Taylor, Julie --- "Guardianship of Child Asylum-Seekers" [2006] FedLawRw 7; (2006) 34(1) Federal Law Review 185
[*] BA (Asian Studies), LLB (Hons) (University of Western Australia). Thanks to Sarah Knuckey, Rachel Davis, and Justice Heydon for comments on earlier drafts; and to the anonymous referee who provided detailed comments and suggestions. I take full responsibility for the views expressed and any errors made.
[1] [2004] HCA 50; (2004) 210 ALR 190 ('WACB').
[2] [2002] FCAFC 194; (2002) 122 FCR 29 ('Odhiambo').
[3] See Transcript of proceedings, SFTB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 293 (11 August 2004). The application for special leave was from SFTB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 108; (2003) 129 FCR 222 ('SFTB'). The special leave application was stood over pending the outcome of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005).
[4] The term 'unlawful non-citizen' comes from s 14 of the Migration Act 1958 (Cth). Read with s 13, the term generally refers to a person in the migration zone who does not hold a visa that is in effect.
[5] The constitutional validity of s 6 was upheld by the High Court in R v Director-General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; (1975) 133 CLR 369. The Court's decision was unanimous, although all of the Justices gave separate reasons.
[6] Commonwealth, Parliamentary Debates, House of Representatives, 31 July 1946, 3369 (Arthur Calwell, Minister for Immigration). See also Antonio Buti, 'British Child Migration to Australia: History, Senate Inquiry and Responsibilities' (2002) 9(4) E-Law – Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v9n4/buti94.html> at 21 February 2006.
[7] Community Affairs References Committee, Parliament of Australia Senate, Lost Innocents: Righting the Record (2001) 26 [2.64].
[8] Ibid 26 [2.68].
[9] Ibid 27 [2.71].
[10] Commonwealth, Parliamentary Debates, House of Representatives, 3 March 1994, 1693 (Andrew Theophanous, Parliamentary Secretary to the Prime Minister).
[11] As noted by Kirby J, referring to argument in WACB [2004] HCA 50; (2004) 210 ALR 190, 208 [71]. Kirby J also noted the lack of empowering State laws to implement the delegation. Delegation of 'guardianship responsibilities' was also noted by a Full Court of the Federal Court in Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29, 37 [42]. An example of a delegation can be found in the text of Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516; (2001) 113 FCR 524, 526–7 [6] ('Jaffari').
[12] See R v Hughes (2000) 202 CLR 535, 552 [29], 568–70 [74]–[77]. This problem was referred to by the High Court in argument in WACB [2004] HCA 50; (2004) 210 ALR 190 and noted by Kirby J at 208 [71].
[13] This argument is also made by Buti, above n 6, [31].
[14] Jaffari [2001] FCA 1516; (2001) 113 FCR 524 , 526–7 [6].
[15] Community Affairs References Committee, above n 7, [5.41]. The Committee referred to the acknowledgment of this fact by the Minister for Immigration, Mr AR Downer, in June 1958.
[16] For example, Child Protection Act 1999 (Qld); Children and Young Persons (Care and Protection) Act 1998 (NSW); Community Welfare Act 1983 (NT); Children's Protection Act 1993 (SA); Children, Young Persons and Their Families Act 1997 (Tas); Children and Young Persons Act 1989 (Vic); Child Welfare Act 1947 (WA).
[17] [2004] HCA 50; (2004) 210 ALR 190, 201 [42] footnote 35 (Gleeson CJ, McHugh, Gummow and Heydon JJ).
[18] It was accepted by counsel for the Minister that the Minister was guardian: see Transcript of Proceedings, WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 89 (1 April 2004). A similar concession was made in Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29; 47 [87] (Black CJ, Wilcox and Moore JJ).
[19] The Minister's Second Reading Speech and debates in Parliament may be taken into account 'to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act' or to determine the meaning of a provision when 'the provision is ambiguous or obscure': Acts Interpretation Act 1901 (Cth) s 15AB(1)(a), (b)(i) and s 15AB(2)(f), (h). For the reasons in the preceding paragraph, it is argued that ss 4AAA , 6 of the Immigration (GOC) Act are unambiguous. However, the parliamentary debates are included here for completeness.
[20] Commonwealth, Parliamentary Debates, House of Representatives, 3 March 1994, 1693 (Andrew Theophanous, Parliamentary Secretary to the Prime Minister, Parliamentary Secretary to the Minister for Housing, Local Government and Human Services and Parliamentary Secretary to the Minister for Health), 1694 (Philip Ruddock, Shadow Minister for Social Security and Senior Citizens).
[21] As was explicitly acknowledged by counsel for the Minister in Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29, 47 [87].
