Commission submission - Martizi
Legal
IN THE FEDERAL COURT OF AUSTRALIA
) No. W373 of 2001
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. W378 of 2001
On appeal from a
Judge of the Federal Court of Australia
Between:
SIMON
ODHIAMBO
Appellant
and
PETER
MARTIZI
Appellant
And:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
WRITTEN SUBMISSIONS
FOR THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (INTERVENING)
1. INTRODUCTION
1.1 On 5 March 2002,
the Full Court granted leave to the Human Rights and Equal Opportunity
Commission ("the Commission") to intervene in this appeal, pursuant
to s.11(1)(o) of the Human Rights and Equal Opportunity Commission
Act 1986 (Cth).
1.2 The Commission's
submissions are primarily directed to the legal obligations imposed on
the Refugee Review Tribunal ("RRT") and the learned trial judge
by Part 7 of the Migration Act 1958 (Cth) ("Migration Act")
and the Immigration (Guardianship of Children) Act 1946 (Cth) ("the
Immigration (GOC) Act").
1.3 The issues raised
by this case depend upon the effect of s.6 of the Immigration (GOC)
Act, which makes the Respondent the guardian of "every non-citizen
who arrives in Australia after the commencement of this Act". Secondly,
they involve the effect of a purported delegation by the Minister pursuant
to s.5 of the Act. There has been no relevant amendment to the Immigration
(GOC) Act since the compilation prepared on 7 February 2001.
1.4 To the extent
that they are relevant, reference is also made to the Immigration (Guardianship
of Children) Regulations 1946 (Cth) ("the 1946 Regulations")
which came into operation on 30 December 1946.[1] Those
Regulations, together with amending statutory rules, were in force until
repealed by the Immigration (Guardianship of Children) Regulations
2001 (Cth), which commenced on 1 November 2001. [2]
The "Child Welfare laws" identified for the purposes of reg.4
of the 1946 Regulations are defined, in relation to Western Australia,
as the Child Welfare Act. [3]
1.5 The relevant
provisions of the Migration Act in relation to the review of each
decision in this case are those found in Reprint No. 7. The new Part 8,
containing the privative clause provision, was introduced by the Migration
Legislation Amendment (Judicial Review) Act 2001 (Cth). Schedule 1
to the Act, which contained the new Part 8, commenced on 2 October 2001.
[4] The new provisions do not apply in relation to an
application for judicial review which had been made before the commencement
of the Schedule. [5] In the matter of Martizi, the application
for an order of review was filed on 18 April 2001 [6]
and, in the matter of Odhiambo, on 8 May 2001. [7] Accordingly,
the grounds of review in each matter were those identified in s.476 of
the Migration Act, prior to the repeal and replacement of that
provision.
2. SUMMARY OF THE COMMISSION'S
SUBMISSIONS
2.1 In summary, the
Commission submits that:
(a) The instrument
of delegation signed by the Minister on 1 December 1999 is not a valid
exercise of the power conferred by s.5 of the Immigration (GOC) Act
as it involves -
(i) global delegation
in relation to a class of children, the membership of which will change
from time to time;
(ii) a joint delegation to a range of individuals;
(iii) a delegation where the repositories of responsibilities may not
even be aware of the existence of a particular child.
(b) The instrument
of delegation signed by the Minister on 1 December 1999 may otherwise
not be constitutionally valid as the conferral of guardianship functions
on State officers has is not been authorised by State law and directly
interferes with functions of State government.
(c) Part 7 of the
Migration Act and the Immigration (GOC) Act should be interpreted
consistently with Australia's human rights obligations under the Convention
on the Rights of the Child ("CROC"). In particular, the RRT
and the learned trial Judge should have declined to exercise their respective
powers and jurisdiction until satisfied that all steps necessary to ensure
protection of the best interests of the Appellants as minors had been
taken.
(d) In particular,
the RRT and the Federal Court were obliged to ensure that:
- the Appellants
had a guardian for the purposes of the proceedings; - appropriate steps
had been taken by the guardian to provide the Appellants with legal
advice and assistance; - if no guardian
were appointed, or if the appointed guardian had not so acted, the proceedings
were adjourned pending such steps being taken; and - the Appellants
were advised that it was in their best interests to obtain legal advice
and assistance in relation to the application.
(e) The RRT erred
in failing to apply correct principles in the assessments of the factual
claims.
(f) The RRT erred
in failing to consider relevant matters in the assessment of the credibility
of the Appellants.
(g) The RRT erred
in failing to address whether Kenya might seek to repatriate the Appellant
Odhimabo to Sudan if he were returned to Kenya.
(h) The RRT erred
in failing to give adequate consideration to the possibility that the
Appellant Martizi might face Convention based persecution if he were returned
to Rwanda or the Democratic Republic of Congo.
(i) The trial judge
erred in failing to set aside the decisions of the RRT.
3. APPLICATION OF PRINCIPLES
OF INTERNATIONAL HUMAN RIGHTS LAW
Statutory construction
3.1 It is a long-established
presumption that a statute is to be interpreted and applied, as far as
its language admits, so as not to be inconsistent with the comity of nations
and established rules of international law. [8] In the
USA it has been said that if the legislature intends to effect inconsistency
"it must express its intention with irresistible clearness to induce
a Court to believe that it entertained it." [9]
The High Court has expressed the presumption as operating in cases of
ambiguity. Where there is ambiguity, the Court has held, courts should
favour a construction of a statute which accords with the obligations
of Australia under an international treaty. [10] This
is because common sense indicates that Parliament intended to legislate
in accordance with Australia's international obligations. [11]
3.2 The concept of
'ambiguity', in this context, is not intended to impose a severe constraint
upon reference to international obligations. In principle, it is merely
the obverse of the coin of Parliamentary supremacy: if Parliament expresses
a clear intention to legislate in consistency with Australia's international
obligations, that intention must be given effect by the courts. As noted
by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs
v Teoh: [12]
"In this
context, there are strong reasons for rejecting a narrow conception
of ambiguity. If the language of the legislation is susceptible of a
construction which is consistent with the terms of the international
instrument and the obligations which it imposes on Australia, then that
construction should prevail."Other members
of the Court have confirmed that a narrow conception of ambiguity is
to be rejected. [13]
The development
of the common law
3.3 In more recent
times, the function of the courts in developing the common law has been
freely acknowledged. [14] It is now beyond dispute that
in appropriate cases, judges carry out their function by developing and
refining the common law. [15] In Mabo [No. 2],
Brennan J stated: [16]
"The common
law does not necessarily conform with international law, but international
law is a legitimate and important influence on the development of the
common law, especially when international law declares the existence
of universal human rights."
3.4 It has also been
said that where the common law is uncertain, the Court should prefer an
answer in conformity with international norms. [17]
It would be incongruous that Australia should adhere to international
human rights treaties such as the CROC if Australian courts did not, in
some fashion, recognise the entitlements contained therein. [18]
As Mason CJ and Deane J stated in Minister of State for Immigration
and Ethnic Affairs v Teoh: [19]
"ratification
by Australia of an international convention is not be dismissed as a
merely platitudinous or ineffectual act, particularly when the instrument
evidences internationally accepted standards to be applied by courts
and administrative authorities in dealing with basic human rights affecting
the family and children. Rather, ratification of a convention is a positive
statement by the executive government of this country to the world and
to the Australian people that the executive government and its agencies
will act in accordance with the Convention [on the Rights of the Child]."
To adopt such an
approach is merely to recognise that values of justice and human rights
are just as much aspirations of the contemporary Australian legal system
as they are of the international legal regime. [20]
Construction principles
3.5 Part 7 of the
Migration Act and the Immigration (GOC) Act should be interpreted
consistently with Australia's human rights obligations. The international
human rights principles which bear upon the issues before the Court and
to which the Court ought have regard in the application of the principles
of statutory construction are the following:
(a) the best interests
of the child principle - article 3(1) of the CROC; [21]
(b) the right of the child to be heard - article 12 of the CROC; [22]
(c) the right to special protection and assistance - articles 20 and
22 of the CROC;[23] and
(d) the right to legal and other appropriate assistance in article 37(d)
of the CROC .[24]
3.6 The CROC was
adopted by the United Nations General Assembly on 20 November 1989. Australia
ratified the CROC on 17 December 1990 and it came into effect for Australia
on 16 January 1991. The CROC applies to all people below the age of eighteen
years [25] within the Australian jurisdiction (including
those who enter the country without authorisation). That is, the CROC
applies to minors who are asylum seekers or refugees and also minors whose
applications for refugee status have been refused.
