CTU17 v Minister For Immigration and CTV17 v Minister For Immigration and CTW17 v Minister For Immigration

In the Federal Circuit Court of Australia, Judge Barnes considered three applications brought by CTU17, CTV17, and CTW17 (the Applicants) against the Minister for Immigration. The core dispute concerned the validity of protection visa applications made in 2010, which the Applicants contended were not made on their behalf as they lacked the legal capacity to authorise such an application at that time. The Applicants sought to rely on this alleged lack of capacity to support their 2017 applications.

The primary legal issue before the court was to determine whether the Applicants possessed the requisite legal capacity in November 2010 to make or authorise a protection visa application. This involved assessing whether they had sufficient intellectual and emotional maturity to understand the nature and consequences of such a decision, thereby diminishing parental authority in relation to that specific matter. The court was also required to consider whether the evidence presented by the Applicants was sufficient to establish their lack of capacity.

Judge Barnes reasoned that while parental authority diminishes as a child's legal competence grows, the capacity of a child in relation to a migration decision is not presumed based solely on age or school enrolment. The court applied the principle that capacity depends on the specific maturity and understanding of the individual child in relation to the particular decision. The Applicants failed to provide evidence demonstrating their intellectual and emotional maturity, or lack thereof, in 2010 concerning a protection visa application. The court found that the mere fact of their ages (10, 9, and 6) and school attendance did not establish a presumption of sufficient maturity to make an informed choice or authorise the application, nor was it consistent with the need to assess the particular child and the specific matter. Consequently, the court found that the Applicants had not discharged their onus to prove they lacked the legal capacity to authorise the 2010 application.