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Federal Court of Australia - Full Court Decisions |
Last Updated: 21 June 2002
IMMIGRATION - refugee claims by two unaccompanied minors - Effect of legislation appointing Minister as guardian of unaccompanied minors - Legal assistance and advice provided to appellants in connection with claims for protection visas - No active representation of minors at Refugee Review Tribunal hearings - Whether Tribunal erred in proceeding to hear and determine application for review - Use by Tribunal of linguistic analyses - Risk of refoulement - Statelessness.
Migration Act 1958 ss 420, 424A, 425, 425A, 476
Immigration (Guardianship of Children) Act 1946 ss 4, 4AAA, 4, 5, 7
X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; 92 FCR 524 discussed
Haines v Leves (1987) 8 NSWLR 442 referred to
Re adoption of S (1976) 28 FLR 427 referred to
Re Application of K (1995) 36 NSWLR 477 referred to
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 referred to
ACCC v World Netsafe [2002] FCA 526 referred to
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
referred to
Bugdaycay v Secretary of State [1986] UKHL 3; [1987] AC 514 referred to
Nguyen Tuan Cuong v Director of Immigration [1996] UKPC 43; [1997] 1 WLR 68 referred to
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543
referred to
SIMON ODHIAMBO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W373 of 2001
PETER MARTIZI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W378 of 2001
BLACK CJ, WILCOX and MOORE JJ
20 JUNE 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
|
BETWEEN: |
SIMON ODHIAMBO APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
BLACK CJ, WILCOX and MOORE JJ |
DATE OF ORDER: |
20 JUNE 2002 |
WHERE MADE: |
SYDNEY |
1. The appeal be dismissed.
2. The appellant pay the respondent his costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
W378 OF 2001 |
BETWEEN: |
PETER MARTIZI APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
BLACK CJ, WILCOX and MOORE JJ |
DATE OF ORDER: |
20 JUNE 2002 |
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
3. The appeal be dismissed.
4. The appellant pay the respondent his costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
|
BETWEEN: |
SIMON ODHIAMBO APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
W378 OF 2001 |
BETWEEN: |
PETER MARTIZI APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
BLACK CJ, WILCOX and MOORE JJ |
DATE: |
20 JUNE 2002 |
PLACE: |
SYDNEY (HEARD WITH VIDEO-LINK TO PERTH) |
THE COURT:
1 These reasons relate to two appeals against decisions of single judges of the Court dismissing applications to review decisions of the Refugee Review Tribunal ("the Tribunal"). The appeals were heard together; the reason being that they raise an important common issue, the position of an unaccompanied minor who seeks recognition as a refugee and pursues remedies in the Tribunal and this Court.
Odhiambo's case
(i) Background
2 Simon Odhiambo claims to have been born on 26 March 1984 in Sudan. He said he came from a Christian family and, when he was about 11 years old, his father was killed by Islamic militants. He told the Tribunal (and earlier interviewers) that he fled, with a friend, and made his way to Kenya. He spent some time in Nairobi and then went to Mombasa. In both cities he lived on the streets. His friend was gaoled in Kenya as an illegal foreigner. He left Kenya by stowing away on a ship, New Assurance, departing Mombasa. Apparently five other people (including the other appellant, Peter Martizi) stowed away on the ship at the same time.
3 Three days after the ship left Mombasa, the six stowaways were detected by the crew. They were held until the ship arrived in Geelong, on 13 May 2000. Since that date Mr Odhiambo has been held in immigration detention. Initially he was held at Maribyrnong, in Victoria, but, after a few days, he was transferred to Port Hedland, in Western Australia. So far as we are aware, he is still there.
(ii) The application for a protection visa
4 On 17 June 2000 Mr Odhiambo applied, under the Migration Act 1958 and Migration Regulations, for a protection visa. Such a visa is available only to people who are adjudged to be refugees within the meaning of the 1951 Convention relating to the Status of Refugees, as affected by the 1967 Protocol relating to the Status of Refugees (collectively "the Refugees' Convention").
5 Mr Odhiambo's protection visa application, and a supporting statement, were prepared with the assistance of a registered migration agent associated with a Victorian firm of solicitors, Macpherson & Kelley. That assistance was provided by the Department of Immigration and Multicultural Affairs under its Immigration Advice and Application Assistance Scheme.
6 In his application Mr Odhiambo claimed that, if he returned to Sudan, he would be killed by Muslim groups because he was a Christian.
7 On 8 February 2001 a delegate of the Minister for Immigration and Multicultural Affairs (the respondent to these two appeals) refused the application for a protection visa. Mr Odhiambo applied to the Tribunal for review of that decision. His application for review was signed by Michael Thornton, a partner in Macpherson & Kelley.
8 The application for review was heard by a Tribunal member, Roger Gibson. Mr Gibson conducted the hearing by a video-link to the hearing room at Port Hedland detention centre, where Mr Odhiambo was located. Gary Dell-Bray, an officer of the Western Australian Department of Family and Children's Services, was also in the hearing room. Mr Dell-Bray had apparently been informed of the hearing by an officer of the Department of Immigration and Multicultural Affairs, on account of the fact that Mr Odhiambo was believed to be only 17 years of age. However, Mr Dell-Bray did not meet Mr Odhiambo prior to the hearing; the two people were introduced over the video-link by Mr Gibson at the commencement of the hearing. Mr Dell-Bray played no substantial role in the hearing.
9 Mr Gibson interviewed Mr Odhiambo with the assistance of an interpreter. Apparently Mr Odhiambo spoke in Swahili. Mr Gibson also had the benefit of a lengthy submission prepared by Macpherson & Kelley, that was faxed to the Tribunal immediately before the hearing.
10 Shortly after the hearing, on 6 April 2001, the Tribunal wrote a letter to Mr Odhiambo inviting comment on a linguistic analysis of his speech. Presumably this was done in purported satisfaction of the requirements of s 424A of the Migration Act. The letter read:
"The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa.The information is as follows:
You have claimed to be a national of Sudan, a Dinka and a Christian. A language analysis of your taped interview with the Delegate of 7 July 2000 was conducted by the agency Eqvator. A report of 28 November 2000 of the language analyst's conclusions was provided. It states your claims to be a Dinka Sudanese born in the Kanyaboli Juba area of southern Sudan is not supported by the language analysis, that you speak plain Swahili with no trace of Dinka influence, that your pronunciation of a number of words is characteristics [sic] of Bantu languages of East Africa such as Kenya and Uganda, that your speech is most certainly the Kenyan coast variety of Swahili found in the area around Mombasa, and your speech originates most likely from Kenya. The report indicates that you are not Sudanese by your language.
This information is relevant because it could suggest that you do not have a Sudanese background and were not born in Sudan.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 13 April 2001."
11 Mr Odhiambo responded with a short letter seeking another interview in which he could "analytically prove" himself. Mr Thornton also wrote on his behalf. He stated that Mr Odhiambo had left Sudan at a young age. He said:
"Our client lived in Mombassa [sic] for five years without any family. He roamed the streets with other street boys looking for food. This is where he learned to speak Swahili. He learned the language easily because he was young, and because he had no choice because no one he met spoke Dinka. Our client may have picked up a Kenyan accent from the street boys whose company he kept.Due to his arrival in Kenya at such a young age, the fact that he lived on the streets of Kenya for five years, and the fact that this is where he learned to speak Swahili, we submit that it is more likely than not that our client would also speak this language with a Kenyan accent. We therefore submit that the Department's analysis cannot be regarded as conclusive evidence that the applicant is not a Sudanese national.
We ask that you treat the expert opinion you have received with caution as in our submission there is insufficient evidence available at present to show that such assessments are reliable. We request that you consider such things as the formal qualifications of your experts and when they last resided in the country in question. Any long absence from a country of origin would probably seriously discredit an opinion. It is a given fact that languages and dialects do not remain static, but can and do change and evolve, even over a short period of time."
(iii) The Tribunal's decision
12 Mr Gibson did not conduct a further interview. On 2 May 2001 he made a decision affirming the delegate's refusal to grant a protection visa. Fundamental to his decision was that he was not persuaded Mr Odhiambo was Sudanese. He found he "is a national of Kenya, albeit one without any documentation".