Best Interests
of the Child
3.7 That the best
interests of the child shall be a primary consideration in all actions
concerning children is one of the general principles of the CROC.[26]
This principle was first recognised in the 1959 Declaration on the Rights
of the Child.[27] It requires that the best interests
of children be the active consideration of all administrative authorities,
legislative bodies and "courts of law" and taken into account
as a primary consideration. [28] In Minister for
Immigration and Ethnic Affairs v Teoh a majority in the High Court
accepted that the provisions of article 3 were intended to apply to all
"actions" that have consequences for children and not merely
those that were directed at children. [30]
Right of the child
to be heard
3.8 Article 12 is
also a general principle of fundamental importance relevant to all aspects
of implementation of the CROC and to the interpretation of all other articles.
[31] The Committee on the Rights of the Child [32]
has consistently emphasized that the child must be regarded as an active
subject of rights. Article 12 underlines children's status as individuals
with fundamental human rights, views and feelings of their own. [33]
Paragraph 2 specifically provides the child with the right to be heard
in any judicial and administrative proceedings affecting him or her, including
proceedings involving the determination of refugee status, and that those
views be given "due weight".
Special Protection
and Assistance
3.9 Unaccompanied
children [34] seeking refugee status are among the most
vulnerable groups in the world. The language and cultural barriers normally
faced by refugees in attempting to establish their claims are compounded,
in the case of children, by their lack of maturity and the fact that the
status may have arisen from situations or experiences of their relatives
rather than issues which the children have experienced themselves.
3.10 Articles 20
and 22 of the CROC recognise this vulnerability of unaccompanied children
and place obligations on State parties to provide "special protection
and assistance" (article 20) to the child "temporarily or permanently
deprived of his or her family environment" [35]
and "appropriate protection and humanitarian assistance" (article
22) to refugee children. In addition, article 37(d) provides that "every
child deprived of his or her liberty shall have the right to prompt access
to legal and other appropriate assistance".
3.11 The international
community has recognised that unaccompanied asylum seeking children warrant
special attention in the process of determining their claims to refugee
status. [36] The United Nations High Commissioner for
Refugees ("UNHCR") has developed two sets of guidelines which
detail the essential safeguards for the status determination of such children:
Guidelines on Policies and Procedures in dealing with Unaccompanied
Children Seeking Asylum (February 1997) and Refugee Children: Guidelines
on Protection and Care (1994) ("the UNHCR's 1994 and 1997 Guidelines").
3.12 The UNHCR's
1994 and 1997 Guidelines mandate:
(a) the appointment
of an independent and formally accredited organisation which will appoint
a guardian or adviser as soon as the unaccompanied child is identified.
The guardian or adviser should have the necessary expertise in the field
of childcaring, so as to ensure that the interests of the child are safeguarded,
and that the child's legal, social, medical and psychological needs are
appropriately covered during the refugee status determination procedures;
[37]
(b) the tailoring
of the refugee determination procedures to meet the needs of children
[38] and in particular,
(i) a child's refugee
status application should be given priority and determined promptly
and fairly; [39]
(ii) an asylum-seeking child should be represented by an adult
who is familiar with the child's background and interests and able to
promote a decision that is in the child's best interests;[40]
(iii) access should also be given to a qualified legal representative;
[41] and
(iv) asylum seeking children should be kept informed about the refugee
determination process, where they stand in the process, what decisions
have been made and the possible consequences. [42]
4. THE STATUTORY SCHEME
Guardianship
4.1 The Immigration
(GOC) Act states in s.6:
The Minister
shall be guardian of the person, and of the estate in Australia, of
every non-citizen child [43] who arrives in
Australia after the commencement of this Act to the exclusion of the
father and mother and every other guardian of the child, and shall have,
as guardian, the same rights, powers, duties, obligations and liabilities
as a natural guardian of the child would have, until the child reaches
the age of 18 years or leaves Australia permanently .
4.2 The effect of
this provision was considered by North J in two judgements in X v Minister
for Immigration and Multicultural Affairs. [44]
In these cases, North J found that the duty of the guardian under s.6
is to protect the interests of the person under care, for example, by
ensuring that the person under care is properly fed, clothed, housed and
educated. [45] The guardian is also obliged to accord
to children all of the fundamental human rights enshrined in the CROC
[46] and must act at all times in the best interests
of the child.[47] North J in X v Minister for Immigration
and Multicultural Affairs and French J in Jaffari v Minister for
Immigration and Multicultural Affairs have both held that the Federal
Court has jurisdiction to supervise the Minister's function as guardian.
[48]
4.3 The effect of
s.6 of the Immigration (GOC) Act, with particular reference to
overseas adoptions, has also been considered in a number of cases including
Re adoption of S [49] and Re Application of
K. [50] In a passage in the former case, adopted
in the second, Blackburn J stated, after referring to the terms of s.6:
[51]
"The point
is that the section makes the Minister the guardian and does not say
that the Minister is to supersede the parents for all purposes whatever."
Whether there are
limits to the powers which may be exercised by the Minister, and if so,
what they are, is not relevant for present purposes. It will, however,
be necessary to consider specific aspects of the powers which may be conferred
on a guardian, in relation to the possible release of a non-citizen child
from immigration detention and in relation to the commencement and maintenance
of visa review proceedings, both before the RRT and in the Court.
4.4 At common law
powers of guardianship include the powers of the "natural guardian",
a guardian appointed by will and a court appointed guardian. As noted
by Blackburn J in Re adoption of S [52] the "natural
guardian" meant the father and, after his death, the mother of the
child. Putting to one side testamentary guardians, the role of alternative
guardian was a matter to be decided by the Court. It did so in exercise
of its parens patriae jurisdiction. The circumstances in which
a child may now be made a ward of the court and the powers which may be
exercised in relation to the child are largely dealt with by statute.
In Bennett v Minister for Community Welfare the statutory regime
which placed wards under the guardianship of the Director of Community
Welfare was accepted as sufficient to create a fiduciary relationship
between the Director and the ward. [53]
4.5 By 1973, the
Guardianship Act 1973 (UK) spoke of "parental rights and duties",
a less old-fashioned term, but one which gave rise to some uncertainty.[54]
Legislation has also changed in this country, so that the Family Law
Act now speaks of parenting orders, residence orders, contact orders
and specific issues orders. [55] Specific provision
was made by the Family Law Reform Act 1995 (Cth), by way of transitional
provisions [56] which sought to identify the effect
of orders under the old Act, including "old guardianship orders".
In terms which were thought no longer to be satisfactory, the old Family
Law Act provided that a guardian had "responsibility for the
long-term welfare of the child".[57] Sometimes
described as "rights relating to the daily care of the child".
What is clear, however, is that the concept of a guardian has no meaning
except with respect to the relationship between two individuals.
4.6 The power of
delegation conferred by s.5 of the Immigration (GOC) Act is granted
in relation to "any non-citizen child or class of non-citizen children".
The first question raised by the conferral of a power in those terms is
whether it can be exercised globally and in relation to people who do
not fall within the category so specified at the time of the delegation.
The question is whether a delegation may be ambulatory in effect. The
fact that the relevant delegation in operation at the time the Appellants
arrived in Australia was global in its terms, may also have consequential
significance for the other questions dealt with below.
4.7 The issue is
whether it is necessary for the Minister to exercise his power of delegation
by conferring his powers on a specific officer or authority of "the
Commonwealth or of any State or Territory". Putting to one side the
question of a delegation to a Commonwealth officer, the instrument of
1 December 1999 seeks to delegate all the Minister's powers to over 50
State and Territory officers or authorities, identified by departmental
description. [58] There is no doubt that the law understands
the concept of "joint guardianship". However, the concept operates
within a quite limited framework. In particular, the concept of shared
duties and responsibilities concerning the care, welfare and development
of children is applied in relation to the parents of the child and is
identified as one of the underlying principles of Part VII of the Family
Law Act. [59] However, it would rarely be the case
that the best interests of a child would permit or require a guardianship
order which jointly appointed a range of individuals in disparate parts
of the country, many of whom would have no connection with the individual
concerned, or even know of his or her existence. To the extent that the
document signed by the Minister on 1 December 1999 purports to have such
an effect, it cannot be a valid exercise of the power conferred by s.5
of the Immigration (GOC) Act.
