Processing issues — child visas

9.66 During 1996–97 1622 off-shore child visas, 265 on-shore child visas and 297 adoption visas were granted to children by the Minister for Immigration and Multicultural Affairs.^[103] Average processing times for visa applications lodged in Australia was 28 weeks.^[104] Overseas posts showed considerable variation. Taking those posts which had relatively low numbers of child applications, the time differences varied between 8 weeks taken to process 75% of child visa applications in Manchester, 50 weeks to process 75% of the 7 such applications in Beirut or 83 weeks for the same percentage of 18 visa claims in Islamabad. The table below illustrates these variations.

Table 9.1 Time in weeks for grants made in the period 96/97 — 101 Child Visa^[105]

When the posts with high volume child visa applications are examined similar variations in processing times are shown as evidenced by the table below.

Table 9.2 Time in weeks for grants made in the period 96/97 — 101 Child Visa^[106]

9.67 These time differences are significant. All child subclass 101 visa applicants are waiting to join families in Australia. In these circumstances delays of one or two years can mean real family suffering.

9.68 In addition to processing delays, the Inquiry has been struck by the limited mentions of child visa applicants in the various guidelines that DIMA publishes for its staff. This omission is particularly marked with respect to guidelines pertaining to interviews and questioning of non-citizens.^[107]

9.69 The Migration Act 1958 (Cth) gives authorised officers certain investigative powers. For example, non-citizens who have not been immigration cleared can be searched for weapons or documents by an authorised officer of the same sex.^[108] To determine whether a person in immigration detention is an unlawful non-citizen, a removee or a deportee, that person can be required to answer questions put by authorities.^[109] There is a penalty of six months imprisonment for anyone who refuses to answer or who is untruthful.^[110] In contrast to the Crimes Act 1914 (Cth) there are no special provisions for questioning or searching children.^[111] This is an important oversight.

Welfare needs of non-citizen children

9.70 The Minister for Immigration and Multicultural Affairs, or his or her delegate, is the guardian of every non-citizen child who arrives in Australia as a potential resident and who is not accompanied by parents or relatives.^[112] Guardianship of this sort is usually exercised in relation to unaccompanied child refugee applicants and, in the past, for children brought to Australia for adoption.^[113]

9.71 Sometimes non-citizen children who are in Australia are subject to exploitation, abuse or neglect.^[114] Some of these children may be short term entrants, here with their parents on a temporary visa, or they may be unlawful non-citizens, having overstayed their visas and living here with or without family support. Where non-citizen children come to the attention of welfare authorities, it may be necessary to extend or regularise the child’s immigration status as an ancillary measure to provide protection for the child. The Migration Regulations do not currently make provision for these cases.^[115] Indeed, it is often not clear which level of government has primary responsibility for these children.

State government departments of community services argue that such children are outside their mandate, not being permanent residents, but add that consideration on a case by case basis will be given to taking on guardianship if requested to by the Minister for Immigration. Irrespective of whether this formal relationship is established, there is no effective provision for any active support of the minor or monitoring of any care relationship that exists.^[116]

9.72 A protocol should be developed to resolve immigration problems for children whom a community services department or court has determined are in need of care.^[117] In some cases this may mean enabling a child to change or acquire lawful immigration status to allow appropriate supervision of him or her or an alternative family placement.

Intra-family overseas adoptions

9.73 To qualify for an adoption visa under subclass 102, a young person must have been legally adopted overseas by an Australian citizen or permanent resident who had been resident in the child’s home country for more than 12 months at the time of the visa application. The Minister must be satisfied that the residence overseas by the adoptive parent was not contrived to circumvent Australian immigration requirements.^[118]

9.74 A child may also qualify for an adoption visa if an Australian citizen or permanent resident undertakes to adopt the child once he or she arrives in Australia and the proposed adoption has been approved by the relevant authorities in Australia and in the child’s country of residence.^[119] In both instances, the child must be sponsored by an Australian citizen or resident.^[120]

9.75 DIMA and State and Territory community services agencies co-operate in granting approvals for intercountry adoptions. Certain cases reviewed by the Immigration Review Tribunal (IRT) indicate that State and Territory welfare agencies have sometimes not provided evaluations for private, overseas intra-family adoptions.^[121] In certain instances this has resulted in children being denied visas even though the children were apparently genuine adoptions.