13 Mr Gibson gave two reasons for this conclusion. First, he detected discrepancies between accounts given by Mr Odhiambo concerning three matters: his place of residence in Sudan, the languages he there used and his flight from Sudan into Kenya. Mr Gibson said:
"I am cognisant of the fact that the applicant claimed to have been young when he left Sudan, either 10, 11, 12 or 13 years, depending on which version is taken. I am also aware that traumatic events, such as the claimed death of the father, can affect the behaviour and memory of people. However, the applicant's vagueness and lack of local and geographical knowledge of Sudan, the several different versions of how he left Sudan and arrived in Kenya, and the disavowal of now knowing the language Dinka, his mother tongue, leads me to conclude that I am unable to accept that the applicant has been entirely truthful about his origins."
14 Mr Gibson's second reason was the linguistic analysis. He said:
"I am supported in this conclusion by the linguistic analysis of the applicant's speech. According to the linguist from Sudan, the applicant speaks plain Swahili with no traces of Dinka influence. No single Dinka word was observed during the conversation. The sort of pronunciation by the applicant had the characteristics of Bantu languages of East Africa such as Kenya and Uganda. The analyst believed that the applicant was not Sudanese by his language ... The second analyst, an East African linguist by profession, and very familiar with the coastal languages and dialects of East Africa, stated that the applicant spoke Swahili fluently, almost as his mother tongue, that is, he had grown up in a native coastal Swahili environment and that he spoke, most certainly, the Kenya coastal variety of Swahili found in and around Mombasa ...".
15 Mr Gibson noted that Mr Odhiambo claims to have been "separated from his Dinka-speaking milieu when he was 11 or 12 years old, and has not been with Dinka-speaking people, except his friend from his village". However, he commented, "he claims to be only 17 or 18 years old now, and I consider it surprising that enough time has passed for him to have lost all trace of Dinka in his Swahili, or to have forgotten the language as he claims".
(iv) The application for judicial review
16 Mr Odhiambo sought judicial review of the Tribunal's decision pursuant to Part 8 of the Migration Act, as it stood before the extensive amendments that took effect on 2 October 2001. Mr Odhiambo himself prepared the application, which was faxed from Port Hedland to the Western Australian District Registry of the Court. The Application did not reveal any ground of review falling within s 476 of the Act, as it then stood.
17 The application for review came before Tamberlin J, in Perth, on 8 August 2001. Mr Odhiambo represented himself, appearing by video-link from Port Hedland detention centre. Mr Odhiambo made apparent to Tamberlin J that he took issue with the Tribunal's finding on nationality. He told the judge he is not a liar, that he knows he came from Sudan and that there had been a serious error in the conclusion reached by the Tribunal. However, it seems Mr Odhiambo made no submission as to any ground of review falling within s 476 of the Act.
18 Notwithstanding this omission, and of his own motion, Tamberlin J considered whether the Tribunal had been entitled to take into account the linguistic analysis. He held it had been and concluded there had been no "error in principle or law which would warrant judicial review in this case". Accordingly, he dismissed the application with costs.
19 It seems that, at the hearing before Tamberlin J, no reference was made to the fact that Mr Odhiambo was apparently still a minor. If the birth date of 26 March 1984 is correct, he was only 17 years old.
Martizi's case
(i) Background
20 Peter Martizi says he was born in Rwanda on 6 April 1984 and is ethnically Hutu. He claimed to have lived in Rwanda until August 1995. He said that, in 1990 when he was about six years old, Tutsis came to his village, burned down his family home and killed his parents. At the time, he and his sister were with their grandmother. They remained with her after their parents' death, living in Goma until the grandmother's death, in 1995. At that time Tutsis were approaching Goma, so they fled to Mozambique where Mr Martizi and his sister became separated. Mr Martizi claimed to have had no contact with her since then.
21 Mr Martizi said he made his way to Kenya where he lived on the streets and begged for food. In April 2000 he stowed away on the New Assurance and came to Australia. He was detained, first at Maribyrnong and then at Port Hedland.
(ii) The application for a protection visa
22 On 13 May 2000, the day of his arrival in Australia, Mr Martizi applied for a protection visa. In doing so, he had the assistance of a migration agent associated with Macpherson & Kelley. However, the application was refused, on 12 February 2001, by a delegate of the Minister.
23 Mr Martizi applied for review of the decision by the Tribunal. His application was prepared by Macpherson & Kelley.
24 The application for review was assigned to a member, Philippa McIntosh. On 2 March 2001, with the assistance of an interpreter, she conducted a hearing by video-link to Port Hedland detention centre. The hearing was attended by Mr Dell-Bray who arrived, and met Mr Martizi for the first time, only after the hearing commenced. Mr Dell-Bray played no active part in the hearing. However, Ms McIntosh had the benefit of detailed written submissions prepared on behalf of Mr Martizi by Macpherson & Kelley.
25 On 28 March 2001, after the hearing but before the Tribunal's decision, the Tribunal wrote to Mr Martizi referring to a language analysis from Eqvator that "states that your Swahili accent and vocabulary could with reasonable certainty be said to originate from the southern coast of Kenya, and there are no dialect features in your speech which belong specifically to the Swahili language used in Rwanda". The Tribunal invited comment. This was provided by Macpherson & Kelley in a letter dated 2 April 2001.
(iii) The Tribunal's decision
26 On 4 April 2001 Ms McIntosh made the Tribunal's decision. She was not satisfied that Mr Martizi was Rwandan. She gave several reasons. First, she noted that the only basis for Mr Martizi's belief that he was born in Rwanda is that he was told this by his grandmother, now deceased; he had no passport or other documentation from Rwandan authorities. Second, Ms McIntosh noted confused and inconsistent statements by Mr Martizi. At one stage he said he was born in Goma, which is in the Democratic Republic of the Congo, not Rwanda. Finally, Ms McIntosh was influenced by the linguistic analysis.
27 Ms McIntosh noted Mr Martizi has never claimed to be Kenyan. She said she could not be satisfied that he was. Ms McIntosh also considered whether Mr Martizi was a citizen of the Democratic Republic of the Congo, but she concluded she also could not be satisfied about that. Finally, she found that, even if Mr Martizi was Rwandan, and a Hutu as claimed, having regard to the current situation in Rwanda, there would be only a remote chance he would be persecuted on that account.
28 The Tribunal affirmed the delegate's decision to refuse a protection visa.
(iv) The application for judicial review
29 Mr Martizi sought review of the Tribunal's decision. He apparently prepared the Application himself. It revealed no grounds of review.
30 The application for review was heard by Tamberlin J, sitting in Perth on 10 August 2001. Mr S A Walker of counsel appeared for Mr Martizi on a pro bono basis. Mr Martizi was present by video-link to Port Hedland detention centre.
31 Mr Walker argued there was no evidence or other material to justify the making of the Tribunal's decision: see s 476(1)(g) of the Migration Act (as it then stood), noting s 476(4). In particular, Mr Walker attacked the Tribunal's use of the linguistic report.
32 Tamberlin J dealt with this argument. It is not necessary for us to reproduce his reasoning. No similar point is taken before us.
33 Nothing in Tamberlin J's judgment suggests any reference before his Honour to Mr Martizi's minority status. The Tribunal apparently accepted his claimed date of birth. In her reasons for decision, Ms McIntosh stated: "I note he is only 16 now".
Proceedings before the earlier Full Court
34 Mr Odhiambo and Mr Martizi each appealed to the Full Court against the decisions of Tamberlin J. Both appeals were to be heard on 20 February 2002. However, shortly before that day, a solicitor named Marg Le Sueur became involved. It appears that, in 2001, Ms Le Sueur resided in Port Hedland, where she worked for the Pilbara Community Legal Service. In about May 2001 she commenced to visit the detention centre, in order to bring some cheer to detainees. During the course of her visits she became aware of the presence in the centre of unaccompanied minors. As she explained in an affidavit later read to the Court:
"I felt concerned because they appeared to be a forgotten group. They were not, at that time, the object of concern for the broader Australian community, as were the women and children, yet not as able to stand up for themselves as were the adults."