[22] In relation to child asylum-seekers, see Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29, 45–46 [86]; X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524. This is consistent with previous decisions, in a different context, in Re Adoption of S (1977) 28 FLR 427; Re Application of K (1995) 36 NSWLR 477.
[23] Anthony Dickey, Family Law (4th ed, 2002) 341.
[24] Ibid 343. See also Neale v Colquhoun [1944] SAStRp 25; [1944] SASR 119, 129; Wedd v Wedd [1948] SAStRp 8; [1948] SASR 104, 106–107; Capodici v Capodici (1967) 12 FLR 129, 135–136; In the Marriage of Newbery [1977] FamCA 5; (1977) 27 FLR 246, 248; Youngman v Lawson [1981] 1 NSWLR 439, 445–446; Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, 626–7.
[25] Buti, above n 6, [26]; Walder White, 'A Comparison of Some Parental and Guardian Rights' (1980) 3 Canadian Journal of Family Law 219.
[26] Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489; Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1; Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843; (1999) 25 Fam LR 86, 231–45.
[27] Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, 511 (Kirby P, Priestley JA agreeing); cf 519 (Powell JA). Kirby P cited Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 141 and Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 426–7 (McHugh J). See also White, above n 25, 222–3; Robin Creyke, 'Current and Future Challenges in Judicial Review Jurisdiction: A Comment' [2003] AIAdminLawF 10; (2003) 37 AIAL Forum 42, 49.
[28] Wedd v Wedd [1948] SAStRp 8; [1948] SASR 104, 106–7 (Mayo J).
[29] Dickey, above n 23, 344.
[30] [1992] HCA 27; (1992) 176 CLR 408.
[31] Ibid 411, 412 (Mason CJ, Deane and Toohey JJ), 425 (McHugh J).
[32] Ibid 414. The majority also emphasised that the Department was involved in instructing the barrister who provided the 1976 advice, and that the information provided by the Department was 'incorrect and self-serving': at 415.
[33] Ibid 430–1. McHugh J noted that the breach of duty had been pleaded and dealt with in the courts below as a claim for damages for breach of a common law duty of care. McHugh J viewed this as additional to the fiduciary duty, which he thought also existed.
[34] Ibid.
[35] [2002] FCAFC 194; (2002) 122 FCR 29.
[36] Mr Odhiambo claimed that he was born on 26 March 1984. He applied for a visa on 17 June 2000. The Full Court's decision does not give the date of the review hearing, but it took place between February and April 2001. The Tribunal handed down its decision on 2 May 2001. Mr Martizi claimed he was born on 6 April 1984. He arrived in Australia and applied for a visa on 13 May 2000. He attended a review hearing by video link on 2 March 2001, and the Tribunal handed down its decision on 4 April 2001.
[37] Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29, 37 [41].
[38] Ibid 40 [54].
[39] Ibid 40 [46].
[40] Ibid 38–39 [51], 40 [52].
[41] Ibid 47 [90]. See also Creyke, above n 27, 49.
[42] Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29, 47 [90]–[91].
[43] The Tribunal's reasons are discussed in Part 3, below.
[44] [2004] HCA 50; (2004) 210 ALR 190.
[45] The citation for the first instance decision is Jaffari [2001] FCA 1516; (2001) 113 FCR 524. A related decision of French J, regarding the question whether the appellant was entitled to proceed without a next friend or tutor, is reported as Jaffari v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 985; (2001) 113 FCR 10.
[46] Transcript of Proceedings, WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 89 (High Court of Australia, Counsel for the Minister, 1 April 2004).
[47] [1931] UKHL 2; [1932] AC 161.
[48] [1984] HCA 36; (1984) 154 CLR 178.
[49] WACB [2004] HCA 50; (2004) 210 ALR 190, 201 [42]. The majority added that any role the Minister may have under the Immigration (GOC) Act was 'irrelevant to the question of construction raised by [the] appeal': at 201.
[50] Ibid 217 [106].
[51] Opened for signature 20 November 1989, 1577 UNTS 43 (entered into force 2 September 1990).
[52] The relevant Articles of the Convention on the Rights of the Child are discussed below: see text accompanying notes 68–70.
[53] [2001] FCA 313, [39] (Moore, Mathews and Mansfield JJ) ('Al Raied'). The Full Court referred to Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820, which illustrates problems that may arise in relation to the position of children.
[54] For example, see Al Raied [2001] FCA 313, [36] (Moore, Mathews and Mansfield JJ); Jaffari [2001] FCA 985; (2001) 113 FCR 10, [17]–[18] (French J).
