Jennifer and Minister for Immigration and Multicultural Affairs
[2006] AATA 302
•3 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 302
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/585
GENERAL ADMINISTRATIVE DIVISION ) Re
Jacklyn Jennifer
Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date3 April 2006
PlaceSydney
Decision The tribunal does not have jurisdiction.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – Immigration (Guardianship of Children) Act – visa applicant unaccompanied child from Indonesia – did not live with relative after arrival – on arrival did not claim asylum as refugee – construction and validity of s 11 order of Act – Parliamentary intent – section 11 Order within power – lack of expiration date does not infringe act or regulations – construction of expression “on arrival” – “on arrival” not inconsistent with allowing a short time after arrival.
Immigration (Guardianship of Children) Act 1946 ss 4AA, 4AAA, 11
Immigration (Guardianship of Children) Act 1952
Immigration (Guardianship of Children) Regulations 2001 No. 238 of 2001
Immigration (Guardianship of Children) Bill 1952 Second Reading Speech, the Honourable Mr Holt, Minister for Labour and National Service and Minister for Immigration, 4 June 1952
Commonwealth of Australia Immigration (Guardianship of Children) Act 1946 Order under Section 11, 25 February 1979
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairsand Another; Ex parte Miah (2001) 206 CLR 57
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
REASONS FOR DECISION
3 April 2006 Professor GD Walker, Deputy President Summary
1. The applicant, Jacklyn Jennifer, aged almost 17, is a citizen of Indonesia. She arrived in Australia on a subclass 676 tourist visa, as an unaccompanied child, on 15 January 1999. For a considerable period after her arrival, she lived under the care of a friend and not a relative. Miss Jennifer was included in a protection visa application lodged by her friend that was subsequently refused and the decision affirmed. Two applications for ministerial intervention were also refused.
2. The respondent, the Minister for Immigration and Multicultural Affairs, decided to refuse an application by Miss Jennifer for an order under 4AA of the Immigration (Guardianship of Children) Act 1946 to bring her within the coverage of the Act. This is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal is whether the applicant is excluded from the operations of the Immigration (Guardianship of Children) Act 1946 by reason of s 11 of that Act and the ministerial order, thereby depriving the tribunal of jurisdiction.
Background
4. The applicant, Miss Jennifer, was born in Jakarta, Indonesia, on 21 April 1989 and turns 17 this month. She is a citizen of Indonesia who arrived in Australia as the holder of a subclass 676 tourist visa valid for three months. At the time of her arrival on 15 January 1999 she was aged 9 years (T p48). Upon her arrival, she commenced living with a Mr Sundono who had arrived in Australia from Indonesia on 2 January 1999 (T p33).
5. On 27 January 1999, Mr Sundono lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs (“DIMA”), naming the applicant as a secondary visa applicant. On 9 September 1999, that protection visa application was refused and on 3 July 2000 the decision affirmed by the Refugee Review Tribunal (T p45). Mr Sundono then joined the Lie High Court class action, representing the applicant as a family member. On 26 April 2001, the applicant was granted a bridging visa E valid until 28 days after the determination of the Lie Class Action (T p13). Further bridging visas E pending the outcome of the class action were granted on 30 July 2002 (T p21), 6 August 2002 (T p22), and 16 September 2002 (T p23).
6. On 3 June 2001, Mr Sundono returned to Indonesia (T p32). The applicant remained in Australia and subsequently went to live with her grandparents at about the end of 2001 (T p43).
7. On 11 September 2003, Miss Jennifer’s then solicitor, Michaela Byers, applied for ministerial intervention pursuant to s 417 of the Migration Act 1958 (“the Act”) on behalf of the applicant. She was granted a bridging visa E on 29 August 2003 valid until 12 September 2003 pending the outcome of that application (T p26). A further bridging visa E was granted on 12 September 2003 valid until 12 December 2003 (T p31). Ministerial intervention was refused on 28 May 2004 (T p40).
8. On 24 June 2004, Miss Jennifer’s current solicitor, Adrian Joel, made a second application for ministerial intervention (T p40), which was refused in November 2004.
9. On 16 December 2004, Mr Joel made an application to the department to bring the applicant within s 4AA of the Immigration (Guardianship of Children) Act 1946 (“the IGOC Act”) (T p35). He also submitted that the “applicant may ultimately be regarded as a non-citizen child in accordance with Section 4AAA of the Act” (T p38).