35 Ms Le Sueur obtained permission to take unaccompanied minors out in small groups, in order to buy them new clothes and portable CD players. It was apparently in the course of this activity that she met Mr Odhiambo and Mr Martizi.
36 Ms Le Sueur moved to Perth on 21 January 2002. She took up a position with the Catholic Migration Centre. However, she maintained contact with the appellants. On 13 February 2002 Ms Le Sueur had a telephone conversation with Mr Odhiambo during which she learned of his imminent appeal. She thought he should be legally represented, but she was unable to arrange suitable representation for a hearing as early as 20 February. Accordingly, she decided to seek further time.
37 Ms Le Sueur filed notices of motion seeking an adjournment of each appeal for one month. The motion in relation to Mr Martizi came on first, on 18 February 2002, before a Full Court comprising Lee, Cooper and R D Nicholson JJ. Ms Le Sueur appeared for Mr Martizi. However, it quickly became apparent to the Court that it was probable that Mr Martizi was a minor who had entered Australia under circumstances that made the Immigration (Guardianship of Children) Act 1946 ("the GOC Act") prima facie applicable to him. The Court thought that raised an issue whether Ms Le Sueur could appear for Mr Martizi.
38 In order to explain the point, it is necessary to refer to the GOC Act. The key section is s 6. It reads:
"The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child 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, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens."
39 Section 4 of the Act defines "non-citizen" as "a person who is not an Australian citizen". Section 4AAA(1) defines the term "non-citizen child" (subject to subss (2) and (3)) as a person who:
"(a) has not turned 18; and(b) enters Australia as a non-citizen; and
(c) intends, or is intended, to become a permanent resident of Australia."
40 Section 4AAA(2) refers to the situation of a child entering Australia in the charge of, or proposing to live in Australia under the care of, a parent, adult relative or intending adoptive parent. Subsection (3) is concerned with a child in respect of whom a "prescribed adoption class visa" is in force. Neither subs (2) nor subs (3) applies to either of the appellants.
41 It is common ground between all the present parties that each of the appellants became a "non-citizen child", within the meaning of s 6 of the GOC Act, upon his entering Australia, and remained such until his 18th birthday.
42 Section 5 of the GOC Act confers upon the Minister a power to "delegate to any officer or authority of the Commonwealth or of any State or Territory all or any of his powers and functions under this Act (except this power of delegation)". In purported exercise of this power, the Minister has signed instruments under which he has sought to delegate his guardianship responsibilities to numerous officers of State and Territory governments. Submissions were put to us concerning the validity and effect of these instruments. In the view we take, it is not necessary for us to determine those questions.
43 The GOC Act does not require the Minister to retain custody of a "non-citizen child"; s 7 of the Act empowers the Minister to place the child in the custody of a person who is willing to be the child's custodian and is, in the opinion of the Minister, a suitable person for that role.
44 The earlier Full Court noted that Mr Martizi had been detained, briefly, in Victoria and, for a much longer period, in Western Australia. Accordingly, the Court directed that notice of the proceeding be given to senior officers in those States, they being amongst the persons to whom the Minister had made delegations under s 5 of the GOC Act. The Court then adjourned the matter until 22 February.
45 On 20 February Mr Odhiambo's appeal came before the same Full Court. Similar directions were given about notice.
46 On 22 February 2002 both matters were again mentioned before the same Full Court. Counsel for the Minister read an affidavit deposing to service of notice of the proceedings on the Victorian and Western Australian authorities. Attached to the affidavit were letters received in response to the notice from officers of the Western Australian Department for Community Development and the Victorian Department of Human Services. Each officer indicated lack of interest in the proceeding. Neither responded to the Court's concern that one or other of these Departments might have a statutory obligation to assist the appellants. Accordingly, the Court made directions for the Minister to file an affidavit describing the performance of guardianship duties in respect of the appellants, including details of whether any exercise of those powers had been undertaken by persons named by the Minister in an instrument of delegation. Affidavits relating to this matter were subsequently filed.
47 On 22 February, the Court ordered that each appeal be listed for mention and the hearing of issues relating to the duties of guardian on 5 March 2002.
The proceedings before us
48 On 5 March 2002 the two appeals came before the Court, as presently constituted. The appellants were represented by Mr R E Lindsay of counsel and the Minister by Mr P R Macliver of counsel. Mr R M Mitchell appeared for the Western Australian Department for Community Development and Ms N Sheard appeared by video-link on behalf of the Human Rights and Equal Opportunity Commission ("HREOC"). Ms Sheard made an application, in each appeal, for HREOC to be given leave to intervene.
49 There was discussion about the notices of appeal. Both of them raised issues that were beyond the jurisdiction of the Court, even under the legislation as it stood before 2 October 2001. Neither of them raised what appeared to be the principal issue now sought to be argued in each appeal: the consequences of the fact that each appellant was apparently a minor at the date of the Tribunal's decision.
50 The Court granted leave to each appellant to file an amended notice of appeal within 14 days, on the condition that the stated grounds each specifically relate to a permissible ground of review under s 476 of the Migration Act and do not merely raise questions of contested fact. The Court also granted leave to HREOC to appear in the appeals and to make oral and written submissions. The Court directed the appeals be listed for hearing after the amended notices of appeals were filed.
51 An amended notice of appeal was filed in each appeal within 14 days. In each case the grounds were further amended. The grounds of appeal in Mr Odhiambo's Further Amended Notice of Appeal were stated as follows:
"2(a) Part 7 of the Migration Act, which provides for review by the Refugee Review Tribunal (`The Tribunal'), alone or in combination with the Immigration (Guardianship of Children) Act 1946 (Cwth) requires that the Tribunal take all steps necessary to ensure that the Tribunal acts in accordance with the best interests of a child applicant and, in particular:(i) ensures that the child has a guardian for the purposes of the proceedings;
(ii) ensures that appropriate steps have been taken by the guardian to provide the applicant with legal advice and assistance in relation to the review;
(iii) if no guardian has been appointed, or if the appointed guardian has not so acted, adjourn the hearing of the application pending such steps being taken;
(iv) advise the applicant that it is in his best interests that he obtain legal advice and assistance in relation to the application.
2(b) At the time of the hearings before the Tribunal and of the Court the guardian of the appellant was either the Respondent or an officer of the Western Australian Department for Family and Children's Services (now the Department for Community Development);
(i) it was not appropriate for the Respondent to act on behalf of the appellant in a matter in which he was either the decision maker or the opponent in litigation;
(ii) a purported instrument of delegation conferring the powers of the Respondent as guardian of the appellant upon an officer of the Western Australian government was invalid and ineffective as being beyond the power of the Commonwealth;
(iii) accordingly, there was no legal guardian of the appellant in Australia at the relevant times;
(iv) alternatively, if an officer of the Western Australian Department for Community Development (Family and Children's Services) was delegated guardian powers, the Tribunal failed to ensure the guardian responsibilities were being carried out as set out in paragraph 2(a);
2(c) In acting in contravention of the obligations set out in paragraph 2(a) above, the Tribunal:
(i) failed to observe the procedures that were required by the Act to be observed in connection with the making of its decision in relation to the applicant;
(ii) did not have jurisdiction to make the decision;
(iii) was not authorised by the Act to make the decision;
(iv) erred in law in failing to correctly construe its legal obligations under the Migration Act or the Immigration (Guardianship of Children) Act 1946 (Cth) or both and failing to apply the law in the circumstances of this case.
2(d) The learned single judge erred in law in failing to set aside the decision of the Tribunal in the circumstances identified in paragraphs 2(a) and 2(b) above.
2(e) In circumstances where the learned trial judge was obliged to act in accordance with the principles set out in paragraph 2(a) above, the trial judge erred in law in determining the application before the Court in circumstances where those obligations had not been met.
3(a) The Tribunal erred in finding on the basis of the linguistic analysis it had obtained, that the appellant speaks Swahili almost as his mother tongue, and that he is not from the Sudan ...
PARTICULARS
...
