Homecoming ... Faisal Arysad's mother and grandmother await his return. Photo: Rebecca Henschke
FAISAL ARYSAD was 16 when he was offered a job as a kitchen hand on what he was told was a fishing boat. The offer of $500 was a fortune - almost one year's pay - for the boy who lived with his mother and grandmother in a dirt-poor fishing village in West Timor.
When passengers boarded the boat, he was told it was for a sightseeing tour of the surrounding islands. The next he knew, he told his lawyers, their boat was picked up by an Australian navy ship and he was put in detention, then jail.
''The people smugglers simply get naive people, and the youths fall into that category,'' said Faisal's Brisbane lawyer, David Svoboda.
Sent home ... Ako Lani, 16, back fishing on Roti Island. After six months in an Australian adult jail, he was led into court in manacles. Photo: Rebecca Henschke
''These kids sit in villages with no work. Recruiters walk into the village offering $500. They tell them they'll be met by a ship to pick these people up at their destination. When a ship rolls in and it's full of cannons it's really surprising. These kids are genuinely surprised it's the Australian navy.''
Despite Faisal telling Immigration officials he was 16, the federal police did not believe him. They gave him a widely discredited wrist X-ray test which estimated his age to be about 19. The police charged him with people smuggling and he was put in the Arthur Gorrie maximum-security jail in Brisbane, which houses paedophiles including Robert John Fardon and Brett Peter Cowan, the accused killer of Daniel Morcombe.
But eight months later the charges have been withdrawn after Mr Svoboda flew to Indonesia to gather proof of Faisal's age.
Catch and release ... Ako Lani was sent home when it was accepted he was not an adult. Photo: Rebecca Henschke
Faisal's case was one of two due to go to court last Wednesday. But the charges were dropped because the Commonwealth Director of Public Prosecutions could not prove they were adults. The boys, both from Kupang, will now be sent back to their families.
The cases highlight the plight of about 50 Indonesians who say they are children, who are incarcerated in adult jails throughout Australia.
The government has disputed the number, telling the Greens senator Sarah Hanson-Young in Parliament last week that there were 25 in custody claiming to be under-age. The federal police said in a statement on Friday there were 34 cases of Indonesian nationals in jail in which age was being disputed. The Indonesian consulate general in Sydney believes there about 50.
Whatever the number, the jailing of the boys has sparked growing outrage among lawyers, diplomats, politicians and human rights activists in Australia and Indonesia, particularly when measured against Indonesia's treatment of a 14-year-old Lake Macquarie boy who appeared in court in Bali on Friday, accompanied by his father, and pleaded for leniency on drug offences.
''We have one boy over there who is getting KFC sent in and is in a room [near] his parents,'' Mr Svoboda said. ''These kids aren't getting too much nasi goreng delivered to Arthur Gorrie, are they?''
It has angered Indonesian lawyers and activists who staged a little-reported protest outside the Australian embassy in Jakarta two weeks ago, calling for the federal government to send the boys home.
Indonesian diplomats in Australia are so concerned they have enlisted the help of a barrister, Mark Plunkett, to investigate the cases. They also want the government to put in place a co-ordinated, consistent plan to establish the proper ages of the teenagers.
Mr Plunkett said it would involve visits to families and Indonesian villages, where birth documentation is rare, to obtain credible information about their ages.
''They don't make any effort to check whether they are children or not,'' Mr Plunkett said. ''They rely on junk science and don't even bother to call their parents. Police don't even do the most basic investigation 101: find mum and dad.''
The federal police, however, said in a statement that it did seek the assistance of Indonesian authorities to gather as much information as possible for age determination inquiries.
Mr Plunkett helped secure the release of three teenagers in July. They had been accused of lying about their ages. He travelled to Indonesia with Indonesian expert Tony Sheldon to gather affidavits and evidence from their village chief about their age.
He said the jailing of the boys was ''despicable'' and a breach of the United Nations' Convention on the Rights of the Child. He also said the jailing of the children could be ''actionable''. The boys had been brought to court in manacles and subjected to cavity searches when put into Arthur Gorrie prison.
In that case, the federal police had ignored advice from the Immigration Department and documentary evidence, in the form of birth extracts, to pursue the prosecutions against the three teenagers from Roti Island - Ose Lani, who said he was 15 and John Ndollu and Ako Lani, who said they were 16. They had worked as deck hands and cooks on a boat that arrived at Ashmore Reef last year.
