Migration, Mental Health and Human Rights

A Continuing Legal Education Symposium held during the 28th International Congress on

Law & Mental Health Thursday, Oct. 2, 2003

The Sofitel Wentworth Sydney 61 Phillip Street, Sydney, NSW

Sydney Room – 3rd Floor

Migration, Mental Health and Human Rights Convened by the Faculty of Law, University of Sydney, and International Academy of Law and Mental Health

Thurs. Oct. 2, 2003 (8:30–17:30) Sydney Room (3rd Floor)

Registration 8:00–8:30

Migration and Human Rights 8:30–10:00

Chair: Sev Ozdowski, Human Rights Commissioner, HREOC

KEYNOTE ADDRESS – “Policy on asylum seekers: a threat to public mental health” Derrick Silove, School of Psychiatry, University of New South Wales

Immigration mindsets or national psychoses? – How our thinking has shaped our migration law Mary Crock, Faculty of Law, University of Sydney

Human Rights and ‘Complementary’ protection: The need to broaden our thinking about refugee law and policy Jane McAdam, Lecturer in Law, Lincoln College, Oxford University

Break 10:00–10:30

The Migrating Mind 10:00–12:30 Chair: Aamer Sultan, Iraqi Doctor and former

detainee

Closing the National Mind: The SIEV X tragedy and Australians’ thinking about Boat People Tony Kevin, Visiting Fellow, Research School of Pacific and Asian Studies, Australian National University, Canberra

Mental States: Negotiating the Health Rules in the Migration Process Jennifer Burn, Faculty of Law, University of Technology, Sydney

Believable Tales: Credibility and The Burden Of Proof In Refugee Status Determinations Susan Kneebone, Faculty of Law, Monash University

To Have and to Hold: The importance of Permanence in the (meaningful) Protection of Refugees Savitri Taylor, Faculty of Law and Management,LaTrobe University

Being There: The importance of social support in restoring and maintaining the mental health of asylum seekers – The Story of the Tiger 11 Soccer Team Camilla Cowley, Member of Catholic Justice and Peace Commission - Brisbane

Lunch 12:30–13:30

Immigration, Detention and Mental Health 13:30–15:30 Chair: Senator Andrew Bartlett, Leader,

Australian Democrats Living in Limbo: A Personal Account of the Psycho-social effects of Australia’s detention and refugee policies Maqsood Alshams, Asylum seeker

Australia’s Human Rights Obligations Relating to the Mental Health of Refugee Children in Detention Terry C. Hutchinson and Fiona Martin, Faculty of Law, Queensland University of Technology

Forced Medical Treatment of Asylum Seekers on Hunger Strike in Detention Mary A Kenny, School of Law, Murdoch University; Derrick Silove, School of Psychiatry, University of New South Wales

Views from the other side: ACM programs within Australia’s Immigration Detention Facilities Janette Lippman, Health Worker, Villawood Detention Centre, Sydney

The Pacific Solution Kate Durham, Founder of Spare Rooms for Refugees.com

Break 15:30–16:00

Torture, Terror and the Migration Process 16:00–17:30 Chair: Lachlan Murdoch, Deputy Director,

Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS)

KEYNOTE ADDRESS – “Thinking about migration in a traumatised world: The impact of 9/11 on Canadian law and discourse on refugees and border control François Crépeau, Faculty of Law, Université de Montréal

The aggressive ‘Terroristic’ Religious Fundamentalists: Psychological analysis Imat Amidjaya, H. Douglas Singer Mental Health Centre, Rockford, IL, U.S.A.

Torturing Terrorists – Intersections with humanitarian law Ben Saul, DPhil Candidate, Oxford University

Migration, Mental Health & Human Rights

Abstracts

Migration and Human Rights

Policy on asylum seekers: a threat to public mental health. Derrick Silove, School of Psychiatry, University of New South Wales

Historically, it is unusual for the mental health consequences of state oppression and discrimination to be documented contemporaneously with the implementation of such policies. The asylum debacle in Australia differs in that mental health concerns about the detention and the treatment of asylum seekers in the community have been voiced early and repeatedly throughout the implementation period. In spite of efforts to prevent scrutiny, data have been collected that can be compared with research undertaken amongst refugees in a variety of settings worldwide. The inescapable conclusions are that detained asylum seekers report the same psychosocial risk factors and types of mental disturbances as refugees in other settings and that the experience of detention exacerbates these problems. Postmigration deprivations and threats of repatratiation prevent asylum seekers in the community from adapting to their new circumstances. Promotion of psychosocial well-being and reduction of social risk factors that generate disability form the cornerstones of government mental health policy. It is paradoxical, therefore, that contemporary asylum policies fundamentally contradict these principles.

