Theory, Practice and Policy
Edited by Devyani Prabhat
Edited by Andrew Geddes, Marcia Vera Espinoza, Leila Hadj Abdou and Leiza Brumat
Edited by Katharyne Mitchell, Reece Jones and Jennifer L. Fluri
Katharyne Mitchell, Reece Jones and Jennifer L. Fluri
Edited by Mary Crock and Lenni B. Benson
The principal domestic mechanism through which Australia gives effect to its protection obligations under the UN Convention Relating to the Status of Refugees, and under other human rights treaties, is the protection visa. This chapter describes the procedural treatment of asylum-seeking children in Australia and considers whether it is compliant with Australia’s obligations under key provisions of the Convention on the Rights of the Child. This chapter adds to the existing literature by examining the treatment of all asylum-seeking children and by focusing on legislative and policy changes in 2014 and 2015 affecting procedural rights at the primary and merits review stage of the protection visa application process.
Mary Crock and Lenni B. Benson
In this introductory chapter we identify themes that will be carried throughout the book. We begin in section 2 with a discussion of the human rights challenges presented by children on the move, posing questions that our contributors will address as they build on the themes we identify. This is followed by an examination of obstacles that have been created to recognizing child migrants as rights bearers. After setting out in section 4 a brief outline of the book’s structure, the chapter concludes with some comments on global initiatives that have been made to address the challenges associated with mass migration, on the one hand, and of forced movement of refugees, on the other. We will argue that the uncertainty and risks facing the world in the new millennium certainly constitute problems – but they also offer opportunities for positive change. Four foundational principles inform our discussion of how states should respond to children on the move. The first is that childhood is unique in that the status of being a child is transitory and (absent disabilities) the capacities of children evolve as children age. Second, it follows that children require special protection and assistance, most particularly in their younger and adolescent years, if they are to develop and thrive. The third point is that procedural accommodations should be made for children in recognition of the physical and cognitive stages of their development. The fourth and final principle both flows from and unites the three that precede it. It is that the treatment of child migrants matters because it has long-term consequences – both for the children themselves and for their host communities.
Kathryn E. van Doore
Children are increasingly on the move in, through and out of South East Asia for independent voluntary migration, or due to forced migration, or trafficking. This chapter examines how the best interests principle embodied in the Convention on the Rights of the Child intersects with the issue of child migration and trafficking in the Association of South East Asian Nations (ASEAN) region. It asserts that South East Asia is in a unique position to adopt a child rights-based approach to child trafficking and migration policy regionally with the best interests of the child as the paramount consideration.
Timnah Baker and Kate Bones
International and domestic jurisprudence and guidance on the definition of ‘refugee’ have largely developed around the adult applicant. Decision-makers and courts have often struggled to engage with the different experiences and vulnerabilities of children seeking asylum. This chapter examines the application of the refugee definition to children in the law of Australia and the United States, providing comparative case studies on two aspects of the definition that present particular issues in the jurisdictions: the level of harm required to amount to persecution, and ‘membership of a particular social group’. The chapter concludes by drawing on the two case studies to highlight the possibilities of transnational and cross-jurisdictional dialogue in the field of refugee law.
Mary Crock and Phoebe Yule
The central argument in this chapter is that the Convention Relating to the Status of Refugees (‘Refugee Convention’) can and should be read in a manner that considers the experiences and particular vulnerabilities of children. We begin in section 2 with a (necessarily brief) examination of the Convention definition of the term ‘refugee’, exploring how the various elements can and should be read to accommodate the protection needs of children. Section 3 looks at the Convention’s exclusionary provisions and how these can affect children who have been embroiled in violence and conflict. We conclude with some reflections on the substantive rights that should flow in acknowledging the application of the Refugee Convention to children on the move as forced migrants.