9.76 The 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, which the Ministerial Council on Community Services has recently agreed should be ratified,^[122] will provide important safeguards for intercountry adoptions, including intra-family adoptions. Specifically, the Convention includes measures designed to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of or traffic in children. Immediately prior to the Convention coming into force all relevant DIMA staff should be given training in applying its principles to decision making.

Parental rights and child visa applicants

9.77 All visa subclasses have a provision stating that before granting any permanent visa to a child applicant the Minister must be satisfied that granting the visa would not prejudice the rights and interests of any other person who has custody or guardianship of or access to the child.^[123]

9.78 The provision is designed as a double check to ensure that children coming to Australia without their parents, or in the company of only one parent, have permission from all their legal guardians to do so. It is a laudable safeguard against child abductions but it can lead to injustice.^[124] The way the provision is currently drafted, a child may be refused entry to Australia because a person in his or her country of origin has a right of access to the child even though a court in that country has authorised the removal of the child from the jurisdiction to come to Australia.

9.79 The language of the provision does not reflect the language and presumptions in the Family Law Act 1975 (Cth) that give parents responsibilities for children rather than rights in them. The provision should be recast to be consistent with the Family Law Act while requiring appropriate proof of parental, guardian or court consent to the child’s departure for Australia.

Refugee children

9.80 Under the 1951 UN Convention Relating to the Status of Refugees, a person is a refugee if he or she is outside his or her country of origin and has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group.^[125] Approximately half of the world’s refugees are children.^[126] They are refugees because their parents have been the victims of persecution or because they themselves have been subjected to persecution. Australia has few child refugee applications and fewer unaccompanied child refugees because of the visa system and the absence of a land border with any other country.

9.81 Refugees can apply for protection in Australia from overseas or from within Australia. Offshore refugees are those who enter Australia as part of the refugee and special humanitarian migration programs administered by DIMA. People are selected for these programs by Australian immigration officials in overseas posts according to particular visa criteria.^[127] Offshore refugee children who are unaccompanied by parents or relatives enter Australia under the guardianship of the Minister for Immigration and Multicultural Affairs.^[128] Onshore refugees are those who apply for a protection visa while in Australia. These people may have arrived in Australia on a temporary visa or without a visa.^[129]

9.82 Applicants for protection visas are often interviewed personally. Particular efforts should be made to ensure that unaccompanied child protection visa applicants have an independent support person present during any interview.^[130] The Refugee Council of Australia has submitted that some child protection visa applicants have difficulties accessing the public health system.^[131] While this matter is marginal to our terms of reference, the Inquiry agrees that the federal Government should ensure that all children in Australia who are awaiting determination of an application for asylum should have access to free basic medical care.

Children in immigration detention

9.83 All non-citizens in Australia who do not have valid visas are required to be detained.^[132] A considerable number of children are placed in immigration detention each year. Between 1989 and 1993 there were 168 children, including asylum seekers, in immigration detention centres. During that period 32 children were born in detention.^[133] On 23 September 1997 there were 395 people in immigration detention in Australia 28 of whom were children.^[134]

9.84 There are procedures for releasing children from detention on bridging visas pending a final determination of their visa application including applications for residence.^[135] This arrangement as it applies to children arriving in Australia without a visa can allow for the temporary release of children but not their parents. The effect of the legislation is that most children remain in immigration detention with their parents, on occasion for substantial periods.^[136] Children are generally detained at the Immigration Processing and Reception Centre at Port Hedland in Western Australia.

9.85 The Inquiry received limited evidence on these matters although several submissions expressed concern about our failure to include any proposals specific to the detention of refugee children in DRP 3.^[137] We understand their concern about the vulnerability of many of these children. HREOC has undertaken an extensive investigation into the detention of asylum seekers including children. The Inquiry reserves recommendations regarding the detention of children to that investigation.