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Sarah Stephen: Children Punished By Australian Law

Children Punished By Australian Law

Sarah Stephen
From Green Left Weekly, October 27, 2004

* Born in Fiji, Sereana Naikelekele has lived in Australia for almost 16 years. She is married to Maika Koroitamana and has five Australian-born children. Her eldest child, 12-year-old Sally, is a citizen. Her youngest, three-year-old Glen, is also a citizen. Jope, who turned 10 on August 26, is due to receive a certificate confirming his citizenship. *

In July 2002, when Sereana was working to support her family, but without a permit, she was dobbed in to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and taken to Villawood detention centre. Two months later, her three youngest children, Glen, who was then only one and still being breast-fed, two-year-old Lomani and four-year-old Mereani, were brought to join her, because their father had been struggling to look after all five of the children on his own.

For the past two years, Sereana has been fighting to get out of detention and for her right to stay in Australia.

On October 20, she wiped away tears to argue her case at a Migration Review Tribunal (MRT) hearing to consider an application for a bridging visa. In a room packed with supporters, and with her five children around her, Sereana asked: "How can it be acceptable to place Australian citizens in detention? Do they not have the same rights as other Australian citizens? My kids need to get out of Villawood. I am a good and loving mother, and it is my right to be with them."

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The MRT member presiding over the case, Amanda MacDonald, found that Sereana did not meet the criteria necessary to be granted a bridging visa, and said that the only avenue left to her was to appeal to the immigration minister to intervene.

Sereana and her lawyer Michaela Byers are trying every avenue to win the family's right to stay in Australia. A case currently before the Federal Court is aimed at proving that Australia's laws make her two youngest daughters, Lomani and Mereani, stateless. This is because neither Australia nor Fiji will grant them citizenship.

Fiji's constitution recognises citizenship by birth, but doesn't automatically recognise citizenship by descent for children born outside Fiji.

Legislation introduced in 1986 narrowed Australian citizenship by removing its automatic conferral at birth. It changed to a system of citizenship by descent, where at least one parent is required to be an Australian citizen or permanent resident. Children of non-residents born in Australia can only become citizens if they live in Australia until they are 10 years old.

The High Court's 5-2 rejection of the Tania Singh case on September 9 was a blow to Sereana and many other families in her situation, because it reaffirmed that, despite being born on Australian soil, children who were under the age of 10 could not be considered citizens.

However, there was a clause inserted in the 1986 legislation to protect against the potential for statelessness, and it is this provision that Sereana is hoping they can prove should be applied to her two daughters. If all five of Sereana's children are found to be citizens, Sereana and her supporters believe it will strengthen the chances of the immigration minister intervening to grant the whole family the right to stay in Australia.

At the beginning of 2004, ChilOut and the Bellingen group of Rural Australians for Refugees arranged pen-pals for Glen, Lomani and Mereani. They were flooded with dozens of letters from school children, parents and teachers.

Sereana showed them to me when I visited her on October 20. She was moved to tears as she read out some of the messages. Hand-written and decorated, some are in the shape of doves. Others are covered with glitter and pictures of nice places.

One card, signed by a child named Solomon, had a roughly cut-out picture of a happy, laughing family stuck on it, and reads: "We hope you can be happy here!"

"Our government is not right in keeping you there", another card says. "Keep positive, you will be out soon. Priscilla."

Sereana told me she often reads the cards to her children when they are feeling down, and they smile and feel a bit better.

"Don't give up hope", said another card. "Most people in Australia are friendly, and want you here." And another: "We hope that our government will wake up soon and let you come outside to the world from which you belong, love Phillip."

Sereana was very distressed about her five children being separated from each other. Sally was not doing well in school, and her teachers were concerned. She didn't talk much when she visited Sereana, who felt that contact between them was slipping away.

Some problems with their father resulted in the children being placed in the care of their uncle.

Sereana pleaded that she be released to look after them, but DIMIA told her that the only way she could be with her children was for them to be brought into detention as well.

Despite the fact that DIMIA policy states that citizens will not be detained except as a last possible resort, Sally and Jope are now in detention as well.

Jill Pearce, principal of Macarthur Adventist School, which Sally and Jope attended, has publicly expressed her concern at the children's detention. Pearce told ABC Radio Australia News on October 15 that she asked Villawood's management for the children to be allowed to return to school, but has not received a reply.

"We want them to continue on with their education without having it interrupted", said Pearce. "The school is probably the only stable place they've got at the moment. They love their friends, they are secure here."

Pearce recently notified Villawood management that the school was willing to waive the children's school fees and pick them up from the detention centre every day. To date, management has not responded to the offer.

There is a growing call, endorsed by the National Council of Churches, to set up a new visa category for people who don't meet the criteria for refugee status but who have compelling humanitarian grounds for being able to stay, such as children born in Australia.

Individuals and families who have lived for a long time in Australia are routinely denied the opportunity to become permanent residents. Many such cases involve sending children to countries they have never been to before, countries that are in every sense foreign to them, where they may not even speak the language.

The vast majority of people living in Australia without valid visas (so-called "illegals") are making a valuable contribution to society, just like Sereana and her husband, who have worked, paid taxes and contributed to their community over a period of 15 years.

In 1980 there was a general amnesty for anyone without a valid visa, but legislation was enacted disallowing any future amnesties and both major political parties agreed that there should not be any more.

DIMIA argues that Sereana should return to Fiji with her children and apply come back with them when they turn 18. But Sereana knows that would not be possible because she would have to pay the costs of her detention before being allowed back into the country, something she would never have the money for.

By end of September 2004, Sereana had been in detention for 791 days, and each of her three children for 740 days. Based on an estimated cost of $125 per day, the total cost of their detention would come to more than $380,000.

Glen, Jope and Sally, all Australian citizens, deserve the right to grow up in the country where they were born. Lomani and Mereani deserve the right to have the country where they were born recognise their right to citizenship if the alternative is to remain stateless.

All five children deserve to have the love and care of their parents. The 1986 amendment to Australian citizenship should be revoked so no families suffer the way Sereana's has.


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