the right that “no one shall be subjected to arbitrary or unlawful interference with his…family…” and Article 23 which provides that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. In relation to these obligations the Government stated in the Explanatory Memorandum:

“consistent with current policy and practice, where possible, family units will not be separated by Australia and consideration will be given to family unity and to the best interests of the child on a case-by-case basis to ensure that the obligations in Articles 17 and 23 of the Covenant on Civil and Political Rights (ICCPR) and Article 3 of the [Convention] are met.”

In addition, the Government indicated that the amendments comply with Article 24 of the ICCPR, which affords every child the right to acquire a nationality, as a stateless child’s status as an unauthorised maritime arrival does not alter that child’s eligibility for citizenship under Australian laws or the laws of the current regional processing countries.

Opposing views

Critics have cast doubt over the efficacy of the amendments and whether they do in fact uphold the rights of asylum seeker children. A major concern, amongst others, is that the rights under the ICCPR and CRC are not afforded to the children subject to these laws. For example, despite keeping the family unit together, it is unlikely that sending a child to a regional processing country for indefinite detention is actually in the best interests of that child pursuant to Article 3 of the Convention. Furthermore, it is debatable whether the conditions at detention centres in regional processing countries do indeed provide good quality health care, clean water, nutritious food and a clean environment for children to stay healthy as provided for in Article 24 of the Convention.

Over 200 individuals and organisations made submissions to the Senate Legal and Constitutional Affairs Committee Inquiry on the Bill. Notably, the Australian Red Cross submitted that the Government is in breach of its obligations under Article 22 of the CRC which provides that a State Party shall take appropriate measures to ensure that a child who is seeking refugee status receives appropriate protection and humanitarian assistance. In addition, the Australian Red Cross submitted that it is well established that children and young people are particularly vulnerable to the detention experience, and by its very nature, detention is a traumatic experience which has a significant impact on the full physical, emotional and cognitive development of children and young people, which can extend long into their post detention futures.

The Refugee & Immigration Legal Centre Inc (RILC) also made a submission to the Senate Inquiry setting out their concern that the amendments expose newborn children and young children to a risk of mistreatment and danger to their well-being due to the poor conditions of regional processing countries, a risk of refoulement to their country of origin, or an uncertain future on a TPV. In addition, the RILC submitted that Australia owes obligations under the CRC to children within its territory, and these obligations extend to their substantive rights relating to their well-being and development, as well as a prohibition on refoulement and a prohibition on being subjected to torture or to deprivation of life.

The amendments were also criticised by politicians from the Labor, Greens and Palmer United parties, as well as several independent MPs. However, at the end of 2014 the Coalition Government announced that an agreement had been made with crossbench Senators in exchange for their support for the Bill. As part of this agreement, the Government agreed to lift Australia’s refugee intake by 7,500 places over four years, give asylum seekers on bridging visas the right to work, and remove all children from detention on Christmas Island.

Example of baby Ferouz

The potential effects of these amendments can be illustrated by the experiences of baby Ferouz. Ferouz is a baby boy who was born in November 2013, before the amendments were passed, to parents who arrived to Australia by boat as unauthorised maritime arrivals and who were then sent to Nauru. Shortly after going to Nauru, Ferouz’s mother was flown to Brisbane where Ferouz was born. Ferouz’s father applied for a protection visa for him but this application was deemed invalid on the basis that Ferouz was an unauthorised maritime arrival who was in Australia as an unlawful non-citizen. Ferouz and his family applied for judicial review and on 15 October 2014 the Federal Circuit Court of Australia found that Ferouz was an unauthorised maritime arrival and so, pursuant to s 46A of the Act, he was not able to apply for a protection visa. This decision was appealed to the Full Federal Court however the appeal was not allowed.

Fortunately for Ferouz and his family, the Government agreed as part of its agreement with crossbench Senators that as a special one-off arrangement 31 babies (and their families) born to unauthorised maritime arrivals who were transferred from Nauru to Australia before 4 December 2014 would be allowed to stay in Australia and have their refugee claims assessed. However, this case highlights the complexities and the uncertainties already faced by those born to asylum seeker parents which will arguably be exacerbated by these amendments.

Conclusion

The amendments made by the Act address a range of complex issues and are likely to have significant implications for the rights of persons seeking asylum in Australia and, most importantly for the purposes of this article, asylum seeker children. Whilst there is still much uncertainty as to the effects of these amendments, there are real concerns that Australia is compromising its international obligations which will in turn have serious ramifications for the protection of the rights of children asylum seekers and children born to asylum seeker parents.

Olivia Goudal is a Law Graduate at King & Wood Mallesons.