3(b) The Tribunal erred in that it failed:
(i) to consider and grant the appellant's request for a further interview when he could then have been invited to speak in the Luo language;
(ii) to consider that he spoke Kenyan Swahili with no traves of Dinka because he had learnt his Swahili in Kenya and that the appellant conceded that he had forgotten his earlier Dinka language;
(iii) to consider that a language analysis in Luo, which was spoken in the Sudan (as well as Kenya) would be the proper test of the appellant's place of origin;
(iv) to consider that the language analysis states `it is possible that he has another very closely related Bantu language as his original primary language' and that this could be Sudanese Luo;
(v) to consider that the language analyst may not have addressed whether the appellant's fluency in Kenyan Swahili may be explained by his learning of the language in Kenya at an early age.
3(c) The Tribunal in failing to consider the matters referred to in ground 3(b) above made a decision that it did not have jurisdiction to make; and/or the decision involved an error of law; and/or there was no evidence or material to justify the making of the decision.
4(a) The Tribunal, having found that it was satisfied the appellant was a national of Kenya (albeit one without documentation) (AP141 para 82), erred in failing to then consider whether Kenya will accept the appellant as a citizen of that country and, if returned to Kenya, whether Kenya will seek to repatriate the appellant to the Sudan.
(b) The Tribunal erred in that if there is a real risk of the appellant's repatriation to the Sudan, Australia will have contravened its protection obligations under Article 33 of the Refugee Convention if in fact the appellant has a well-founded fear of persecution in the Sudan.
(c) The Tribunal gave no consideration to the matters referred to in paragraphs 4(a) and 4(b) and accordingly made a decision it did not have jurisdiction to make and/or erred in law in reaching its decision."
52 Mr Martizi's Further Amended Notice of Appeal contained the same ground 2. However grounds 3 and 4 were as follows:
"3(a) The Tribunal erred in failing to consider that, having found the appellant did not have a nationality as claimed and being outside his country of former habitual residence (Kenya) he may be unable to return to Kenya, or owing to fear, may be unwilling to do so....
3(b) In failing to consider the second half of the definition under Article 1A(2) of the Refugee Convention and its possible application to the appellant, the Tribunal made a decision which involved an error of law, and/or purported to make a decision it did not have jurisdiction to make.
4(a) The Tribunal erred in finding that the appellant did not have a well-founded fear of persecution for reasons of race if returned to Rwanda.
...
(b) In failing to give express attention to the matter referred to in paragraphs 4(a) the Tribunal:
(i) made a decision it did not have jurisdiction to make and/or made a decision which involved an error of law;
(ii) erred in law in failing to consider whether the appellant had a well-founded fear of persecution for a Convention-related reason."
53 On 10 April 2002 the Chief Justice made directions for the filing of submissions in anticipation of a hearing in Sydney on 24 April 2002. That hearing involved a video-link with Perth where Mr Lindsay again appeared for the appellants. Mr A Cavanough QC and Mr Macliver, counsel for the Minister, and Mr J Basten QC, counsel for HREOC, all appeared in Sydney.
The appellants' minority status
(i) Submissions on behalf of the appellants
54 The major matter argued at the hearing of the appeals was the significance of the appellants' minority status, it being assumed for this purpose that both appellants were indeed minors (that is, less than 18 years of age) at all stages of their applications for protection visas and at the time of the hearings before Tamberlin J.
55 Mr Lindsay argued the effect of the GOC Act was to confer on the Minister all the responsibilities of a natural guardian. Mr Lindsay said these responsibilities included (where necessary) asserting the rights of a child against a third party, for example by undertaking litigation on behalf of a child. He drew attention to a judgment of North J, X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; 92 FCR 524. That case also involved two infant stowaways who sought refugee status in Australia. Each failed before the delegate and the Tribunal and applied for review of the Tribunal's decision by the Court. Each applicant sought orders requiring the Minister to release him from detention and to make arrangements for his care and welfare in the community. The applications were made without the involvement of a tutor. The Minister sought orders dismissing the proceeding on that ground or, alternatively, that a tutor be appointed.
56 North J held that, although Order 43 rule 1(1) of the Federal Court Rules provides that an infant or minor may sue by a next friend, the rule does not itself impose such a requirement; it exists to facilitate any such requirement imposed by statute or common law. After referring to Haines v Leves (1987) 8 NSWLR 442, a decision of the New South Wales Court of Appeal dealing with the entitlement of a person under 18 to file a complaint of sex discrimination with the Equal Opportunity Tribunal, North J held (at para 32) that "the context and purpose of s 6 (of the GOC Act) points strongly to the conclusion that Parliament did not intend that a non-citizen child seeking to enforce the obligations of the Minister as guardian necessarily requires the intervention of a tutor as a precondition to taking or continuing such legal action".
57 North J then discussed the nature of a guardian's obligation. At para 34 he said:
"The guardian must therefore address the basic human needs of a child, that is to say, food, housing, health and education. Over the course of this century, attention to these needs has come to be recognised as a fundamental human right of children, including in various international instruments to which Australia is a party."
58 North J went on to summarise the development of children's rights in recent years. He referred to the approval by the League of Nations in 1924 of the Declaration of the Rights of the Child, the establishment in 1946 of the United Nations International Children's Emergency Fund ("UNICEF"), the 1948 Universal Declaration of Human Rights, the Declaration of the Rights of the Child done at Geneva in 1959, and the Convention on the Rights of the Child ("the Convention") done at New York in 1989. The Convention has been ratified by Australia.
59 North J quoted several provisions of the Convention. They included art. 3(1), which requires that, in all actions concerning children, including actions undertaken by administrative authorities, "the best interests of the child shall be a primary consideration", and art. 12(2), which requires that the child "be provided the opportunity to be 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".
60 North J said (at para 41):
"The rights to accommodation, food and education are essential and fundamental to the well-being, if not the very existence, of the child. The Convention recognises that the rights must be implemented by according the best interests of the child a place of primary consideration in the making of decisions concerning children. It also recognises that implementation will often require the State to devote community resources through direct funding and access to social security, to achieve the best interests of the child in relation to these needs. Finally, the Convention recognises that children must be able to put forward their claims against the denial of such rights in administrative and legal proceedings. In so doing they must be given a direct voice if they are capable of making it heard."
61 North J acknowledged that the rights recognised by the 1959 Declaration and the Convention have not been given the force of domestic law. However, he pointed out, they have been recognised as establishing human rights under the Human Rights and Equal Opportunity Commission Act 1986 by their inclusion in the definition of "human rights" under that Act.
62 At para 43, North J made a statement upon which Mr Lindsay placed reliance:
"The responsibilities of a guardian under s 6 of the Act include the responsibilities which are the subject of the Convention. They are responsibilities concerned with according fundamental human rights to children. ... Once it is recognised that the rights with which s 6 is concerned are in the nature of fundamental human rights it becomes clear that Parliament intended that if a non-citizen child were denied any of these fundamental rights, they would have access to the legal system with the minimum of formal hurdles. Without an express requirement for a tutor to be appointed it should be concluded that Parliament intended no such procedural impediment would necessarily stand in the applicants' way."
63 Mr Lindsay used this statement to support a submission that "guardianship involves a duty to protect the interests of a child in respect of third parties". He suggested there was no other way in which a child's interests could be protected; a child could not be represented in a legal proceeding except through a guardian. Mr Lindsay referred to a comment by Brennan J in J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 455:
"it is difficult to perceive the source of legal authority for a solicitor to represent a child in non-criminal proceedings when no order has been made by a court of competent jurisdiction appointing some other person to give the necessary instructions."
64 Mr Lindsay then turned to the significance of these principles for the present cases. He said:
"The Tribunal was required to notify a guardian acting on behalf of the appellant, of those matters required by the applicant to be addressed under Section 424(2), 424A(1), 425 and 425A. If the child applicant then attended without guardian assistance for the oral hearing the matter should have been adjourned until the child applicant obtained the necessary guardianship assistance. At the appeal stage it would have been in the best interests of the child to have had guardian assistance. Order 43 Rule 2 of the Federal Court Rules provides for the Court to appoint a tutor for the purpose of proceedings."