Immigration mindsets or national psychoses? – How our thinking has shaped our migration law Mary Crock, Faculty of Law, University of Sydney

This paper analyses the laws and policies governing immigration and refugees in Australia to determine the extent to which these reflect particular charactisations of problems or events. It explores a variety of perspectives or ‘frames of reference’ that can be taken or used to describe and deal with the matters in question. The author examines the extent to which ‘frames of reference’ operate to include or exclude issues such as human suffering, practical outcomes and fiscal cost. The objective is to identify the mindsets or understandings that appear to underpin current laws and policies. To the extent that these appear to have majoritarian support in the Australian community, the author reflects on how current practices might reflect shared perceptions or frames of reference. The paper argues that constriction of the community’s vision and understanding in the areas of immigration and refugees has wider ramifications which are not being articulated or discussed to the extent that they should be.

Alternative Asylum Mechanisms: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Jane McAdam, Lecturer in Law, Lincoln College, Oxford University

Over the past decade, a growing number of asylum seekers refused refugee status under article 1A(2) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) have resorted to the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CAT) for protection. By bringing an individual complaint to the Committee against Torture (Committee) under article 22 of the CAT, successful claimants have been recognized under article 3 as requiring protection from refoulement to ‘another State where there are substantial grounds for believing that [they] would be in danger of being subjected to torture’. This paper assesses the CAT as a complementary form of protection for asylum seekers. It reviews the scope and content of protection afforded by article 3 of the CAT by examining the procedures by which an individual can make a claim under article 3, the nature of claims which may be brought to the Committee for consideration, and the legal and practical effects of a finding by the Committee of a violation. In this analysis, the elements of the CAT’s definition of ‘torture’, the lack of enforceability of the Committee’s views, the uncertainty of the legal status and concomitant rights of a beneficiary of article 3 protection, and the various procedural requirements which the CAT imposes on an application to the Committee, are presented as limitations on the CAT’s effectiveness as an alternative protection mechanism. At the same time, however, it is argued that the extension of non-refoulement through the CAT and other human rights treaties ought to be welcomed and developed in the spirit of the Refugee Convention to ensure that it is given real meaning, beyond admission alone.

The Migrating Mind Closing the National Mind: The SIEV X tragedy and Australians’ thinking about Boat People Tony Kevin, Visiting Fellow, Research School of Pacific and Asian Studies, Australian National University, Canberra

This paper examines in relation to the sabotage and sinking of SIEV X three propositions: 1. That in modern bureaucratic state systems, deeply criminal acts can be carried out without the necessity of evil

intentions by inviduals working in those systems (ref. Hannah Arendt, Zygmunt Bauman, Susan Neiman) 2. How a Big Lie is protected: Australian society, even in its leading media and parliamentary elites, cannot

confront the truth of Australian official complicity in actions leading to the deaths of 353 people. As a result, more and more people become implicated in government cover-up and denial strategies – just by doing their job.

Migration, Mental Health & Human Rights

3. Review of avoidance strategies in this case: initial system design for plausible deniability, ways of withholding or misrepresenting evidence, outraged denial, appeals to “put it behind us”, ways to discredit and intimidate whistleblowers in order to deter others.

Mental States: Negotiating the Health Rules in the Migration Process Jennifer Burn, University of Technology, Sydney

Health testing in Australian migration law is complex, simultaneously incorporating a codified legislative system with the exercise of discretion by specified decision-makers. All people seeking Australian visas are subject to health testing. Health testing has a multiple aims. It is designed to protect the Australian community from diseases that could represent a threat to public health, to protect the taxpayer from undue expenditure and, in an environment where resources are in short supply either because of cost or demand, to give preference to Australians over non-citizens. Health testing applies whether a person is in a refugee camp in Kenya, in the Australian community seeking asylum or a husband, wife or child of an Australian. This paper reviews the statutory scheme and identifies current issues in the application of the health test to mental health conditions.

Believable Tales: Credibility and The Burden Of Proof In Refugee Status Determinations Susan Kneebone, Faculty of Law, Monash University, Melbourne

This paper examines the difficult task which an asylum seeker has to persuade a decision-maker that he / she is a genuine refugee in the light of the high standard of proof which is applied to a ‘well founded-fear of persecution’ test in refugee status determinations. It demonstrates how a large proportion of cases fail on the basis of the applicant’s credibility and comments upon the effectiveness of the procedures for extracting the applicant’s narrative.