[55] Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112. The principle in this case, often referred to as 'Gillick competence', was incorporated into Australian common law in Secretary, Department of Health and Community Services (NT) v JWB [1992] HCA 15; (1992) 175 CLR 218 ('Marion's Case').
[56] These were factors raised in B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451; (2003) 199 ALR 604, 664–5 [377]–[378] (Nicholson CJ and O'Ryan J). That decision was overruled on appeal but the High Court did not need to consider the question of the children's capacity: [2004] HCA 20; (2004) 219 CLR 365.
[57] [2003] FCAFC 307 (Tamberlin, RD Nicholson and Emmett JJ) ('WAIK').
[58] Ibid [30]. Section 69(1) of the Migration Act provides: 'Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.'
[59] Haines v Leves (1987) 8 NSWLR 442.
[60] For example, see Odhiambo [2002] FCAFC 194; (2002) 122 FCR 29, 49 [100]–[101].
[61] Note that s 422B of the Migration Act purports to exclude the rules of procedural fairness. The effectiveness of this provision, if any, has not yet been tested.
[62] [2002] FCAFC 194; (2002) 122 FCR 29.
[63] Ibid 38–39 [51]. Similar submissions were made by counsel for the Human Rights and Equal Opportunity Commission, intervening: see, 43–45 [67]–[77].
[64] Ibid 49 [101].
[65] Ibid 48 [94].
[66] Ibid 48 [96], 50 [105].
[67] Ibid 48 [94].
[68] Ibid 48 [94].
[69] Ibid 48 [94].
[70] [2003] FCAFC 108; (2003) 129 FCR 222. The special leave application originally raised the applicant's minor status and lack of assistance from his guardian as a ground of appeal, but counsel abandoned this argument during oral submissions: See Transcript of Proceedings, SFTB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 293 (11 August 2004).
[71] SFTB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 222, [20]–[21].
[72] See evidence recounted by the Full Court in SFTB [2003] FCAFC 108; (2003) 129 FCR 222, especially 229–30 [29]–[30].
[73] Ibid 230 [33].
[74] Ibid 227 [18].
[75] Ibid 227 [18].
[76] Ibid 230 [29].
[77] The Full Court noted that the 'appellant's age, the paucity of his education and his psychological state' were 'highly relevant': ibid 229 [28].
[78] [2002] FCAFC 194; (2002) 122 FCR 29, 43 [67]–[68].
[79] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J).
[80] Opened for signature 20 November 1989, 1577 UNTS 43 (entered into force 2 September 1990). Australia ratified the Convention on 17 December 1990 and complies with reporting requirements under Article 44, which requires each State party to submit to the Committee on the Rights of the Child a report on measures that have been taken to give effect to the rights recognised in the Convention and on the progress made in the enjoyment of those rights.
[81] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1992) 35 [214]. The Handbook was formulated after the Executive Committee of the High Commissioner's Programme at its twenty-eighth session requested the Office of the High Commissioner 'to consider the possibility of issuing — for the guidance of Governments — a handbook relating to procedures and criteria for determining refugee status' at 1 [4].
[82] Myers v Nominal Defendant [1966] 1 NSWR 659, 668 (Isaacs J), quoting obiter dicta in Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 83 (Latham CJ), 100 (Dixon J).
[83] Haines v Leves (1987) 8 NSWLR 442, 449–51.
[84] Order 43.
[85] See, eg, Federal Court Rules 1979 (Cth) O 43 r 4(3).
[86] See, eg, WACB [2004] HCA 50; (2004) 210 ALR 190; X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524; Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 985; (2001) 113 FCR 10.
[87] X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524, [43]–[45]; Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 985; (2001) 113 FCR 10, 16 [18].
[88] [1999] FCA 995; (1999) 92 FCR 524, 529 [17]. This comment might derive some support from Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408.
[89] [1987] HCA 4; (1987) 162 CLR 447, 455.
[90] Myers v Nominal Defendant [1966] 1 NSWR 659, 668; Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 83.
[91] [2002] FCAFC 162 (Whitlam, North and Stone JJ) ('WADG').
[92] Ibid [17], [19].
[95] SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426. In SFTB [2003] FCAFC 108; (2003) 129 FCR 222, 225–6 [12], the Court considered the appellant's age as a factor in the appellant's favour when deciding whether to grant leave to amend the grounds of appeal.
[96] [2002] FCAFC 162, [20].
[97] Jaffari [2001] FCA 985; (2001) 113 FCR 10, 16, [21] (French J).
[98] For example, see WACA v Minister for Immigration and Multicultural Affairs [2002] FCAFC 163; (2002) 121 FCR 463, 470 [28]–[29] (Whitlam, North and Stone JJ).
[99] [2001] FCA 1515, [33]–[34].