4.8 Under the child
welfare laws in the various States and Territories, the means by which
a government officer obtains powers and functions of wardship is almost
invariably by way of court order. That was undoubtedly so in relation
to Western Australia. [60] Regulation 4 of the 1946
Regulations purported to provide [61] that the child
welfare laws of a State shall not apply "in relation to any non-citizen
child in respect of whom the Minister has delegated his powers and functions
under s.5 of the Act".[62] However, the regulation
further provides that the State officer will have the rights and powers
which would be exercisable by him or her "in relation to a child"
if committed to his or her custody or care or if a ward of the state.
Reference is made to the regulation, not for the purpose of construing
the Act, but to provide a more complete picture of the powers and functions
of guardianship with which the Act purports to deal. That picture confirms
that the relationship is indeed an individual one, involving powers and
functions which must be exercised in the best interests of the child,
in accordance with the principles set out above. A delegation of powers
and functions as guardian in relation to a particular child is readily
understandable in this context: however, the reference in s.5 to a possible
delegation in relation to a "class of children" should be read
so as to conform to a proper understanding of the concept of guardian.
Accordingly, a global delegation in relation to a class of children, the
membership of which will change from time to time, would not be valid.
As no more precisely defined class can be gleaned from the instrument
in question, the delegation appears to be invalid.
4.9 If the instrument
otherwise conformed to the terms of the Immigration (GOC) Act,
a question would arise as to whether a power which could be exercised
in those terms was constitutionally valid. [63] There
is no doubt that s.5 purports to authorise, in express terms, a power
to delegate to an officer or authority of a State. This in turn requires
attention to the concept of delegation.
4.10 In relation
to the powers of a guardian, the delegation must involve, not the conferral
of a benefit, but the conferral of responsibilities and obligations. Nor
are the responsibilities and obligations of an entirely discretionary
nature, such that they may be exercised or not, from time to time, at
the discretion of the repository of the power. A guardian has ongoing
mandatory obligations which must be exercised as occasion requires.
4.11 The constitutional
power to legislate with respect to "immigration and emigration"
[64] allows the Parliament to make laws with respect
to the guardianship of non-citizen children in Australia [65],
at least within certain limits which would no doubt include unlawful non-citizen
children in Australia. However, such a legislative power does not permit
the Parliament to conscript the public service of the States to carry
out the necessary executive functions to ensure the proper execution and
maintenance of the Commonwealth statute. [66] Such a
law would directly interfere with what are "clearly State functions
of government" and, not being a law of general operation, would contravene
both limbs of the prohibition identified in the Melbourne Corporation
Case.[67] As noted by Mason J in Victoria v Australian
Building Construction Employees' and Builders Labourers' Federation:
[68]
"If for
the protection of the States as constituent elements in the Federation
an implication needs to be made, then the implication that should be
made is that the Commonwealth will not in the exercise of its powers
discriminate against or 'single out' the States so as to impose some
special burden or disability upon them, unless the nature of a specific
power otherwise indicates, and will not inhibit or impair the continued
existence of the States or their capacity to function."
4.12 The passage
was cited with approval by Brennan J in The Tasmanian Dam Case.[69]
At the very least, no such power can be conferred on the executive of
a State government, without the consent of the State concerned.
5. THE RRT PROCEEDINGS
The "best
interests" principle
Appointment of a guardian
5.1 The RRT erred
in law in failing to identify its legal obligations under Part 7 of the
Migration Act, and the Immigration (GOC) Act, and in failing
to apply the law to the circumstances of this case. As child applicants,
the best interests of the Appellants should have been a primary consideration
at all stages of the processing of their claims.[70]
The UNHCR's 1994 and 1997 Guidelines provide valuable guidance on how
the children's best interests under the CROC should have been served by
the RRT. The Committee on the Rights of the Child has stated that the
UNHCR's 1994 Guidelines were "fully inspired by the Convention and
shaped in light of its general principles".[71] The
UNHCR has stated that a role of the 1997 Guidelines is to "promote
awareness of the special needs of unaccompanied children and the rights
reflected in the Convention on the Rights of the Child". [72]
5.2 The RRT should
have acted in the best interests of the Appellants by ensuring that the
Appellants had a guardian for the purpose of the proceedings. As highlighted
in the UNHCR's 1994 and 1997 Guidelines, the role of the guardian in this
context is to ensure that the child's legal, social, medical and psychological
needs are appropriately met during the RRT hearing. As the guardian should
have a personal knowledge of the Appellant, his background and unique
circumstances, the guardian would also be able to ensure that the RRT
considers all of the Appellants' claims.
5.3 It does not appear
to be disputed that neither of the Appellants had a person exercising
guardianship responsibilities on their behalf for the purposes of the
RRT proceedings. As outlined above [73], the Respondent
is the Appellants' guardian by virtue of s.6 of the Immigration (GOC)
Act. On 1 December 1999 , the Respondent purported to delegate all
of this powers and functions under the Immigration (GOC) Act (excluding
two sets of powers which are not relevant for these purposes) to various
office holders in the Western Australian Department for Family and Children's
Services ("WADFCS"). However, the affidavit sworn by Ms Katrina
Kannis in each matter demonstrates no basis for thinking that the purported
delegations to the WADFCS were treated by the relevant Commonwealth officers
as operative. First, she does not seek to annex the relevant delegation,
nor does she refer to it. Secondly, where reference is made to a Western
Australian government department, it is to the "Department for Community
Development", without reference to the terminology "Department
for Family and Children's Services". [74] The substance
of the relevant paragraphs are as follows:
"35. At
the time of the appellants reception in the Centre, DCD [Department
for Community Development] was not informed, as at that time DCD had
no involvement with the Centre. DCD's involvement with the Centre commenced
in March 2001.
36. DCD was not requested by DIMIA to become involved with the appellant
until late February 2002." [75]
In fact, Mr Gary
Dell-Bray, the Area Manager for "Family and Children's Services"
in Port Hedland, was present during both of the Appellants' RRT hearings.
In the Appellant Martizi's hearing, Mr Dell-Bray is described as a "support
person" and Mr Martizi is informed that he is independent of the
detention centre and the Respondent's Department. [76]
In the Appellant Odhiambo's hearing, Mr Dell-Bray is described as a "friend"
who is able to assist Mr Odhiambo if he does not understand anything or
requires an additional explanation. Mr Dell-Bray does not take part in
either proceeding. [77] It is clear that the Appellants
met Mr Dell-Bray for the first time on the day of their RRT hearings and
had no longer than five minutes to speak to him prior to the commencement
of those hearings. [78] Neither Appellant had any further
contact with him after this day. [79]
5.4 The Appellants
may have been entitled to bridging visas which would entitle them to be
released from the detention centre. [80] No responsible
guardian could ignore the possibility that a child might be entitled to
release from detention. A critical element of the criteria for a bridging
visa is that the applicant is an eligible non-citizen as identified in
sub-reg. 2.20(7). [81] Sub-reg. 2.20(7) concerns a non-citizen
who, amongst other things, has "not turned 18" and -
(d) in respect
of whom a child welfare authority of a State or Territory has certified
that release from detention is in the best interests of the non-citizen.
If the Appellant
had been in the guardianship of an officer of the WADFCS, it is inconceivable
that this authority would have been so derelict in its duty as not to
have given consideration to the availability of a bridging visa which
would entitle the Appellants to be released from immigration detention.
It follows that no such guardianship relationship existed: it further
follows that the purported delegation by the Minister of his powers was
recognised by the Department of Immigration and Multicultural and Indigenous
Affairs as being ineffective or invalid.
5.5 Prior to the
execution of the further instrument of delegation on 11 January 2002,
which did not occur until some months after the judgment of the trial
judge, there appears to have been no other delegation in force.
5.6 On the basis
that there was no valid delegation at the relevant times, the question
is whether the Respondent personally was properly able to act as guardian
of the Appellants and did so.
5.7 It is clear that
the Respondent personally, or through an officer in his Department, could
not properly fulfil his guardianship responsibilities in relation to the
Appellants while he was the party on the opposite side of the record.
[82] This conflict of interest prevents him from undertaking
the role set out in paragraph 4.2.