To Have and to Hold: The importance of Permanence in the (meaningful) Protection of Refugees Savitri Taylor, Faculty of Law and Business, LaTrobe University

Many refugees are allowed to enter or remain in Australia pursuant to temporary rather than permanent visas. Some of these refugees will never be eligible for permanent resident status in Australia. Instead, they face the prospect of having their refugee status periodically reviewed and hence have hanging over them the permanent threat of possible repatriation. Temporary visa holders are also given lesser economic and social entitlements than permanent visa holders – the purpose being to impede their full integration into Australian society. It is argued in this paper that, in many cases, the grant to a refugee of temporary protection of this nature will not amount to ‘protection’ in any meaningful sense. It is further argued that the psychosocial harm which temporary status (and accompanying disadvantages) inflicts may in some cases be so great as to amount to ‘cruel, inhuman or degrading treatment’ within the meaning of article 7 of the International Covenant of Civil and Political Rights.

Being There: The importance of social support in restoring and maintaining the mental health of asylum seekers – The Story of the Tiger 11 Soccer Team Camilla Cowley, Member of Catholic Justice and Peace Commission - Brisbane

The Tiger 11 Refugee Soccer Club is ‘a team without borders’ in the club members mission statement which guides the continuing building of relationships within this unique environment. Membership is open to all refugees whatever their origin or visa status and it has brought together Hazara Afghans, Tajik Afghans, Pashtun Afghans, Christian and Muslim Sudanese, Eritrean , Sierra Leone, Iranian and Iraqi young refugees. The initial purpose of the club was to build a family, a community for the unaccompanied young Hazara refugees, who were suffering under their temporary status, the absence of family support, racial abuse following September 11 and lack of any real sense of belonging or acceptance in Brisbane. The restlessness and depression of these young refugees has found relief in the supportive family environment built around the soccer club by a team of volunteers and support from within the broader community. They have in a way, become a symbol of TPV refugees here in Australia and succeeded in humanising the issue of unauthorised arrivals in their reaching out to the wider community, as a group of vulnerable your refugees seeking only to belong and participate in this country they would love to call home. They have been able to reach across political, religious and ethnic boundaries, gathered support from within Local and State government bodies, faith communities across the Christian and broader spectrum and have achieved great things despite their precarious situation. They are an inspiration to all who travel with them and provide a blueprint for successful settlement and the importance of a community of belonging and acceptance in empowering the triumph of the human spirit against great odds.

Mandatory Detention Australia’s Human Rights Obligations Relating to the Mental Health of Refugee Children in Detention Terry C. Hutchinson and Fiona Martin, Faculty of Law, Queensland University of Technology

In its submission to the Human Rights and Equal Opportunity Commission Inquiry into Children in Immigration Detention the Department of Immigration & Multicultural & Indigenous Affairs reported that as at 12 April 2002 there were 184 children in immigration detention centres in Australia. of these 163 were accompanied, 114 were male and 70 were female. The unaccompanied children were predominantly male and aged 16-17. In a report

Migration, Mental Health & Human Rights

prepared in July 2002, it was concluded that the majority of children in detention centres in Australia displayed ‘high level emotional distress not accounted for by pre-migration trauma’. This paper seeks to analyse recent findings of mental illness of children in detention centres in the context of Australia’s human rights obligations under the UN Convention on the Rights of the Child. This paper discusses the principles under the Convention, and it examines to what extent Australia is adhering to its human rights obligations in regard to these children. It questions whether further harm is being inflicted on the children, and whether this situation is in the long-term interest of the Australian people.

Forced Medical Treatment of Asylum Seekers on Hunger Strike in Detention Mary A Kenny, School of Law, Murdoch University; Derrick Silove, School of Psychiatry, University of New South Wales

This presentation considers hunger strikes as a form of protest by asylum seekers in Australia and examines the legality of force-feeding and other forced medical treatment of detainees against their will. The presentation will look at raises a number of questions about the lawfulness of the authority to force-feed under delegated migration legislation, not statute, for which no clear common law authority exists and which may be in breach of international law. The presentation will also consider the ethical position of medical practitioners when faced with such individuals. How do you balance the individual’s rights, with the medical practitioners’s ethical responsibility to keep people alive?

Views from the other side: ACM programs within Australia’s Immigration Detention Facilities Janette Lippman, Health Worker, Villawood Detention Centre, Sydney

ABSTRACT FORTHCOMING

The Pacific Solution Kate Durham, Founder of Spare Rooms for Refugees.com

This presentation will take the audience through Ms Durham’s first-hand experience of The Pacific Solution gained through correspondence with asylum seekers detained on Nauru. The speaker will describe her visit to the detention facilities in 2002 which was the subject of a BBC documentary.

