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Migration, Mental Health and Human Rights a Continuing Legal Education Symposium Held During the 28Th International Congress on Law & Mental Health Thursday, Oct

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Migration, Mental Health and Human Rights a Continuing Legal Education Symposium Held During the 28Th International Congress on Law & Mental Health Thursday, Oct 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 Lunch 12:30–13:30 Migration and Human Rights 8:30–10:00 Immigration, Detention and Mental Chair: Sev Ozdowski, Human Rights Health 13:30–15:30 Commissioner, HREOC Chair: Senator Andrew Bartlett, Leader, KEYNOTE ADDRESS – “Policy on asylum seekers: Australian Democrats a threat to public mental health” Living in Limbo: A Personal Account of the Derrick Silove, School of Psychiatry, University of Psycho-social effects of Australia’s detention New South Wales and refugee policies Maqsood Alshams, Asylum seeker Immigration mindsets or national psychoses? – How our thinking has shaped our migration law Australia’s Human Rights Obligations Relating Mary Crock, Faculty of Law, University of Sydney to the Mental Health of Refugee Children in Detention Human Rights and ‘Complementary’ Terry C. Hutchinson and Fiona Martin, Faculty protection: The need to broaden our thinking of Law, Queensland University of Technology about refugee law and policy Jane McAdam, Lecturer in Law, Lincoln College, Forced Medical Treatment of Asylum Seekers Oxford University on Hunger Strike in Detention Mary A Kenny, School of Law, Murdoch Break 10:00–10:30 University; Derrick Silove, School of Psychiatry, University of New South Wales The Migrating Mind 10:00–12:30 Views from the other side: ACM programs Chair: Aamer Sultan, Iraqi Doctor and former within Australia’s Immigration Detention detainee Facilities Closing the National Mind: The SIEV X tragedy Janette Lippman, Health Worker, Villawood and Australians’ thinking about Boat People Detention Centre, Sydney Tony Kevin, Visiting Fellow, Research School of The Pacific Solution Pacific and Asian Studies, Australian National Kate Durham, Founder of Spare Rooms for University, Canberra Refugees.com Mental States: Negotiating the Health Rules in Break 15:30–16:00 the Migration Process Jennifer Burn, Faculty of Law, University of Torture, Terror and the Technology, Sydney Migration Process 16:00–17:30 Believable Tales: Credibility and The Burden Of Proof In Refugee Status Determinations Chair: Lachlan Murdoch, Deputy Director, Susan Kneebone, Faculty of Law, Monash Service for the Treatment and University Rehabilitation of Torture and Trauma Survivors (STARTTS) To Have and to Hold: The importance of Permanence in the (meaningful) Protection of KEYNOTE ADDRESS – “Thinking about migration Refugees in a traumatised world: The impact of 9/11 on Savitri Taylor, Faculty of Law and Management, Canadian law and discourse on refugees and LaTrobe University border control François Crépeau, Faculty of Law, Université de Being There: The importance of social support Montréal in restoring and maintaining the mental health of asylum seekers – The Story of the Tiger 11 The aggressive ‘Terroristic’ Religious Soccer Team Fundamentalists: Psychological analysis Camilla Cowley, Member of Catholic Justice and Imat Amidjaya, H. Douglas Singer Mental Health Peace Commission - Brisbane 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
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