5.8 There is limited
evidence to suggest that any actions undertaken by the Minister were directed
to the exercise of his powers as guardian. The evidence of Ms Kannis,
of a general nature, is irrelevant. She swore each of her affidavits in
response to a direction made by this Court that the Respondent file an
affidavit "describing the performance of guardianship duties in respect
of" each Appellant, pursuant to s.5 of the Immigration (GOC) Act.[83]
She asserts that she was a delegate of the Minister in relation to his
guardianship powers and functions.[84] However, as already
noted, the delegation referred to was not made until 11 January 2002.
5.9 The affidavits
of Ms Kannis do indicate that the Minister did not personally undertake
any of his guardianship responsibilities in respect of these Appellants.
Many of the Appellants' physical needs, such as to be clothed, fed and
housed, were met through the provision of services by Australian Correctional
Management Pty Ltd, the custodial authority which runs the detention centre
in which they were held.[85] However, the critical questions
of how the proceedings should be run and whether the Appellants should
seek bridging visas could not conceivably fall within the functions of
a custodial authority.
5.10 In her affidavits,
Ms Kannis provides a partial quotation from clause 9.2.1 of the "Immigration
Detention Standards", which are apparently imported by some means
which is not identified, into a contract between the Commonwealth and
Australasian Correctional Services Pty Ltd, who appear to provide custodial
and other services at the detention centre. [86] There
is no suggestion that the contract involved a delegation of powers under
s.5 of the Immigration (GOC) Act. Nor does it appear that the contract
purports to be an exercise by the Minister of his guardianship powers,
or to be anything beyond a standard arrangement whereby the government
has contracted for services in running a custodial establishment.
Legal advice and
representation
5.11 The RRT should
also have acted in the best interests of the Appellants by ensuring that
appropriate steps had been taken by the Appellants' guardian to provide
the Appellants with legal advice and assistance in relation to their application
for review.
5.12 It is clear
that no appropriate steps were taken by the guardian to provide the Appellants
with legal advice and assistance in relation to their applications for
review.
5.13 Ms Kannis does
not suggest that the Minister provided assistance in relation to the protection
visa application and associated bridging visa application made by the
Appellants on 17 June 2000.[87] In relation to the application
for review to the RRT, from the Minister's refusal of his visa application,
it appears that the Appellants had available to them legal assistance
of the same general category as is provided to all persons in detention
pursuant to the Immigration Advice and Application Assistance Scheme.
It is conceded that that Scheme did not extend beyond assistance with
the RRT:[88] it is also apparently conceded that the
solicitors who are meant to assist the Appellants were in Melbourne. Mr
Odhiambo describes the assistance he received from the solicitors in paragraphs
7-9 of his affidavit. [89] The Appellant, Peter Martizi,
saw a person whose name was not known to him, but whom he describes as
a lawyer from Macpherson & Kelley, at Port Hedland. [90]
The lawyer apparently attended the interview and thereafter did not trouble
to contact his client. The lawyer did not assist to fill out an application
to the RRT, although he appears to have been allocated a lawyer from the
same firm of solicitors for the purpose of the hearing.[91]
The lawyer apparently attended the RRT hearing by video conference, but
did not speak. [92] He had no further contact from the
lawyer. [93]
5.14 There is a question
of whether the Carltona principle [94] could
apply to the exercise of individual powers of guardianship by a Commonwealth
officer. Although the idea that a Minister may need to act by an agent
lies at the heart of the Carltona principle, the principle has
been described as relating to "administrative functions".[95]
However, in circumstances where there is an express statutory power of
delegation and the power is the exercise by the State of the responsibilities
of parents of children during their minority, that principle should not
be applied. [96]
5.15 As the guardian
of the Appellants, it is clear that the Minister could not act for them
or advise them in the present proceedings, because he was the party on
the opposite side of the record. [97]
5.16 In X v Minister
for Immigration and Multicultural Affairs, [98]
North J held that it was not necessary for the young person involved to
have a tutor appointed for the purposes of commencing proceedings in the
Federal Court. Following the decision of the Court of Appeal of New South
Wales in Haines v Leves, [99] a case involving
a complaint by a minor under the Anti-Discrimination Act 1977 (NSW),
North J held that the proceedings were not invalid for want of a tutor.[100]
However, it does not follow that minors are not entitled to receive
proper advice and assistance for the purpose of pursuing statutory claims.
[101] Rather, his Honour accepted, as a matter of principle,
that "the rights sought to be vindicated are fundamental human rights",
which not only fashioned the extent of the common law principle, [102]
but was also relevant to the exercise by the Court of its own powers and
functions.[103] In Bennett v Minister of Community
Welfare Mason CJ, Deane and Toohey JJ found that the statutory guardian
had a positive duty to obtain independent legal advice for his ward with
respect to the possible existence of a cause of action arising out of
circumstances in which the ward sustained the amputation of four fingers
of his left hand.
5.17 The importance
of the Appellants having assistance from a guardian who is able to arrange
the supply of competent and independent legal advice is demonstrated by
the affidavit of Ms Le Sueur of 2 March 2002. [104]
5.18 In the case
of both Appellants their ability to present arguments at the RRT hearing
was, in many respects, critical to their case. This was because the RRT
relied heavily on the evidence given by each of the Appellants at their
hearings, and their explanations for the inadequate and conflicting nature
of this evidence, in the determination of their applications.
Credit findings
5.19 The RRT made
adverse credit findings against each Appellant in a comprehensive manner,
rejecting their claims in whole. The UNHCR's 1997 Guidelines provide that:
"Although
the same definition of a refugee applies to all individuals regardless
of their age, in the examination of the factual elements of the claim
of an unaccompanied child, particular regard should be given to the
circumstances such as the child's stage of development, his or her possibly
limited knowledge of conditions in the country of origin, and their
significance to the legal concept of refugee status, as well as his/her
special vulnerability. Children may manifest their fears in ways different
from adults. Therefore, in the examination of their claims, it may be
necessary to have greater regard to certain objective factors, and to
determine, based on these factors, whether a child may be presumed to
have a well-founded fear of persecution." [105]
5.20 In assessing
the factual basis of the Appellants' claims, the RRT failed to properly
take into account and assess the following relevant matters:
- the age, maturity
and state of development of the Appellants both at the time of the hearing
and at the time of the relevant events occurring; - the capacity
of the Appellants to communicate their experiences and the impact of
any trauma suffered by the Appellants at a young age on this capacity,
(for example, no reference is made to the comments by the interviewing
officer in her Stowaway Interview Report dated 13 May 2000 that the
Appellant Martizi "became emotional" at the end of the interview
when discussing Rwanda); [106] and - the special vulnerability
of the Appellants given that they did not have a guardian for the purposes
of the proceedings, nor a legal representative present at the hearing.In
fact, in neither case was the applicant able to attend physically before
the RRT member: each hearing was conducted by video-conference link.
5.21 In Uthayakumar
v Canada (Minister of Citizenship and Immigration), [107]
the Federal Court of Canada considered a case very similar to that of
the Appellants. The applicants seeking recognition of their refugee status
in that case where two unaccompanied minors - a 12 year old boy and his
14 year old sister. The Convention Refugee Determination Division ("the
Panel") [108] rejected their claims for refugee
status as they did not find the applicants' testimony credible. The Panel
found the 12 year old boy was "evasive" and that his explanation
of how he had arrived in Canada was not plausible. It found the 14 year
old girl's testimony with regard to journey to Canada contradictory.
The Federal Court
held that there was a reviewable error in the Panel's failure to attach
any credibility to the applicants' testimony. The Court held that:
"[T]he
panel clearly did not take into consideration the fact that the applicants
were ten and twelve years of age when they travelled to Canada and that
these two children clearly did not have to keep a log throughout their
travels. Furthermore, it was quite possible, and perhaps even likely
realistic, that both of the applicant could not precisely remember all
of the circumstances of the journey, which must have been very stressful
under the circumstances."
5.22 Comments made
by the Panel in another Canadian case are also apposite:
"I agree
that a claimant who is a child may have some difficulty recounting the
events which have led him or her to flee the country. Often the child
claimant's parents will not have shared distressing events with the
claimant, with the intention of protecting the child. As a result, the
child claimant, in testifying at his or her refugee hearing, may appear
to be vague and uninformed about important events which have led up
to acts of persecution. Before a trier of fact concludes that a child
is not credible, the child's sources of knowledge, his or her maturity,
and intelligence must be assessed. The severity of the persecution alleged
must be considered and whether past events have traumatized the child
and hindered his or her ability to recount details." [109]
Burden of proof
5.23 As the Appellants
were unaccompanied minors giving evidence without the assistance of a
guardian or a legal representative, the RRT should properly have assessed
their claims by adopting a liberal application of the principle of the
"benefit of the doubt". In not so doing, it failed to act in
accordance with the best interests of the Appellants and effectively cast
a burden of proof upon them which was inconsistent with the requirements
of the Convention.