65 Mr Lindsay argued the Tribunal's failure to ensure that the appellants had guardianship assistance raised two grounds of review: first, "there could be no adequate performance by the appellant with s 424A(1), 425 and 425A of the Act and so the Tribunal failed to observe procedures required by the Act" (s 476(1)(a)); second, the "failure ... meant the Tribunal could not discharge its functions", resulting in jurisdictional error (s 476(1)(b)).
66 Mr Lindsay also made submissions concerning the validity of the Minister's delegations under s 5 of the GOC Act.
(ii) Submissions on behalf of HREOC
67 Counsel for HREOC, Mr Basten, put submissions that covered much the same ground as those of Mr Lindsay, but expanded on them in some respects. A fundamental proposition put by Mr Basten was that Part 7 of the Migration Act and the GOC Act "should be interpreted consistently with Australia's human rights obligations". Mr Basten also referred to the Convention. He noted it applies to all people below the age of 18 years within the Australian jurisdiction (art. 1 of the Convention) and, therefore, "to minors who are asylum seekers or refugees and also minors whose applications for refugee status have been refused".
68 Mr Basten emphasised the particular significance of arts. 3(1) and 12(2) of the Convention, and referred to the guidelines relating to refugee children issued by the United Nations High Commissioner for Refugees ("UNHCR"): see Refugee Children: Guidelines on Protection and Care (1994) and Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997). Those guidelines require 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 to ensure the interests of the child are safeguarded and his/her needs are appropriately met. The 1997 document includes this material under the heading "Refugee status determination":
"Considering their vulnerability and special needs, it is essential that children's refugee status applications be given priority and that every effort be made to reach a decision promptly and fairly.Not being legally independent, an asylum-seeking child should be represented by an adult who is familiar with the child's background and who would protect his/her interests.
Interviews should be conducted by specially qualified and trained officials.
Appeals should be processed as expeditiously as possible.
In the examination of the factual elements of the claim of an unaccompanied child, particular regard should be given to circumstances such as the child's stage of development, his/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."
69 Mr Basten argued the Tribunal erred in law "in failing to identify its legal obligations" under Part 7 of the Migration Act and the GOC Act, "and in failing to apply the law to the circumstances of this case". He said that, as child applicants, "the best interests of the appellants should have been the primary consideration at all stages of the processing of their claims". Mr Basten contended this meant the Tribunal should have ensured that the appellants had a guardian for the purpose of the proceedings. He said:
"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."
70 Mr Basten went on to discuss the delegations and the action taken pursuant to them. It is not necessary for us to summarise this discussion; it is common ground that no delegate played a meaningful role in either of the Tribunal hearings.
71 Mr Basten also contended that an independent guardian or delegate would have had an obligation to consider whether application should have been made on behalf of the appellants for bridging visas, permitting them to be at liberty, although no doubt under supervision, during consideration of their applications for protection visas.
72 Mr Basten submitted that the Tribunal should have acted in the best interests of the appellants by ensuring that appropriate steps had been taken by their guardian to provide them with legal advice and assistance in relation to their applications for review. He acknowledged that the appellants had received assistance from Macpherson & Kelley, but he said this was in "the same general category as is provided to all persons in detention pursuant to the Immigration Advice and Application Assistance Scheme". That assistance does not, and did not, extend to representation before the Tribunal. Mr Basten said, in the case of both appellants, "their ability to present arguments at the RRT hearing was, in many respects, critical to their case"; in each case the Tribunal relied heavily upon the applicants' evidence and made adverse credit findings because of the apparently inadequate and conflicting nature of that evidence.
73 Mr Basten said:
"In assessing the factual basis of the Appellants' claims, the RRT failed to properly take into account and assess the following relevant matters:
h 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;
h 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); and
h 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."
74 The "Stowaway Interview Report", referred to by Mr Basten, is a report of an Immigration Department inspector who interviewed the six stowaways on their arrival at Geelong. The inspector recorded details of Mr Martizi's claims, including that he left Rwanda "because of the fighting and civil war". She commented: "when discussing Rwanda Peter towards the end of the interview became emotional".
75 Mr Basten referred to a decision of the Federal Court of Canada, Uthayakumar v Canada (Blais J, 18 June 1999), in which the Court found reviewable error in a decision by a Refugee Panel to reject the claim for refugee status of two unaccompanied minors because the Panel did not think their evidence credible. The Court said the Panel did not take into account the age of the children at the time of their travel to Canada and that they did not "keep a log throughout their travels".
76 Mr Basten quoted comments made by a Panel in another Canadian case:
"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."
77 Mr Basten also quoted the UNHCR's 1994 guidelines concerning proof:
"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."
(iii) Submissions on behalf of the Minister
78 Counsel for the Minister argued that, whatever may be the relevant obligations of the Minister under the GOC Act, "that Act does not impose any legal obligations on the Tribunal". Their reason was that the Tribunal is independent of the Department; its members are not delegates of the Minister under either the GOC Act or Migration Act.
79 Counsel suggested the "essence of the alleged duty of the Tribunal was to ensure that the applicant had the benefit of legal advice and assistance in the advancing of his application for review". They said each applicant had such advice and assistance, including in preparation of the initial application for a protection visa. They argued:
"The involvement of a further person as `litigation guardian' of the applicant was not necessary to ensure that the applicant received appropriate legal assistance and advice in relation to his application to the Tribunal for review."
80 Counsel accepted that the Minister was guardian of each of the appellants, pursuant to s 6 of the GOC Act, but they said he "complied with any responsibilities he might have had as guardian in relation to (each) Appellant's application for a protection visa and his subsequent review application by the Tribunal, by providing independent legal advice and assistance to (each) Appellant through the provision of the services of Macpherson & Kelley".
81 Counsel contended that, as the Minister was at all times the guardian of each appellant, and had carried out his guardianship responsibilities in relation to the applications for protection visas and the subsequent applications to the Tribunal, the validity of the Minister's delegation of powers and functions under the GOC Act is irrelevant. Nonetheless they made submissions in support of validity.
82 Counsel for the Minister contended the Tribunal carried out its obligations to the appellants notwithstanding their status as infants. They pointed out the Tribunal gave notices and invitations under s 424A, 425 and 425A both to the relevant applicant and to Macpherson & Kelley.
83 Counsel for the Minister emphasised that the Convention on the Rights of the Child is not part of Australian domestic law. However, they accepted that ratification of an international convention by Australia is significant in the following respects:
"(i) The courts should favour a construction of a statute or subordinate legislation, so far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations.(iii) An international convention may play a part in the development by the courts of the common law, and may be used as a legitimate guide in developing the common law.
(iii) The provisions of an international convention may be relevant to the exercise of a statutory discretion, and ratification of a convention can give rise to a legitimate expectation that a decision-maker will exercise that discretion in conformity with the terms of the convention."
See per Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
84 Counsel went on:
"[HREOC] submits that the Tribunal should have acted in the best interests of the Appellant by ensuring that he had a guardian for the purposes of the review proceedings: ... However, it is difficult to see how such an obligation arises as a result of the effect of an international treaty ... No particular provision of Part 7 of the Migration Act has been identified whose construction in accordance with this principle positively required the Tribunal to ensure that the Appellant had a guardian for the purposes of the review proceedings.In any event, pursuant to s.6 of the Guardianship Act, the Respondent was the guardian of the Appellant. Any obligation which the Respondent may have had as guardian of the Appellant to provide him with legal advice and assistance for the review proceedings was met by the provision of the services of lawyers Macpherson + Kelley. In those circumstances there cannot have been any obligation on the Tribunal to take any steps or make any inquiries in relation to the guardianship of the Appellant. No such obligation arose from any of the provisions of Part 7 of the Migration Act, even having regard to the principle of statutory construction arising as a result of Australia's ratification of the Convention."
85 Counsel concluded their submissions on the major issue by suggesting that, as there was no relevant error on the part of the Tribunal, Tamberlin J was correct in dismissing each application for review.