The Psychology of Terror Thinking about migration in a traumatised world: The impact of 9/11 on Canadian law and discourse on refugees and border control François Crépeau, Faculty of Law, Université de Montréal

Canada has adopted a new Immigration and Refugee Protection Act in 2002 and has also adopted several controversial anti-terrorism legislations following the 9/11 events. Canada has also increased its cooperation with the American Administration regarding border controls, developing a "Smart Border Action Plan". In December 2002, Canada and the US signed a new Safe Third Country Agreement, which parallels the European Dublin Convention and its coming into force is creating huge difficulties at the border, as it coincides with the American policy of registering all foreigners born in some countries. The paper will explore whether there is, from a legal point of view, a reconceptualization of immigration controls and refugee protection in Canada around security issues.

The aggressive ‘Terroristic’ Religious Fundamentalists: Psychological analysis Imat Amidjaya, H. Douglas Singer Mental Health Centre, Rockford, IL, U.S.A.

The paper delineates the inter-relationships among fundamentalism, religion, militancy, and ‘terroristic’ personality. Aspects of mental health, law, culture, politics, psychology, and sociology are deeply involved and inter-mingled. However, the paper focuses mainly on the psychology of the religious fundamentalist who is both militant and ‘terroristic': why does he believe in terror, how does he come to be pervasively hostile and brutal, what creates his ‘under siege mentality', and a host of other questions. Although the writer describes and analyzes militant Islamic fundamentalists, the description and theoretical assertions apply to most militants or terrorists using any religion or religious ideology. Individuals who are nascent militant fundamentalists, or possess the psychological characteristics that predispose them to being militant, become terrorists only because they are recruited, trained, and sometimes exploited by a radical political group. This radical group capitalizes on, and exploits, the religious sentiments and loyalty of traditionally religious people. The presentation will describe the psychological aspects of the emergence or formation of such a radical climate and movements, which are undoubtedly the outcomes of political and cultural factors. It is obvious that from the standpoint of clashing or conflicting political interests, the words ‘terrorism’ or ‘terrorists’ can be immediately controversial, because for every religious fundamentalist terrorist there may be millions of sympathizers who would quickly point out that these so-called terrorists are holy warriors who are fighting against the enemies of God. This fact does not invalidate a thorough study of the motivations, thoughts, feelings, and other aspects of the persons who conduct the acts of terror or the acts of holy war. It will be made clear that a fundamentalist is not necessarily religious (as, for example, the distinction between a fundamentalist constitutionalist vs. a liberal constitutionalist). A religious fundamentalist is not necessarily militant; and, a militant religious fundamentalist is not necessarily a terrorist. The militant fundamentalist believes in resorting to violence,

Migration, Mental Health & Human Rights

while the terrorist fundamentalist deliberates and plans to launch a campaign of terror. However, it will be made clear that a militant religious fundamentalist can be reasonably expected to be a nascent terrorist or a good candidate for recruitment and training for acts of terrorism. The presentation deals with the practical questions such as: Why did young educated Muslim men, religiously devoted, bomb embassies and hijack commercial airplanes? Why were these young Muslim men personally committed to what they call the destruction and death of America? What motivated these Muslim men to assassinate their own Muslim government officials and plot to destroy their own governments in Saudi Arabia, Egypt, etc? Why did they kill the Egyptian President Anwar Sadat? What moved thousands of Pakistanis to go to Afghanistan-Pakistan borders to do jihad against the Americans? Why do some governments in the Arab world and wealthy Arab families spend millions of dollars a year to train young Muslim men in anti-Western and anti-American terrorist training camps in Iraq, Libya, Syria, Iran, Sudan, and Afghanistan? Are the motives or the underlying psychology behind all of these aggressive or violent acts the same as those behind the burning of the thousands of innocent people at the stake during the Spanish Inquisition? Did the perpetrators of the September 11, 2001 atrocities and destruction have the same motives and the same religious feelings as militant religious fanatics anywhere, regardless of religion? Do extremist right wing groups anywhere in the world harbor a highly emotionally charged view that their lives and survival are directly and physically threatened by modern society and governments, or that the world is so evil, that their sole mission is to destroy society and governments? How can one describe the personality of a terrorist?

Torturing Terrorists – Intersections with humanitarian law Ben Saul, DPhil Candidate, Oxford University

The prohibition against torture ranks among the most fundamental norms of international human rights law and torture is also an international crime. However, there are periodic calls for terrorists to be tortured during interrogation, to obtain information considered vital to protect public safety. This paper argues that before torturing a suspect, it is impossible to know with any acceptable level of legal certainty that the suspect actually possesses the information or indeed is involved in terrorism. The very best judicial systems wrongly convict people even after final appeals have been exhausted. The margin for error radically multiplies in the pre-trial investigative phase where any available evidence is incomplete and untested, and urgent time pressures on the authorities encourage further mistakes. The individual and community consequences of forcibly violating the body or the mind are profound and signal a return to the blunt techniques of medieval justice. Torture is also ineffective, potentially leading to chronic disinformation and false confessions.

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