5.24 The UNHCR's
1994 Guidelines provide that:
"The problem
of "proof" is very great in every refugee status determination.
It is compounded in the case of children. For this reason, the decision
on a child's refugee status calls for a liberal application of the benefit
of the doubt. This means that should there be some hesitation regarding
the credibility of the child's story, the burden is not on the child
to provide proof, but the child should be given the benefit of the doubt."
5.25 In the case
of adult asylum seekers, there has been recognition by the domestic legal
system of a similar principle. [110] For example, in
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs
Beaumont J commented that:
"As Grahl-Madsen
has noted (The Status of Refugees in International Law at 145-6), in
the proof of refugeehood, a liberal attitude on the part of the decision-maker
is called for, since it is a well-known fact that a person who claims
to be a refugee may have difficulties in proving his allegation (cf.
Gaudron J in Chan at 413); and it would go counter to the principle
of good faith in the interpretation and application of treaties if a
contracting state "should place on a suppliant a burden of proof
which he, in the nature of things, could not possibly cope with."
This should not, however, lead to "an uncritical acceptance of
any and all allegations made by suppliants."
An even more careful
application of this principle is required in the determination of applications
of unaccompanied children for protection visas.
Specific issues: Odhiambo
5.26 At the time
of the RRT hearing on 2 March 2001, this Appellant was 16 year of age
and required an interpreter to participate in the hearing. The RRT found
that the applicant had fabricated his claim of his origin in Sudan and
his claims of persecution [112] and, in reaching its
conclusion, placed "some weight" on a language analysis which
found that there were no traces of Dinka (the language the Appellant claims
was his mother tongue). [113]
5.27 The RRT's primary
reasons for rejecting the Appellants' claim appear to have been the Appellant's
vagueness and lack of local and geographical knowledge of Sudan and his
explanations of how he left Sudan (the RRT found that he had given several
different versions). [114] While the RRT stated that
it was cognizant that traumatic events, such as the claimed death of the
Appellant's father at the time he fled his country can affect the "behaviour
and memory of people" [115] he found against the
Appellant. In doing so, the RRT failed to give the applicant the benefit
of the doubt and effectively cast a burden of proof on this Appellant.
Specific issues: Martizi
5.28 At the time
of the RRT hearing on 2 March 2001, this Appellant was also 16 years of
age and required an interpreter to participate in the hearing. There were
essentially two reasons why the RRT was not satisfied that this Appellant
was a national of Rwanda: the evidence given by the Appellant (which the
RRT found was internally inconsistent as to where he was born and showed
a lack of familiarity with the region) [116] and a
language analysis which found that the Swahili spoken by this Appellant
bears no trace of the Swahili spoken in Rwanda. [117]
5.29 In relation
to the Appellant's lack of familiarity with the area he alleged was his
home region in Rwanda, the RRT accepted that this Appellant's young age
at the time he left this country may have caused his confusion. [118]
However, the RRT failed to give the Appellant the same benefit of the
doubt in relation to his confusion over his place of birth. While the
RRT noted that the Appellant's confusion in this respect may have been
because Mr Martizi was too young or too traumatized by events to know
where he was living as a child [119], these factors
were used to support a finding against the Appellant rather than as explaining
the deficiencies in this Appellant's evidence and entitling him to the
benefit of the doubt.
6. FEDERAL COURT PROCEEDINGS
Odhiambo
6.1 The trial judge
in the Odhiambo appeal was also obliged to ensure that the Court's proceedings
were conducted in accordance with the best interests of the Appellant
as a minor: the trial judge therefore erred in determining this Appellant's
application in circumstances where those obligations had not been met.
In particular, the trial judge should have ensured that this Appellant
had a guardian and the benefit of legal advice and representative for
the purposes of the proceedings.
6.2 This Appellant
did not have a guardian for his Federal Court appeal. As outlined in the
affidavits of Ms Katrina Kannis the WADFCS was not aware of the existence
of this Appellant until late February 2002. [120] There
was no representative of the WADFCS present at his hearing.
6.3 Nor did this
Appellant receive any legal advice or have the benefit of a legal representative.
Mr Odhiambo deposes in his affidavit to the fact that:
- his lawyer from
Macpherson and Kelley did not explain the RRT's decision to him - this
task was to some extent undertaken by other detainees at the PHIRPC;
[121]
- a detainee at
the PHIRPC assisted him to fill in his Notice of Appeal to the Federal
Court;[122]
- he received no
legal advice or assistance in relation to this appeal;[123]
and
- he appeared without
legal representation at the hearing before Justice Tamberlin on 8 August
2001. [124]
Martizi
6.4 The circumstances
of the Appellant Martizi vary from those noted above in one significant
respect, namely that he had pro bono counsel appearing for him before
the Court.
6.5 Whilst the Court
was courteously grateful for the assistance, [125]
counsel appears to have restricted his argument to the ground identified
in the notice of appeal [126] which was not sustainable.
Mr Martizi's affidavit of 4 March 2002 deals with his contact with counsel
at par 15. It does not provide any basis for confidence that adequate
assistance was obtained. Certainly no case was presented on the grounds
raised in this Court.
7. CONSEQUENCES OF ABSENCE
OF GUARDIAN
RRT proceedings: general
7.1 The next question
concerns the effect, for the purposes of these proceedings, of the absence
of a proper guardian to assist the Appellants. To consider this aspect
of the matter it is necessary to advert to the operation of s.476 of the
Migration Act, prior to its recent replacement. The relevant question
is whether the errors identified above and by the Appellants in their
Second Further Amended Notices of Appeal fall within one of the paragraphs
of sub-s.476(1), or whether they involve a breach of the rules of natural
justice, other than a procedural error identified in s.476(1)(a), which
would necessitate further proceedings in the High Court.
7.2 The role of a
guardian, and the obligation of a guardian to act in the best interests
of a minor, are principles which derive both from the Immigration (GOC)
Act, common law principles regarding the status of minors and, in
relation to the Federal Court, the exercise of its parens patriae
jurisdiction. Dealing only with the exercise of power by the RRT, the
problem may be identified as a failure on the part of the RRT to consider
and apply applicable legal principles to the facts before it. The relevant
factual findings included, for present purposes, the age of the Appellant
in each case.[127] In each case, the RRT made no finding
as to the actual age of the applicant before it, because, as it must be
inferred, it did not think that such a fact had any bearing on the conduct
of the review. If, as a matter of law, the Appellants were entitled to
the assistance of a properly appointed and involved guardian, neither
received his legal entitlements before the RRT. The failure of the RRT
to understand and apply that principle constituted an error of law within
the terms of s.476(1)(e).
7.3 It may be suggested
that such a failure constitutes no more than the failure to take into
account a relevant consideration in the exercise of the RRT's power. That
is an excluded ground of review, but only for the purposes of s.476(1)(d),
dealing with the ground identified as "improper exercise of the power
conferred by this Act". [128] However, as pointed
out by McHugh, Gummow and Hayne JJ in Minister for Immigration and
Multicultural Affairs v Yusuf [129] that limitation
does not prevent review for error of law, if the error otherwise falls
within par (e) of s.476(1). [130]
8. DISCRETIONARY FACTORS
8.1 There remains
a question as to whether the errors identified above should give rise
to relief in this Court in relation to the RRT decision in each case.
8.2 There are two
considerations of importance in thinking that relief should follow. The
first is that the failure to accord the Appellants the statutory protections
to which they were entitled is a breach of a fundamental human right.
The importance of the right may be identified by reference to the international
instruments discussed above at paragraphs 2.5 - 2.12.