(iv) Conclusions
86 In two Supreme Court adoption cases, Re adoption of S (1976) 28 FLR 427 (Blackburn J) and Re Application of K (1995) 36 NSWLR 477 (Brownie J), it has been held that s 6 of the GOC Act confers on the Minister all the usual incidents of guardianship. That was also the view expressed by North J in X. We agree with it. No other interpretation would give adequate effect to the words used in s 6: "guardian of the person, and of the estate in Australia, of every non-citizen child ..." Moreover, it is clear from the Second Reading Speech of the Minister who introduced into Parliament the Bill for the GOC Act (Mr A A Calwell) that it was intended the Minister have wide powers: Australia, House of Representatives 1946, Parliamentary Debates (Hansard), 31 July 1946, at 3369. In that speech Mr Calwell said:
"The bill also covers children who will be brought to Australia under the auspices of any governmental or non-governmental migration organizations when migration is resumed. The overriding responsibility of the Commonwealth in respect of all migrants, including the application of its social service legislation, applies in greater force perhaps to children. It is believed that the Commonwealth Government, in encouraging and financially assisting child migration by way of contributions towards passage money and payment of child endowment to organizations caring for the children, accepts a responsibility which does not end with the children's arrival in Australia. It is, therefore, incumbent on the Commonwealth to see that child migrants are properly accommodated and cared for until they reach 21 years of age. The only way in which this can be achieved is by vesting in the Minister for Immigration an overriding legal guardianship in respect of all such children."
87 Although it is clear that the legislation was conceived as a way of ensuring adequate oversight of the welfare of children who had been, or would be, brought to Australia under voluntary migration schemes sponsored by social welfare organisations and church bodies, it was drafted in wide terms. As counsel for the Minister acknowledged, the enacted legislation extends also to children who come to Australia as asylum-seekers.
88 We also agree with North J that the incidents of guardianship extend to provision of the basic needs of the child, and that these may include legal advice and assistance: see Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 411.
89 There was no argument before us as to whether the Court has jurisdiction, pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth), in respect of the Minister's powers and obligations and guardian and it is unnecessary for us to express any view about that.
90 In the case of children who come to Australia with government approval, under voluntary migration schemes, there would appear to be no conflict between the role of the Minister as guardian and the Minister's role in administering the Migration Act. However, where children come to Australia as asylum-seekers there may be such a conflict. For example, the Minister may have a policy of detaining all asylum-seekers (or all persons falling within a particular class of asylum seekers) pending final determination of their claims to be recognised as refugees. Yet a person acting independently of the Minister might see grounds, in the particular case, for the grant of a bridging visa permitting release of the child from detention during that period.
91 Similarly, as the person administering the Migration Act, the Minister has an interest in resisting challenges to decisions of delegates and decisions of the Tribunal that uphold delegates' decisions. That interest is directly opposed to the interest of an asylum-seeker in setting aside a decision unfavourable to him or her and obtaining reconsideration of the application for a protection visa.
92 Although it is clear from the wording of the GOC Act, and accepted by the Minister, that the Minister is the guardian of unaccompanied asylum-seeker children, the potential for conflict of roles must, of course, exist. There do seem to be difficulties in a solution that involves a delegation to many state officials, none of whom is normally concerned with the operation of the Migration Act, rather than to a specified independent person.
93 However, these appeals turn on narrower issues. The question for us to determine is whether or not Tamberlin J erred in holding, in each case, that the applicant had failed to demonstrate the existence of a ground of appeal falling within s 476 of the Migration Act, as it then stood. This requires attention to the conduct and decision of the Tribunal, not the position or conduct of the Minister.
94 An applicant may be so disadvantaged, by tender years or mental disability, as to render it impossible for the Tribunal to conduct the hearing envisaged by Part 7 of the Migration Act except through a guardian who is actively representing the applicant's interests. Falling short of that extreme, there may be cases in which the Tribunal will feel unable, because of the age or mental capacity of the applicant, to conduct a proper hearing unless and until the applicant has received independent legal assistance and advice. In such a case, the Tribunal is free to postpone or adjourn the hearing to enable this to occur. The Tribunal is master of its own procedures, subject only to any relevant statutory commands. Those commands include pursuit of the objective of providing a mechanism of review that is "economical, informal and quick" (see s 420(1)); but the review must also be "fair" and "just".
95 In neither of the present cases did the Tribunal feel it was necessary for the applicant to be actively represented by the guardian in order that it might conduct the hearing for which Part 7 provides. In all the circumstances, we do not think the Tribunal can be criticised for this. Although both appellants were apparently then under the age of 18, they were not "children" or demonstrably unable to have proper regard for their own best interests. They had, in the most difficult of circumstances, apparently lived independent lives for many years. The Tribunal provided an apparently satisfactory interpreter in each case and it knew that each applicant had received qualified and independent assistance in the formulation of his application for a protection visa and at each stage of the Tribunal's enquiry. That matter, we regard, as extremely important. As counsel for the Minister submitted, it is difficult to see how the extent or quality of legal assistance would have been any greater if it had been commissioned by an independent guardian of these applicants.
96 It is true that neither appellant was actively represented before the Tribunal. As we understand the situation, that is normal; few applicants are actively represented by a migration agent or lawyer. No doubt the main reason for this is lack of funds. However, a contributory reason must be that the inquisitorial procedure adopted by the Tribunal leaves little scope for a migration agent or lawyer to make a difference to the presentation of the evidence. We are not prepared to treat this matter as being so important as to require a conclusion that the Tribunal ought not to have proceeded with the hearings in the absence of a lawyer or migration agent.
97 In this case, the Tribunal heard the appellants' evidence by video conferencing. This Court regularly uses video to conduct hearings to great practical effect. It is a valuable tool for a Court or Tribunal in conducting hearings where one, some or all of the parties are located at various points over a large area. However, video can have its limitations: see the discussion by Spender J in ACCC v World Netsafe [2002] FCA 526. The particular position applicants for protection visas are in has been the subject of judicial comment. In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 557, the Full Court said:
"We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations."
98 The Full Court also quoted with approval the following passage from Professor Hathaway in The Law of Refugee Status (1991):
"First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state."
99 It is of course for the Tribunal to decide whether it conducts a video hearing in a particular matter. It is empowered to use it: see s 429A of the Migration Act. But, in doing so, it is as well to be mindful of the limitations of using videos for hearings, particularly where language and demeanour may be relevant if not significant in assessing the veracity of what the applicant for the protection visa is saying in circumstances where the person giving the account is starting from a position of comparative disadvantage of the type just discussed.
100 Unless the bare fact that each applicant was apparently a minor is sufficient, we are unable to see any feature of either of these cases that would justify a finding that the Tribunal erred in proceeding with the hearings in the absence of a guardian actively representing the applicants' interests.
101 Is that bare fact sufficient? We think not, basically for the reasons enunciated by North J in X. An application to the Tribunal for review of a decision refusing a protection visa is a statutory procedure designed to elicit an administrative decision. Analogies with court-controlled litigation may sometimes be useful; but it would be erroneous, in the absence of statutory warrant, to engraft curial rules and requirements onto such a statutory procedure. The statute must be allowed to operate on its own terms. The Migration Act makes no provision for an applicant to proceed before the Tribunal by a next friend, tutor or guardian. On the contrary, s 425(1) requires the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments". The reference, obviously, is to the applicant himself or herself. And the applicant is not only to act as a witness ("to give evidence") but also to act as advocate ("present arguments").
102 The situation is not unlike that discussed in Haines v Leves. At 451, Street CJ (with whom Samuels JA agreed) noted that s 101(1) of the Anti-Discrimination Act "confers an express entitlement on a party to an inquiry `to appear personally'." His Honour went on:
"In the context that I have earlier mentioned, namely with infant complainants well in contemplation in the Act within the field of educational discrimination, one could hardly find a more direct statement of legislative intention."
103 Part 7 of the Migration Act does not use the word "personally". However, s 425(1) obviously contemplates an appearance by the applicant himself or herself; and there can be no doubt that Parliament realised some applicants for protection visas would be persons under 18 years of age.
104 Those who have argued in support of the appellants' case on this issue have assumed that the active involvement of a guardian, before the Tribunal, would have been a benefit, rather than a detriment, to the appellants' cases. In the overwhelming majority of cases, the assumption is no doubt justified. However, it will not always be the case. The incidents of guardianship include powers as well as duties. A person having the status of a guardian is entitled to make decisions on behalf of his or her ward, including decisions contrary to the wishes of the ward. It would be a serious situation indeed if, say, a 17 year old with normal intelligence and understanding was precluded from pursuing a course offered by the Migration Act because of a decision made by a guardian, or a delegate of a guardian, appointed by the Minister.