10. On 22 March 2005, an officer of the family section of the department advised that the applicant did not meet the legislative requirements to enable the Minister to declare her a ward on the grounds that (T p53):
oJacklyn did not enter Australia in the care of, or for the purposes of living with, a relative. However, she held a visitor visa which limited her stay in Australia. She did not apply for PV [protection visa] on arrival but 12 days later. She was therefore excluded from the operation of the IGOC Act on entry to Australia under the section 11 Order that was in force.
oIf a child is excluded from the operation of the IGOC act by a section 11 Order, that child cannot be declared a ward under section 4AA of the Act.
oEven if the section 11 Order did not apply, Jacklyn does not meet the requirements of section 4AA – that she entered in the care of or for the purposes of living with a relative. This provision is intended where this care arrangement has broken down.
11. On 15 April 2005, the then Minister for Immigration and Multicultural and Indigenous Affairs, Amanda Vanstone, personally made the decision that the applicant does not fall within the criteria provided by s 4AA of the IGOC Act (that she entered Australia as a non-citizen child in the charge of, or for the purpose of living in Australia under the care of, a relative of the child) and that even if the criteria were met, the applicant falls within a class of children identified in s 11 of the Act (children who are tourists) and therefore the provisions of the Act do not apply to her (T pp6-7). This decision was notified to Mr Joel by letter dated 15 April 2005. The letter also advised Mr Joel that as his client had exhausted all avenues to remain in Australia, that she should make arrangements to depart Australia in accordance with the conditions of her bridging visa. A copy of the order under Section 11 was enclosed with the decision (T p11). The Minister’s decision did not refer to s 4AAA.
12. On 10 May 2005, Mr Joel lodged an application for a review of this decision with the tribunal on his client’s behalf (T p4). On 12 May 2005, the applicant was granted a bridging visa E pending the outcome of her application before the tribunal.
13. At the hearing of this matter the applicant was represented by Mark Robinson, of counsel, instructed by Adrian Joel, solicitor, and the respondent was represented by Neil Arora, solicitor, Clayton Utz Solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) together with the evidence tendered by the parties at the hearing. No oral evidence was called, the hearing being concerned solely with the legal validity and interpretation of the s 11 order upon which the then Minister made her decision.
Legislation and Policy
14. The principal legislation is contained in the Immigration (Guardianship of Children) Act 1946 (“the IGOC Act”).
15. Section 4 of the Act provides the following definition:
non-citizen child means a person who is a non-citizen child under subsection 4AAA(1) or (4).
16. Section 4AAA of the Act provides:
SECT 4AAA - Non-citizen child
(1) Subject to subsections (2) and (3), a person (the child) is a non-citizen child if the child:
(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.
(2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:
(a) a parent of the child; or
(b) a relative of the child who has turned 21; or
(c) an intending adoptive parent of the child.
(3) Subsection (1) does not apply if:
(a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult); and
(b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and
(c) the adult intends to reside with the child in a declared State or Territory.
(4) A person is a non-citizen child if:
(a) the person has not turned 18; and
(b) a direction under section 4AA is in force in relation to the person.
17. Section 4AA of the IGOC Act provides:
SECT 4AA - Orders for guardianship of certain children
(1) Subject to subsection (2), where:
(a) a person under the age of 18 years enters Australia as a non-citizen in the charge of, or for the purpose of living in Australia under the care of, a relative of the person (other than a parent) not less than 21 years of age; and
(b) the person intends to become, or is intended to become, a permanent resident of Australia;
the Minister may, if the Minister is satisfied that it is necessary in the interests of the person to do so, direct, in writing, that the person shall be the Minister's ward.
(2) The Minister shall not give a direction under subsection (1) unless the relative consents to the Minister doing so.
18. Section 4AA was inserted by the Statute Law (Miscellaneous Provisions) Act (No 1) 1985 Schedule 1. In his second reading speech on 9 May 1985, the then Attorney-General, Mr Lionel Bowen said of the Immigration (Guardianship of Children) Act 1946:
The amendments will enable the Minister to provide guardianship to minors, who have entered Australia with a supporting relative, when care arrangements have broken down. The consent of the supporting relative is required. A person whose interests are affected by a guardianship decision may apply for a review of the decision by the Administrative Appeals Tribunal.
19. Section 6 of the Act provides for the guardianship of non-citizen children and states:
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.