8.3 Secondly, it
cannot be said in the present case that, had the Appellants had the assistance
to which they were entitled, there could have been no change to the outcome
of the review. These submissions have not sought to address the matters
particularised in paragraph 3 of the Second Further Amended Notices of
Appeal. However, the reliance by the RRT on the results of a language
analysis undertaken of an interview in Swahili which, it was common ground
that the Appellant Odhiambo had learned in Kenya, in order to demonstrate
that his origins were Kenyan is potentially a glaring mistake. It is the
kind of mistake that might well not have been made had the RRT been able
to establish a level of rapport which would have allowed it to communicate
with the young person on a basis of trust a circumstance which would have
been achieved had it had the benefit of submissions from a guardian who
had established that level of understanding and trust.
8.4 Closely analogous
problems in other areas of the law have given rise to judicial consideration
of the proper limits of police questioning of suspects. For example, the
so-called Anunga rules were devised to deal with the difficulties faced
by Aboriginal people in the Northern Territory; [131]
and see the principles established in Dixon v McCarthy in relation
to the police interrogation of young people in detention. [132]
Quite similar problems are identified by Ms Le Sueur in her affidavits
of 2 March 2002. [133]
9. FURTHER GROUNDS: ODHIAMBO
9.1 The matters identified
above constitute the primary concern of the Commission in this appeal.
The matters raised are those identified in paragraph 2 in the Further
Amended Notices of Appeal. Reference has been made to the use made by
the RRT of the linguistic analysis in relation to Swahili, which is separately
dealt with in paragraph 3 of the grounds. The Commission is content to
leave to the Appellant the further development of ground 3, in its own
right. However, the inter-relationship of ground 3 and ground 4 gives
rise to a further issue of concern to the Commission.
9.2 Ground 4 in substance
alleges that the RRT erred in failing to address the possibility that
Kenya might seek to repatriate the Appellant to Sudan, if he were returned
to Kenya.
9.3 The legal basis
of this ground may be briefly identified. It involves two limbs. First,
it is well established that Australia will contravene its protection obligations
under the Convention if it returns a person to a safe third country, but
there is a real risk that that country will return the person to a country
of former habitual residence or nationality, where he or she may suffer
persecution. The principle was clearly stated in R v Secretary of State
for the Home Department; Ex parte Bugdaycay [134]
and applied in Nguyen Tuan Cuong v Director of Immigration. [135]
The principle was established in Australian law in Minister for Immigration
and Multicultural Affairs v Thiyagarajah. [136]
9.4 The second issue
is whether the RRT erred in failing to consider this principle, once it
was "satisfied" that the Appellant was a national of Kenya.[137]
The error in this regard may be put in two ways: first, it is reasonably
clear that the RRT did not apply the "real chance" test in relation
to this matter. It approached the question of nationality as a matter
upon which it had to be 'satisfied', presumably on the balance of probabilities.
Accordingly, it never asked itself the critical question as to whether
he had a well-founded fear of persecution in Sudan, based on a real chance
that he might be returned there by Kenyan authorities. As the Full Court
noted in Thiyagarajah, in relation to Bugdaycay: [138]
"A decision
to deport Mr Musisi was quashed by the House of Lords only because the
Home Secretary had not given proper consideration to whether a danger
existed that Kenya would return him to Uganda, a course which would
effect indirectly what Article 33 prohibited."
9.5 The matter can
be put in a second way, namely that in the circumstances of the case,
which was decided on satisfaction as to his nationality alone, the RRT
should in law have asked itself "What if I am wrong?". As noted
by Sackville J in Minister for Immigration and Multicultural Affairs
v Rajalingham [139] the "what if I am wrong?"
terminology, properly understood, is merely another means of stating the
well-founded fear test in the Convention. The relevant principle, summarised
by his Honour, after discussing the High Court judgments in Minister
for Immigration and Ethnic Affairs v Guo Wei Rong [140]
concluded, relevantly:
"It can
be seen from this passage that if the RRT finds that it is only slightly
more probably than not that an alleged relevant event has not occurred,
it must take into account the chance that it did occur when determining
whether there was a well founded fear of persecution. It is clear that
the comment in the joint judgment is not confined to a past event (as
in Wu Shan Liang) involving persons other than the applicant."
The principle may
be said to apply a fortiori in circumstances where it is not a past event,
but the very nationality of the applicant himself which is at stake. As
his Honour noted, the failure to engage in reasonable speculation in such
circumstances will constitute an error of law within s.476(1)(e). [141]
9.6 That the RRT
did not engage in reasonable speculation in the present case is clear;
the only question is whether it should have done so. For the reasons noted,
it should have adopted that course, a conclusion which is strengthened
by reference to the principles in relation to the assessment of claims
brought by children referred to paragraphs 5.19 - 5.29 above.
10. FURTHER GROUNDS: MARTIZI
10.1 The position
adopted by the RRT in relation to Rwanda gives rise to similar issues
as that adopted in relation to Mr Odhiambo. However, there are a number
of divergences.
10.2 First, the RRT
sought to determine the nationality of Mr Martizi, an essential step in
applying to him the tests involved in Article 1A(2) of the Convention.
The RRT was "unable to be satisfied that Mr Martizi is a national
of Rwanda." [142] The RRT further held: [143]
"The evidence
has been so contradictory and vague on this issue that I cannot be satisfied
that he is a national of Rwanda."
Nor was the RRT satisfied
that he was a national of any other country.
10.3 The RRT gave
consideration to the possibility that, if he were returned to Rwanda or
the Democratic Republic of Congo, he might face Convention based persecution.
However, with due respect to the RRT's consideration of the matter [144]
it does not constitute the kind of "reasonable speculation"
required by the Convention but rather falls within the kind of dismissal
of a claim, already considered and dismissed on other grounds, that is
little more than an unconsidered dictum. It would not preclude an order
in the nature of mandamus to complete and uncompleted inquiry. [145]
The consideration given to the country information was, at best, brief:
the consideration given to the specific claims made by the Appellant was
non-existent. Similarly, there was no attention given to the position
of the Appellant as an unaccompanied minor, if returned to Rwanda.
10.4 On one view,
the manner in which the RRT dealt with this case might be said to demonstrate
in stark terms the importance of ensuring that minors have the assistance
of guardians in the presentation of their visa applications. Relevantly
for present purposes, and taking into account the principles identified
in paragraphs 5.19 - 5.29 above, the RRT failed to give genuine, realistic
and proper consideration to the matters relevant to its exercise of power.
As noted in the joint judgment in Minister for Immigration and Multicultural
Affairs v Yusuf: [146]
"If the
Tribunal, confronted by claims of past persecution, does not make findings
about those claims, the statement of its reasons and findings on material
questions of fact may well reveal error. The error in such a case will
most likely be either an error of law (being an erroneous understanding
of what constitutes a well founded fear of persecution) or a failure
to take account of relevant considerations (whether acts of persecution
have occurred in the past)."
As their Honours
further noted, failure to consider such matters may demonstrate that the
decision-maker has failed properly to apply the law, [147]
and, if properly so construed, s.476(3) will not stand in the way of relief.
[148]
Dated: 15 April 2002
1. Statutory
Rules 1946, number 195.
2. Statutory
Rules 2001, number 238; the repeal effected by reg.18 lists each of the
previous statutory rules creating and amending the Immigration (GOC) Regulations
of 1946.
3. The
relevant Child Welfare Act is now the Child Welfare Act 1947 (WA) although
the 1946 Regulations appear not to have been amended to take account of
replacement of the earlier Child Welfare Acts.
4. See
Reprint No. 8 at pp.496 and 502.
5.See
Schedule 1, item 8(2) at Reprint 8, pp.573-574.
9. Leroux
v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis
(1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners' Association
(1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also
Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127.
10. Murray
v Charming Betsy (1804) 2 Cranch 64, 118; also United States v Fisher
(1805) 2 Cranch 390.
11. Chu
Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
12. Dietrich
v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; Minister
for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105
at pars 142-144 (Kirby J), and also Minister for Foreign Affairs and Trade
v Magno (1992) 112 ALR 529 at 534 per Gummow J.
13. (1995)
183 CLR 273 at 287-8.
14. Minister
for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per
Mason CJ and Deane J; also Kartinyeri v Commonwealth (1998) 195 CLR 337
at 384 per Gummow and Hayne JJ. Generally A Simpson & G Williams,
"International Law and Constitutional Interpretation" (2000)
11 Public Law Review 205 at 208; J Spigelman, "Access to Justice
and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.
15. Dietrich
v The Queen (1992) 177 CLR 292 at 319 per Brennan J.