105 We do not think the Tribunal erred, in either of these cases, in proceeding with its hearing and determination of the application for review, notwithstanding the absence of any guardian actively representing the applicant.
106 Having regard to that conclusion, we think nothing turns on the absence of a guardian (or a tutor or next friend) in the proceedings before Tamberlin J. We agree with North J that it is competent for a minor to seek review of a Tribunal decision in this Court without the involvement of a next friend. In any event, a different view would not assist the present appellants; it would merely mean their proceedings in this Court should be dismissed as incompetent. If the conclusions we have expressed are correct, the proceedings before Tamberlin J were bound to fail (at least on this issue) with or without a next friend.
Odhiambo's individual points
(i) The linguistic analysis
107 Paragraph 3 of Mr Odhiambo's Further Amended Notice of Appeal relates to the Tribunal's use of the linguistic analysis of his speech. Mr Lindsay submitted the Tribunal "erred in its findings as to the proper and correct inferences to be drawn from the language laboratory analysis in that relevant material was not considered by it". He itemised the following matters:
(a) Mr Odhiambo said his mother came from Kisuma in Kenya;
(b) Mr Odhiambo told the delegate his mother tongue is Swahili;
(c) Mr Odhiambo told the inspector that he spoke Swahili and Luo (a Sudanese tribal language). He told the delegate that he spoke Dinka when he lived in Sudan, but had forgotten that language;
(d) The East African linguist said Mr Odhiambo "speaks Swahili fluently, almost as his mother tongue i.e. he has grown up in a native coastal Swahili environment. It is possible that he has another very closely related Bantu language as his original primary language ..."
108 Mr Lindsay said that, in failing to address these matters, the Tribunal ignored relevant material and asked itself the wrong question, thereby reaching a decision it did not have jurisdiction to make. He referred to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1.
109 Mr Basten did not put a submission on this issue.
110 Counsel for the Minister argued the Tribunal did not fail to consider relevant material. They pointed out that the Tribunal member, Mr Gibson, noted that Mr Odhiambo "recommends a further interview for language analysis purposes". Counsel stated he was not obliged to accede to this request. The Tribunal had invited written comments on the language analysis and received them from both Mr Odhiambo and Macpherson & Kelley. Neither of them mentioned Luo or requested a further interview in that language. Counsel went on:
"Although the Appellant had claimed to have spoken the Luo language while living in Sudan at his initial interview (and that he was born at Dinka, Sudan), he subsequently maintained that he spoke Dinka when he lived in Sudan. He did not list `Luo' as a language he knew at all in his application for a protection visa whereas he did nominate `Swahili (Little)', `English (Little)' and `Dinka (Little)'. This was noted by the Tribunal in another context ... In any event, since Luo is spoken in Kenya as well as in Sudan, a further interview would have been inconclusive at best, and would have involved substantial delay."
111 Counsel argued the complaints made in para 3 of the Further Amended Notice of Appeal are really "complaints about the merits, not the legality, of the Tribunal's decision". They said the Tribunal was well aware of, and took into account, Mr Odhiambo's claims to have come to Kenya from Sudan when he was 11 or 12 years old and to have forgotten his earlier Dinka language.
112 The Minister's submissions on this issue must be accepted. The scheme of the Migration Act is to make the Tribunal, not the Court, the judge of the facts in cases of this nature. We offer no view about the merits of the Tribunal's findings concerning the linguistic analysis; these were findings of fact. It is sufficient for us to say we are unpersuaded that, in determining this issue, the Tribunal failed to take account of any relevant item of evidence.
(ii) The risk of removal to Sudan
113 Mr Lindsay noted the Tribunal said it was satisfied that Mr Odhiambo "is a national of Kenya, albeit one without any documentation". On the other hand, Mr Odhiambo claimed to be Sudanese. Under these circumstances, he claimed, the Tribunal was under an obligation to consider "whether the Kenyan authorities might choose to accept the appellant's assertion as to his place of origin and return him to the Sudan" where he might face persecution on account of being Christian. Mr Lindsay referred to art. 33(1) of the Refugees' Convention. That sub-article reads:
"1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
114 Mr Basten supported this submission. He referred to a decision of the House of Lords, Bugdaycay v Secretary of State [1986] UKHL 3; [1987] AC 514, which, he said, stated a principle later applied both by the Judicial Committee of the Privy Council (in Nguyen Tuan Cuong v Director of Immigration [1996] UKPC 43; [1997] 1 WLR 68) and in this Court.
115 According to Mr Basten, a country contravenes its protection obligations under the Refugees' Convention if it returns a person to a safe third country but there is a real risk that country will return the person to a country of former habitual residence or nationality, where he or she may suffer persecution. That is a fair summary of the decision in Bugdaycay, insofar as it related to one of the four appellants in that case, one Musisi.
116 It appears from the speech of Lord Bridge of Harwich, effectively speaking for the whole House in Bugdaycay, that Musisi was a Ugandan national. His Lordship said at 525:
"The decision to refuse him leave to enter was not based on the denial of his claim to refugee status quoad Uganda ... but on the conclusion by the Secretary of State that, even if he is properly to be treated as a refugee from Uganda ... this presents no obstacle to his return to Kenya whence he came to this country."
117 After discussing the facts at some length, at 532 Lord Bridge set out his understanding of the possible application of art. 33(1) of the Convention:
"My Lords, I can well see that if a person arrives in the United Kingdom from country A claiming to be a refugee from country B, where country A is itself a party to the Convention, there can in the ordinary case be no obligation on the immigration authorities here to investigate the matter. If the person is refused leave to enter the United Kingdom, he will be returned to country A, whose responsibility it will be to investigate his claim to refugee status and, if it is established, to respect it. This is, I take it, in accordance with the `international practice' of which Mr McDowall speaks in his affidavit. The practice must rest upon the assumption that all countries which adhere to the Convention may be trusted to respect their obligations under it. Upon that hypothesis, it is an obviously sensible practice and nothing I say is intended to question it. It is not, however, difficult to imagine a case where reliance on the international practice would produce the very consequence which the Convention is designed to avoid, i.e. the return of refugees to the country where they will face the persecution they fear. Suppose it is well known that country A, although a signatory to the Convention, regularly sends back to its totalitarian and oppressive neighbour, country B, those opponents of the regime in country B where are apprehended in country A following their escape cross the border. Against that background, if a person arriving in the United Kingdom from country A sought asylum as a refugee from country B, assuming he could establish his well-founded fear of persecution there, it would, it seems to me, be as much a breach of article 33 of the Convention to return him to country A as to country B. The one course would effect indirectly, the other directly, the prohibited result, i.e. his return `to the frontiers of territories where his life or freedom would be threatened.'For the sake of illustration, I have necessarily taken cases at opposite ends of a spectrum. In the ordinary case of a person arriving here, from a third country, and claiming asylum as a refugee from the country of his nationality, there will be no ground to apprehend that his removal to the third country when he comes would put him at risk. But at the other end of the spectrum, the risk may be obvious. Between these two extremes there may be varying degrees of danger that removal to a third country of a person claiming refugee status will result in his return to the country where he fears persecution. If there is some evidence of such a danger, it must be for the Secretary of State to decide as a matter of degree the question whether the danger is sufficiently substantial to involve a potential breach of article 33 of the Convention. If the secretary of State has asked himself that question and answered it negatively in the light of all relevant evidence, the court cannot interfere."