20. Section 11 of the Act provides:
SECT 11 - Exemption of children from Act
The Minister may, by order in writing under his hand, direct that the provisions of this Act shall not apply in respect of a child specified in the order, or a child included in a class of children so specified, and, while the order is in force, the provisions of this Act do not apply to or in relation to that child or to a child included in that class of children.
21. On 28 February 1979, the then Minister of State for Immigration and Ethnic Affairs, the Honourable Mr Michael MacKellar, signed a section 11 Order revoking the previous order and directing, inter alia, that the provisions of the Act shall not apply to:
(i) children who are 18 years of age or older;
(ii) children who are tourists or visitors;
(iii) children who are prohibited immigrants by virtue of a provision of the Migration Act 1958;
(iv) children whose continued presence in Australia is subject to a limitation as to time imposed by law, other than children who on arrival in Australia claim asylum as refugees.
22. The tribunal’s power to review that decision flows from s 11A, which provides:
SECT 11A - Reconsideration and review of certain decisions
(1) In this section, unless the contrary intention appears:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
relevant decision means a decision of a delegate of the Minister under section 4AA or 11.
reviewable decision means:
(a) a decision of the Minister under section 4AA or 11; or
(b) a decision of the Minister under subparagraph (3)(a)(ii) or subsection (4).
(2) Subject to subsection (3), a person affected by a relevant decision may request the Minister to reconsider the decision.
(3) The request shall:
(a) be made by notice in writing given to the Minister within:(i) the period of 28 days after the decision first comes to the notice of the person; or
(ii) such further period as the Minister (whether before or after the expiration of that period of 28 days), by notice in writing served on the person, allows; and
(b) shall set out the reasons for making the request.
(4) The Minister shall, within 45 days after receipt of the request, reconsider the relevant decision and may:
(a) confirm the decision;
(b) vary the decision; or
(c) set the decision aside and make a new decision in substitution for the decision set aside.(5) Where, pursuant to a request under subsection (2), the Minister reconsiders a relevant decision, the Minister shall, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration.
(6) Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions.
23. Section 12 of the Act provides for the making of regulations as follows:
SECT 12 - Regulations
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular for:
(aa) prescribing principles to be observed in considering whether or not to give a direction under section 4AA;
(a) prescribing the principles to be observed in relation to the placing of non- citizen children with custodians;
(b) regulating the placing of such children with custodians and the transfer of such children from one custodian to another;
(c) prescribing provisions to be observed by custodians in relation to the custody, control, welfare, care, education, training and employment of non-citizen children;
…
Submissions
24. As was stated above, the issue for the tribunal is whether the applicant is excluded from the operation of the IGOC Act by reason of the exclusion provisions in the ministerial order under s 11 dated 28 February 1979, namely that she arrived in Australia on a visitor visa (paragraph (b)(ii)) and that on her arrival she did not claim asylum as a refugee (paragraph (b)(iv)). If she is so excluded, the tribunal has no jurisdiction to hear the application.
25. As the first issue, the counsel for the applicant argued that the s 11 order was invalid. In his statement of facts and contentions (Exhibit A2), the applicant’s solicitor stated:
There is no valid Ministerial order exempting the applicant from the operation of the Act pursuant to section 11 of the IGC Act as there is no end period or time specified in the order or purported order (as there should have been on a proper construction of the section).
26. In the alternative, he submitted that if the ministerial order were valid, it does not apply to the applicant as she “on arrival in Australia” claimed asylum as a refugee by applying for a protection visa on 27 January 1999, 12 days after her arrival.
27. In her statement of facts and contentions (Exhibit R2), the respondent submits that the s 11 order is a valid order which, either expressly or by implication, does not have an end period or time but rather has application “while the order is in force”. She submitted this is evidenced by the wording of s 11 of the Act prior to its amended form, namely s 11 of the 1946 Act (No 45 of 1946), which provided:
11. The Minister may, by order, direct that the provisions of this Act shall cease to apply to and in relation to any immigrant child, or to any class of immigrant children, specified in the order, and this Act shall thereupon cease to apply accordingly.
28. The respondent also submitted that the second reading speech to the Bill evidenced that s 11 was intended to operate flexibly allowing the Minister to revoke the orders. The second reading speech to the Bill stated, inter alia:
Briefly, the proposed amendments provide, …; and thirdly, that the Minister shall have power to revoke exemption orders, and to make exemption orders prior to the arrival of an immigrant child or of a class of immigrant children.