16. The
Hon Murray Gleeson AC, Boyer Lectures 2000: The Rule of Law and The Constitution
(ABC Books 2000) at 129; The Hon Michael McHugh, "The Law Making
Function of the Judicial Process" (1988) 62 Australian Law Journal
15, 116.
17. Mabo
v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason
CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 306-07
per Mason CJ and McHugh J, at 319-321 per Brennan J, at 360 per Toohey
J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993)
178 CLR 477 at 499 per Mason CJ and Toohey J; Minister for Immigration
and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288-289 per Mason CJ and
Deane J.
18. Ballina
Shire Council v Ringland (1994) 33 NSWLR 680 at 687-88 per Gleeson CJ,
at 699, 709-710 per Kirby P.
19. Dietrich
v The Queen (1992) 177 CLR 292 at 321 per Brennan J.
20. Minister
of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR
273 at 289 per Mason CJ and Deane J. See also Minister for Foreign Affairs
and Trade v Magno (1992) 37 FCR 298 at 343 and Tavita v Minister for Immigration
(1994) 2 NZLR 257 at 266.
21. Mabo
v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason
CJ and McHugh J agreed).
22. Article
3(1): In all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration.
23. Article
12(1): States Parties shall assure to the child who is capable of forming
his or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child. Article 12(2): For
this purpose, the child shall in particular be provided the opportunity
to he heard in any judicial and administrative proceedings affecting the
child, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
24. Article
20(1): A child temporarily or permanently deprived of his or her family
environment
shall be entitled to special protection and assistance
provided by the State. Article 22(1): State Parties shall take appropriate
measures to ensure that a child who is seeking refugee status
shall,
whether unaccompanied or accompanied by his or her parents or by any other
person, receive appropriate protection and humanitarian assistance in
the enjoyment of applicable rights set forth in the present Convention
and in other international human rights or humanitarian instruments to
which the said States are parties.
25. Article
37(d): Every child deprived of his or her liberty shall have the right
to prompt access to legal and other appropriate assistance, as well as
the right to challenge the legality of the deprivation of his or her liberty
before a court or other competent, independent and impartial authority,
and to a prompt decision on any such action.
27. Along
with articles 2, 6 and 12 of the CROC: see General Guidelines Regarding
the Form and Contents of Periodic Reports to be Submitted by States Partes
under Article 44, paragraph 1(B), of the Convention, adopted by the Committee
on the Rights of the Child at its 343rd meeting (thirteenth session) on
11 October 1996.
28. Principle
2: The child shall enjoy special protection, and shall be given opportunity
and facilities, by law and by other means, to enable him to develop physically,
mentally, morally, spiritually and socially in a health and normal manner
and in conditions of freedom and dignity. In the enactment of laws for
this purpose, the best interests of the child shall be the paramount consideration.
29. Article
3 makes it clear that the best interests of the child need only be a rather
than the primary consideration: G Van Bueren, The International Law on
the Rights of the Child, 1995, Martinus Nijhoff Publishers, London, at
page 46; Minister of State of Immigration and Ethnic Affairs v Ah Hin
Teoh, (1995) 183 CLR 273 per Mason CJ and Deane J at 289.
31. In
particular, see the decisions of Mason CJ and Deane J at page 289.
32. General
Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted
by States Partes under Article 44, paragraph 1(B), of the Convention,
adopted by the Committee on the Rights of the Child at its 343rd meeting
(thirteenth session) on 11 October 1996.
33. Article
43 of the CROC establishes a Committee on the Rights of the Child to examine
the progress made by States Parties in achieving the realization of the
obligations undertaken in the CROC. This Committee is made up of "ten
experts of high moral standing and recognized competence" in the
field covered by the Convention.
34. R
Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, 1998, Atar SA, Geneva, at 145.
35. An
"unaccompanied child" is a person who is under the age of eighteen
who is separated from both parents and is not being cared for by an adult
who by law or custom has responsibility to do so: Office of the United
Nations High Commissioner for Refugees, Guidelines on Policies and Procedures
in dealing with Unaccompanied Children Seeking Asylum, February 1997,
paragraph 3.1.
36. See
also article 3(2) of the CROC which provides: State parties undertake
to ensure the child such protection and care as is necessary for his or
her well-being, taking into account the rights and duties of his or her
parents, legal guardians, or other individuals legally responsible for
him or her, and to this end, shall take all appropriate legislative and
administrative measures.
37. For
example see Conclusions on the International Protection of Refugees, adopted
by the UNHCR Executive Committee, No 47 (XXXVIII), "Refugee Children",
1987 where the Executive Committee highlighted the special vulnerability
of unaccompanied children and children separated from their parents. On
26 June 1997, the Council of the European Union passed a Resolution on
"Unaccompanied Minors who are Nationals of Third Countries",
Official Journal C 221, 19 July.1997, at 23-27. See also the UNHCR and
the International Save the Children Alliance in Europe, Separated Children
in Europe Program, "Statement of Good Practice", October 2000.
In addition, many countries have adopted special procedures and rules
of evidence when determining the applications of unaccompanied children
seeking refugee status. In Canada, Guidelines entitled "Child Refugee
Claimants: Procedural and Evidentiary Issues" have been issued by
the Chairperson of the Immigration and Refugee Board pursuant to s.65(3)
of the Immigration Act, as enacted by the RSC, 1985 (4th Supp), c 28.
In the United States of America, the Immigration and Naturalization Service
has issued "Guidelines for Children's Asylum Claims". Since
1 October 1994, the United Kingdom has special rules in relation to child
asylum seekers: see Immigration Rule on Child Asylum Seekers (HC 395)
and has developed guidelines to assist in the application of this Rule:
Chapter 2, Section 5 of the Guidelines on Asylum Applications. The New
Zealand Immigration Service also has a special section in their Refugee
Policy on "Claims for Refugee Status by Minors".
38. Paragraph
5.7 of the UNHCR 1997 Guidelines. See also article 3(4) and (5) of the
Council of the European Union, Resolution of 26 June 1997 on "Unaccompanied
Minors who are Nationals of Third Countries".
39. The
UNHCR's "Policy on Refugee Children" issued in 1993 points out
"that governmental action relating to children must be tailored to
the different needs and potentials of refugee children". The UNHCR's
1997 Guidelines emphasise that this principle should apply to all children,
including those between sixteen and eighteen, even where application for
refugee status is processed under the normal procedures for adults: paragraph
8.3.
40. UNHCR's
1994 Guidelines; paragraph 8.1 and 8.5 of the UNHCR's 1997 Guidelines.
The 1994 Guidelines emphasise that "[k]eeping children in limbo regarding
their status, hence their security and future, can be harmful to them".
See also article 4(2) of the Council of the European Union, Resolution
of 26 June 1997 on "Unaccompanied Minors who are Nationals of Third
Countries".
41. The
UNHCR's 1994 Guidelines; paragraph 8.3 of the UNHCR's 1997 Guidelines.
42. The
UNHCR's 1994 Guidelines provide that: "a legal representative
should be appointed immediately to ensure that the interests of an applicant
for refuge status who is a minor are fully safeguarded"; paragraphs
4.2 and 8.3 of the UNHCR's 1997 Guidelines. See also article 3(5) of the
Council of the European Union, Resolution of 26 June 1997 on "Unaccompanied
Minors who are Nationals of Third Countries". The Committee on the
Rights of the Child has advised, in relation to the Initial Report Concluding
Observations for Panama, that article 3 of the CROC will be satisfied
where "[p]rocedures [are] developed in cooperation with UNHCR in
order to
appoint legal representatives for unaccompanied children
": CRC/C/15/Add.68, at paragraph 34.
43. The
UNHCR's 1994 Guidelines which provide that: "[u]ncertainty leads
to unnecessary anxiety, and if not accurately informed, a minor will be
all the more receptive to rumours and bad advice, and may form unrealistic
expectations and as a consequence, be more likely to falsify information".
44. A
"non-citizen child" is defined in s.4AA(1) of the Immigration
(GOC) Act as child who has not turned 18, enters Australia as a non-citizen
and intends, or is intended, to become a permanent resident of Australia.
45. X
v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524
and X v Minister for Immigration & Multicultural Affairs [2000] FCA
704 (29 May 2000).
46. X
v Minister for Immigration & Multicultural Affairs [2000] FCA 704
(29 May 2000), at par 13.
47. X
v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524
at par 43.