They spent months in jail at Arthur Gorrie jail. They were released when the court accepted they were children.
Federal government policy is that children acting as crew on the asylum seeker boats should not be charged but sent home. Adult crew members are charged with people smuggling offences and face five-year mandatory jail sentences.
A federal police spokesman conceded there ''is an onus on the AFP to charge and bring before the courts all adults involved in people-smuggling endeavours''.
''Where all available information indicates the person is a minor, and there are no exceptional circumstances, the person is returned to their country of origin. Statistics since September 2008 indicate that approximately one in three (38 of 107) of those people who undergo an age determination test are returned to their country of origin,'' the spokesman wrote in an email. Mr Plunkett said if there was any doubt they should be sent home.
But many of the Indonesian crew, who say they are aged 14 to 17, face people smuggling charges as adults because the AFP continues to use a widely discredited wrist X-ray test, despite being warned by international experts that it is unethical, unreliable and banned in Britain.
When the federal police do not believe the age of the person, they have been subjected to the wrist X-ray known as the Greulich and Pyle test. The police have argued it is the only prescribed method under the law to check a person's age and they continue to use it. But this method has not gone well.
Since 2008, the federal police have carried out 107 wrist X-rays of teenage crew on asylum seeker boats to prove they are over 18. The police will not say say how many of those who claim to be under-age have been charged. However, the Commonwealth prosecutor's office has confirmed that 32 cases, including the two last week, have been dropped because the test could not be relied on in court. But one case that has not been dropped is Sam (not his real name), who says he was 15 when he arrived as a cook on an asylum seeker boat in April last year. His mother and sister who spoke to a Perth journalist from their home on the outskirts of Solo, in central Java, insist he was born in April 1995.
Police did not believe him and gave him the wrist X-ray, which put his age at over 18. He was charged with people smuggling offences and has been in the maximum-security Hakea jail in Perth ever since, awaiting trial.
Catherine Branson, QC, the president of the Australian Human Rights Commission, has raised serious concerns about the process being used for determining age in criminal proceedings.
''The use of wrist X-rays for determining age may have led to errors in age determination with the result that some children may have been incarcerated in adult prisons,'' she said in a statement. ''The commission has recently received notifications from 11 Indonesian nationals detained in adult prisons who claim to be children.'' Ms Branson said the commission forwarded the details to the Attorney-General's department and was waiting for a response. The commission is considering what further action it might be able to take.
A spokeswoman for the Minister for Home Affairs, Brendan O'Connor, said the government had already asked the federal police to improve its processes for age determination including dental X-rays, more thorough attempts to get information about a person from their homes and families, and additional interview techniques.
The improved processes are too late for Faisal, who has spent eight months in detention and jail. However, it is hoped this week authorities will fly him home to his village in Kupang to be reunited with his mother and grandmother.
...And more innocents abroad
Ardi, an illiterate orphan from the island of Lombok, was recruited when he says he was 16. Recruiters who turned up in his village in February last year offered him $550 to work as a deckhand on a boat taking some foreigners around the islands.
Ardi's boat, full of Afghan refugees, was picked up by an Australian customs vessel off Western Australia the next month. He spent 10 months in immigration detention, without charge, before he was sent to the Arthur Gorrie adult jail in Brisbane on criminal remand. He had no form of identification and no way to prove his age. His lawyer, David Svoboda, made three trips to Indonesia to get the necessary papers. Eventually, the charges were dropped and Ardi was sent home after 19 months.
Mukhtar says he was 15 when he was recruited from the island of Roti. He was paid $400 to act as crew. In late 2009 he was caught off Christmas Island, held for eight months in detention and transferred to the maximum-security Hakea Prison in Perth alongside killers and paedophiles. After a year and 11 months, a Perth court dismissed charges of people smuggling and he was sent home last month.
X-ray age test deemed useless
INTERNATIONAL experts warn that using wrist X-rays to determine age is unethical, inaccurate and potentially unlawful. To expose the fallibility of the police's preferred technique, Terry Fisher, from Fisher Dore Solicitors in Brisbane, commissioned expert analysis from England's former children's commissioner, Professor Al Aynsley-Green, who says the X-rays ''can never tell precisely the chronological age'' of an adolescent. It could only estimate skeletal maturity by bone density. The result could be two years too old or too young, Professor Aynsley-Green said. In some cases, the discrepancy can be five years. ''Serious injustice is possible,'' he said.
A United Nations child protection agency and the Australian Medical Association have called the test useless.