As to the third proposed amendment, both my predecessor and myself have from time to time exempted from the act certain classes of immigrant children, such as single men between eighteen and 21 years of age, who have come to Australia as “special project” workers. In some instances, it has been found that it would be desirable to assume guardianship of an immigrant child covered by the class exemption. As section 11 of the act is worded, however, the Minister has no power to do this. The problem has been overcome by redrafting section 11 to bring it within the scope of section 33 (3.) of the Acts Interpretation Act, which provides that where a power is given in an act to make an order, that power includes a power to revoke, vary or amend, that order.
The respondent therefore submitted that if s 11 were construed in a narrow fashion as proposed by the applicant, the intention of the Parliament would be defeated and that the Minister’s power to revoke the order would be inconsistent with the applicant’s construction.
29. The respondent further submitted that s 11’s flexibility is evidenced by its prospective operation. In her statement of facts and contentions (Exhibit R2), the respondent’s representative stated:
Prior to the amending act s 11 provided that the Minister may by order direct that the provisions of the IGOC Act shall “cease to apply” to “immigrant children”. Thus, s 11 operated only retrospectively – ie the Minister could direct that the IGOC act ceased to apply to children who fell within its terms (“immigrant children” as defined in s 4). Thus, s 11 only operated on children who had already entered Australia and fell within the terms of the IGOC Act. By contrast the current s 11 (as amended in 1952) operates prospectively. It applies to exclude children from the Act before they enter Australia and thus become subject to the Act. The applicant’s construction introduces unwarranted inflexibility into the section by requiring the Minister to constantly renew the order after some specified time period. This brings with it the risk that where an order has expired and a new order has not been made, children will enter Australia and by operation of law (by reason of s 4AAA) be made wards of the Minister. This is contrary to the Parliamentary intent.
30. As to the validity of the order, Mr Robinson contended in his written submissions (Exhibit A1) that the order was invalid because (a) it is too widely drawn and/or (b) there is no end period or time specified in the order as there should have been on a proper construction of the section. He argued that on its present construction, it would “exclude virtually all “alien” children from the operation of the Act, particularly children who would otherwise have been accepted as Ministerial wards pursuant to the Minister’s discretion in s 4AA and as of right pursuant to s 4AAA of the Act. He argued that the respondent’s proposed construction of the expression “tourists or visitors” as referring to every alien child who was not the holder of a permanent entry permit would defeat the entire purpose of the Act and that on the respondent’s construction there would be no alien children in respect of whom the Act could apply. Further, he argued that an open-ended order of continuing operation purporting to remove the vast bulk of classes of alien children from the operation of the Act “cannot have reasonably been what the Commonwealth Parliament intended when it passed the Act”. Nor would the Minister have power under s 11 to remove, in perpetuity, “most if not all alien children from the operation of the protective provisions of the Act”.
31. With regard to the construction of the order, Mr Robinson submitted in his written submissions on the issue that the context of the order must be looked at as a whole, including in terms of providing natural justice under the Migration Act (cf: Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 at 146) and having regard to Australia’s international obligations including the United Nations Conventions on the Rights of the Child, which provide, inter alia, that the best interests of a child shall be a paramount consideration (cf: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). If there were any ambiguity, the tribunal should accord the applicant the benefit of a favourable construction. Mr Robinson also submitted that the construction of the expression “on arrival” as contended by the respondent was too narrow and would lead to “absurd results” particularly considering that the applicant was only nine at the time and unable to claim refugee status herself as the aeroplane landed.
32. As to the applicant’s alternative argument, that the section does not apply to the applicant, the respondent in her statement of facts and contentions (Exhibit R2) contends that the applicant falls within the exclusion provisions of (ii) tourist or visitor and (iv) children whose continued presence in Australia is subject to a limitation as to time imposed by law, other than children who on arrival in Australia claim asylum as refugees. In her statement of facts and contentions she stated:
In respect of paragraph (ii) the Minister contends that the expression “tourists or visitors” is to be construed by reference to the Minister’s intention in making the order in 1979. In 1979 Australia’s migration legislation, the Migration Act 1958 (Cth) (“the Migration Act”), did not provide for visitor or tourists visas (as today’s Migration Regulations do). Instead, in 1979 there was merely a regime of entry permits. To enter Australia an immigrant must have held an entry permit. Part II, Division 1 of the Migration Act provided for the regime for entry permits. Section 6(1) provided that an immigrant who enters Australia without an entry permit becomes a prohibited immigrant. Section 6(3) provided that an entry permit shall be expressed to permit a person to enter Australia or to remain or both. Importantly, for our purposes, s 6(6) provides that “an entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions”. Thus, there were two types of entry permits, a temporary entry permit (to remain in Australia for a specified period only) and, by implication, a permanent entry permit (to remain in Australia permanently).