48. Ibid.
Article 18(1) of the CROC provides that: State parties shall use their
best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the
child. Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The best
interest of the child will be their basic concern.
49. Pursuant
to s.6 of the Immigration (GOC) Act and s.39(1A)(c) of the Judiciary Act
1903 (Cth): X v Minister for Immigration and Multicultural Affairs, (1999)
92 FCR 524, at par 79; Jaffari v Minister for Immigration and Multicultural
Affairs [2001] FCA 985 (26 July 2001), at par 16.
50. (1976)
28 FLR 427 (Blackburn J).
51. (1995)
36 NSWLR 477 (Brownie J).
54. (1992)
176 CLR 408 at 411 per Mason CJ, Deane and Toohey JJ. See also Johnson
v Department of Community Services [1999] NSWSC 1156 (2 December 1999).
55. See
Lowe and White, Wards of Court, Butterworth's, 1979, p.206-209.
56. See
Family Law Act, s.65A.
57. See
Schedule 2 to that Act.
58 One
of the significant changes brought about the Family Law Act and the 1995
reforms was to replace the language of "rights" in relation
to children with reference to "responsibilities".
59.The
list in the Schedule to the delegation contains 58 positions but one,
identified in relation to Victoria as "Managers, Youth and Family
Services", may cover a number of individuals.
61. See
Child Welfare Act 1947 (WA) in relation to a "child in need of care
and protection" - see ss.4, 29 and 30. Such children are defined
as "wards" (s.4(2)) and their "care, management and control"
is vested in the Director-General: s.10(1).
62. See
now reg.7 of the 2001 Regulations.
63. That
provision may be valid, if it constitutes a prescribed exception for the
purposes of s.8 of the Immigration (GOC) Act.
64. This
matter is raised by paragraph 2(b)(ii) of the Second Further Amended Notices
of Appeal.
65. Constitution,
s.51(xxvii); see also placitum (xxxix).
66. The
Queen v Director-General of Social Welfare (Victoria); Ex parte Henry
(1975) 133 CLR 369.
67. See
Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163
CLR 117 at 128.3, and see Printz v United States 521 U.S. 898, 904-922
(1997).
68. Melbourne
Corporation v The Commonwealth (1947) 74 CLR 31, 60.8 (Latham CJ).
70. (1983)
158 CLR 1 at 215-216: see also Queensland Electricity Commission v The
Commonwealth (1985) 159 CLR 192 at 213 (Mason J) and Re Australian Education
Union; Ex parte Victoria (1994-95) 184 CLR 188 at 226-227 (Mason CJ, Brennan,
Deane, Dawson, Toohey, Gaudron and McHugh JJ).
71. X
v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524
at par 62; UNHCR Executive Committee, No 47 (XXXVIII), "Refugee Children",
1987.
72. Committee
on the Rights of the Child, Report on the Seventh Session, November 1994,
CRC/C/34, at 61.
73. The
UNHCR's 1997 Guidelines, paragraph 1.3.
74. Paragraph
4.2 of these submissions.
75. See
Affidavits of Ms Kannis sworn on 1 March 2002, par 35.
76. See
Affidavits of Ms Kannis sworn on 1 March 2002, par 36.
77. See
the transcript of his RRT hearing attached to the Affidavit of Ms Natalie
Sheard affirmed on 12 April 2002.
78. See
the transcript of his RRT hearing attached to the Affidavit of Ms Natalie
Sheard affirmed on 12 April 2002.
79. Affidavit
of Peter Martizi sworn on 4 March 2002, par 9; Affidavit of Simon Odhiambo
sworn on 4 March 2002, par 13.
80. Affidavit
of Peter Martizi sworn on 4 March 2002, par 19; Affidavit of Simon Odhiambo
sworn on 4 March 2002, par 17.
81. See
Migration Regulations 1994 (Cth), Schedule 2, sub-class 030 - Bridging
C.
82. Regulations,
Schedule 2, clause 051.211.
83. See
X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524
at par 13 (North J).
84. Affidavits
of Ms Kannis sworn on 1 March 2002, par 4.
86. Affidavits
of Ms Kannis sworn on 1 March 2002, pars 5 - 9.
90. See
Affidavit of Simon Odhiambo sworn on 4 March 2002.
91. Affidavit
of Peter Martizi sworn on 4 March 2002, par 5.
95. Carltona
Ltd v Commissioner of Works [1943] 2 All ER 560.
96. See
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR
25 at 38.1.
97. See
also Ozmanian v Minister for Immigration, Local Government and Ethnic
Affairs (1996) 137 ALR 103 at 121 (Merkel J) dealing with the power of
the Minister under s.417 of the Migration Act. See also Norvill v Chapman
(1995) 133 ALR 226 in relation to a power conferred on the Minister for
Aboriginal Affairs for the preservation of Aboriginal heritage sites and
Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia
(1996) 149 ALR 78, 98-100 (Black CJ).
98. See
X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524
at par 13 (North J).
102. (1992)
176 CLR 408 at 411.
103. X
v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524
at par 62.
105. See
particularly pars 27-31.
106. The
UNHCR's 1997 Guidelines, paragraph 8.6.
108. Judgment
of Blais J, 18 June 1999, Docket No. IMM-2949-98.
109. The
primary decision maker on applications for refugee status.
110. CRDD
Panel in V92-00501, Burdett, Brisco, April, 1993.
111. The
UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status,
1979 states that: After the applicant has made a genuine effort to substantiate
his story there may still be a lack of evidence for some of his statements.
As explained above
it is hardly possible for a refugee to 'prove'
every part of his case, and indeed, if this were a requirement the majority
of refugees would not be recognized. It is therefore frequently necessary
to give the applicant the benefit of the doubt. The benefit of the doubt
should, however, only be given when all available evidence has been obtained
and checked and when the examiner is satisfied as to the applicant's general
credibility. The applicant's statement must be coherent and plausible,
and must not run counter to generally known facts.
112. (1994)
124 ALR 265 at par 2. See also Abebe v Commonwealth (1999) 197 CLR 510
at 544- 545; In administrative decision making, the concept of burden
of proof is generally inappropriate: Minister for Immigration and Ethnic
Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Minister for Immigration
and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at pars 143-146.
121. Affidavits
of Ms Kannis sworn on 1 March 2002, par 5.
122. Affidavit
of Simon Odhiambo sworn on 4 March 2002, par 16; Affidavit of Al-Siddiq
Abdullah Adam Mohammad sworn on 2 March 2002, pars 3 and 4.
123. Affidavit
of Simon Odhiambo sworn on 4 March 2002, par 17; Affidavit of Al-Siddiq
Abdullah Adam Mohammad sworn on 2 March 2002, par 3.
124. Affidavit
of Simon Odhiambo sworn on 4 March 2002, par 17.
126. Judgment
par 11 at AB 181.
128. In
the case of Simon Odhiambo, the Tribunal noted his claim at AB 124, par
15 to be a 16 year old; he does not make any express finding accepting
or rejecting the claims in that regard. Similarly, the Tribunal noted
that Mr Martizi claimed to be "an unaccompanied minor" (AB 155.2)
without making any finding in the regard.
130. (2001)
75 ALJR 1105 at par 84.
131. See
also Gleeson CJ at par 1 (agreeing with the joint judgment) and at par
7; see also Gaudron J at pars 36-38; Kirby J and Callinan J not addressing
the issue.
132. See
R v Anunga; R v Wheeler (1976) 11 ALR 412 (Foster J); see Also R v Williams
(1976) 14 SASR 1 (Wells J).
133. (1975)
1 NSWLR 617 at 635: provision was promptly made by legislation in that
jurisdiction - see Child Welfare (Amendment) Act 1977 and Child Welfare
(Further Amendment) Act 1977 (NSW) introducing s.81C into the Child Welfare
Act.
137. (1998)
80 FCR 543 at 558 ff (von Doussa J, Moore and Sackville JJ agreeing).
140. (1999)
93 FCR 220 at par 63.
141. (1997)
191 CLR 559, at 93 FCR pars 51-55.
144. AB
174.8. In a
single paragraph at AB 175-176.
145. See
Wade v Burns (1966) 115 CLR 537 at 555.7 (Barwick CJ) and 562-563 (Menzies
J, Taylor J agreeing).
146. (2001)
75 ALJR 1105 at par 75 (McHugh, Gummow and Hayne JJ).
Last
updated 26 April 2002.