118 Nguyen concerned people of Chinese ethnicity who were expelled from Vietnam, where they formerly resided. They lived in China for some time before arriving in Hong Kong by sea and claiming refugee status on account of their experiences in Vietnam. The Privy Council's decision turned on the proper construction and application of the Hong Kong Immigration Ordinance. However, Lord Goff of Chieveley and Lord Hoffman, who dissented, discussed the operation of art. 33(1) of the Convention. After quoting its terms, they said at 79:
"Refugee status is thus far from being an international passport which entitles the bearer to demand entry without let or hindrance into the territory of any contracting state. It is always a status relative to a particular country or countries. And the only obligations of contracting states are, first, not to punish a refugee who has entered directly from the country in which his life or freedom was threatened for a Convention reason and secondly, not to return him across the frontier of that country. In all other questions of immigration control: for example, punishment for illegal entry from a third country, or expulsion to a third country from which there is no danger of refoulement to a country falling within article 33, the question of whether a person has refugee status is simply irrelevant."
119 Their Lordships noted that the applicants had lived in China for at least five years before coming to Hong Kong, that it was proposed they be repatriated to China and that China had indicated it would accept them. Under those circumstances, they said, it was irrelevant whether or not they still had refugee status in relation to Vietnam.
120 Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 was a decision of a Full Court of this Court. It concerned a Sri Lankan national who had been granted refugee status in France and subsequently came to Australia. He applied in Australia for protection visas for himself, his wife and child. The Tribunal affirmed a decision to refuse the applications but the primary judge set aside that decision. The Full Court reversed the primary judge, holding that Australia did not owe protection obligations to the respondent as he had effective protection in France. Both Nguyen and Bugdaycay were referred to by von Doussa J (with whom Moore and Sackville JJ agreed). He pointed out (at 559) that the decision to deport Musisi was quashed "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 Art 33 prohibited". His Honour held that, on the Tribunal's findings in the case before him, there was no risk of refoulement of Thiyagarajah to Sri Lanka.
121 Thiyagarajah has been considered in later Australian cases. It is not necessary to set them out. The principle is clear; art. 33(1) imposes on a Convention country an obligation to consider whether removal of a person to the country from whence that person came might lead indirectly to that person suffering persecution on a ground listed in art. 1A of the Refugees Convention as a result of a further removal to the country of nationality or previous residence.
122 The difficulty in applying this principle to Mr Odhiambo's case lies in the factual findings of the Tribunal. The Tribunal made a positive finding that Mr Odhiambo is a national of Kenya. The Tribunal expressly rejected the suggestion that he was Sudanese. So this case is unlike that of Musisi (in Bugdaycay) where the country of nationality was that of feared persecution. The refoulement argument must depend upon the supposition that Kenya, being the country of nationality, would decide to remove Mr Odhiambo to Sudan, and Sudan would agree to accept him, simply because he had (falsely) claimed to be Sudanese. Nothing was put before the Tribunal to support such a supposition; indeed, no attempt was made by Mr Odhiambo or Macpherson & Kelley to make such a case. According to the Tribunal's reasons for decision, Mr Odhiambo gave evidence "that the police chased and arrested the street boys because they were not good for tourism". But that is the extent of the accepted evidence as to official interest in Mr Odhiambo while he was in Kenya.
123 We do not overlook the fact that Mr Odhiambo claimed the friend with whom he fled Sudan was arrested in Kenya because he was a foreigner. However, it is implicit in the Tribunal's finding as to Mr Odhiambo's nationality that it rejected this claim.
124 There is no substance in either of the individual points put on behalf of Mr Odhiambo. His appeal must be dismissed.
Martizi's individual points
(i) Statelessness
125 The first individual point taken by Mr Martizi arises out of the circumstance that the Tribunal was unable to determine his country of nationality. The Tribunal rejected the claim that he was Rwandan but was also unable to be satisfied he was a national of either Kenya or the Democratic Republic of the Congo. Mr Lindsay argued that, in this situation, the Tribunal was obliged to consider whether the second part of the definition of "refugee" in art. 1A(2) of the Refugees' Convention applied to Mr Martizi. This part of the definition refers to a person "who, not having a nationality and being outside the country of his former habitual residence as a result of such events, (that is, fear of being persecuted for a Convention reason) is unable or, owing to such fear, is unwilling to return to it".
126 Mr Lindsay submitted:
"The Tribunal was under a duty to turn its mind to what apprehension of persecution the appellant might have if unable or unwilling to return to Kenya. However, the Tribunal made no findings on whether the appellant has a subjective fear of persecution if returned to Kenya. Although the Tribunal has stated that there are no objective grounds to fear persecution if the appellant was returned to Rwanda, it has not explored whether the appellant has a well founded fear of persecution if returned to Kenya."
127 Mr Lindsay noted the Tribunal did not state it disbelieved Mr Martizi's claim "that he had fled to Kenya from another country and that he had lived on the streets in Kenya and asked for food and could not find work". He said:
"In these circumstances the Tribunal needed to consider if the appellant may have a well-founded fear of persecution because he was likely to have no access to education or employment for reasons of belonging to a `particular social group' being street children or alternatively the Tribunal should have considered whether a well-founded fear might arise on grounds of race."
128 These submissions must be rejected. There was nothing before the Tribunal to indicate that Mr Martizi was denied access to education or employment because he was one of the "street children". He made no claim about seeking access to education. Although he told the inspector, on arrival at Geelong, that he "could not work", he did not say this was because he was a street child or a foreigner. He gave no reason; as the matter was immaterial to the case he sought to make, it was not pursued.
129 We agree the Tribunal did not address the situation that Mr Martizi would face if returned to Kenya, as his place of former habitual residence. However, it was not bound to do so. That question only arose, for the Tribunal, if there was material before it that indicated a risk of persecution in Kenya for a Convention reason. There was no such material.
130 In rejecting the submissions made on behalf of Mr Martizi, we do not overlook or minimise the deprivation he must have suffered while seeking to fend for himself on the streets of Mombasa. His situation was no doubt parlous, perhaps sometimes desperate, but it seems to have had nothing to do with persecution for Convention reasons. Mr Martizi's situation was one that is unfortunately not uncommon, especially in countries lacking a comprehensive social welfare system and universal education.
(ii) Possible return to Rwanda
131 Mr Martizi's Further Amended Notice of Appeal includes, as ground 4(a), that:
"The Tribunal erred in finding that the appellant did not have a well-founded fear of persecution for reasons of race if returned to Rwanda."
132 In addressing this ground, Mr Lindsay conceded the Tribunal considered the present situation in Rwanda and noted that Hutus were no longer being subjected to persecution by Tutsis. However, he said:
"The Tribunal did not address his claim as to how he came to flee, the slaughter of his parents or the death of his grandmother, being the last of his known relatives.It is submitted that the Tribunal should have directed itself to these circumstances, which were likely to give rise to persecution, since the appellant would be returning unaccompanied to Rwanda and with no known family to support him, and to a country of ethnic division, whose language he does not speak."
133 The circumstances under which Mr Martizi fled Rwanda - if, contrary to the Tribunal's finding, he did - are relevant only to determination of the ultimate question posed by the definition of "refugee" in the Refugees' Convention: whether Mr Martizi has a well founded fear of being persecuted in the future for a Convention reason. The past is relevant only as a guide to future events. Where little has changed in the country of nationality, the past may furnish excellent guidance as to the future; where there has been dramatic change, past events may provide little or no assistance. In considering the possibility that Mr Martizi would be persecuted as a Hutu in Rwanda, it was obviously essential for the Tribunal to consider the current position in relation to Hutu-Tutsi conflict. It was open to the Tribunal to take the view that the circumstances surrounding the death of Mr Martizi's parents, in about 1990, have little continuing relevance. It does not appear that Mr Martizi claimed his grandmother died as a result of persecution by Tutsis. There is no substance in this ground of appeal.
134 All Mr Martizi's grounds of appeal fail. His appeal must be dismissed.
Disposition
135 We propose to dismiss both appeals and to make the usual order as to costs.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Black CJ, Wilcox & Moore JJ. |
Associate:
Dated: 19 June 2002
Counsel for the Applicant: |
Mr R Lindsay |
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Solicitor for the Applicant: |
Marg Le Sueur |
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Counsel for the Respondent: |
A Cavanaugh QC and P McLiver |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Counsel for HREOC |
J Basten QC |
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Solicitor for HREOC |
Susan Roberts and Natalie Sheard - Human Rights and Equal Opportunities Commission |
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Date of Hearing: |
24 April 2002 |
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Date of Judgment: |
20 June 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/194.html