A person who would have been considered a “tourist or visitor” in 1979 would have been the holder of a temporary entry permit. Any other person would be the holder of a permanent entry permit and not be considered a tourist or visitor. As mentioned, in 1979 there was no regime for bridging visas (or permits). Therefore, a person in the position of the applicant, able to remain in Australia for a limited period, would have been considered a tourist or visitor. Thus, the Minister contends that the applicant falls within paragraph (ii) of the section 11 order.
33. With regard to paragraph (iv) the Minister submits that as to the first requirement, her continued presence in Australia is subject to a time limitation – the bridging visa which has expired. With respect to the second requirement, the applicant did not claim refugee status “on arrival” but 12 days after her arrival in Australia. In the alternative, the respondent argues, the paragraph has a limited life – it operates to exclude a person from the s 11 order who, although his or her presence in Australia is subject to a legal limitation as to time, might attract Australia’s protection obligations under the Refugee Convention. In this case, the applicant’s claim for protection and her subsequent appeal rights have been determined – it was found she was not a person to whom Australia owed protection obligations, and therefore she remains a child whose continued presence in Australia is subject to the limitations of time imposed by law. The Minister’s representative further submitted:
… that paragraphs (i) – (iv) are all intended to operate to exclude from the IGOC Act those children who do not require any guardianship protection (ie. children over 18, children visiting Australia, children who are prohibited immigrants and therefore liable to removal and children who are in Australia temporarily and not likely to be brought within Australia’s refugee protection obligations). The applicant is a child who has no right to stay in Australia permanently. Her right to stay in Australia is limited to the outcome of these proceedings. Therefore, she is not a person who requires any guardianship protection.
34. In his written submissions on this point Mr Robinson contended that paragraph (b)(iv) does not have a “limited life” and that if it were intended to do so, it could have said so in terms, which it did not, particularly when one considers that in 1979 when the order was made, the refugee application process was a very long procedure with appeal rights under the Act and common law. The words of the order are plain and it should be construed in accordance with its terms.
35. At the hearing, Mr Robinson affirmed the arguments advanced in his written submissions. He submitted in conclusion that the tribunal has jurisdiction under s 11A(6) of the IGOC Act because the minister has made a decision under s 4AA (T pp6-7) and under s 11 (when deciding to apply the s 11 order to the applicant) within the meaning of s 11A(1), and that neither is exempted by a valid s 11 order. Mr Arora adopted and developed the respondent’s arguments as set out in her statement of facts and contentions.
Validity of the s 11 order of 28 February 1979
36. The applicant did not contend that the order of 28 February 1979 or the IGOC Act infringed the Commonwealth Constitution. Consequently, the order could be invalid only if it falls outside the power conferred in s 11 of the IGOC Act or infringes some other statutory provision or rule of law.
37. The regulation-making power in the IGOC Act is contained in s 12. It confers on the Governor-General the usual general power to make regulations not inconsistent with the Act, and also lists nine subject matters that are specifically included within the power. One of them is s 12(aa), which is for the “prescribing [of] principles to be observed in considering whether or not to give a direction under s 4AA”.
38. Regulations to that effect were promulgated on 29 August 2001, the Immigration (Guardianship of Children) Regulations 2001, No. 238 of 2001. Regulation 5 sets out three principles to be observed in considering whether or not to give a s 4AA direction. All three seem to be directed at orders made in relation to a particular child, rather than a class of children. The principles place no restriction on the width of the classes of children that can be specified, nor do they indicate that orders should be for a fixed period and not of indefinite duration.
39. The order in question is thus prima facie within power. In particular, the lack of an expiration date does not infringe s 11 or the regulations. As Mr Arora pointed out, giving the order an indefinite duration obviates the need for continually renewing it, while leaving it subject to the minister’s general power to revoke it at any time under s 33(3) of the Acts Interpretation Act.
40. Nor does the order’s width infringe s 11, which contemplates the exclusion of classes of children and has long been used in that manner. In the debates on the 1952 amendments, the minister pointed out that both he and his predecessors had from time to time exempted certain classes, such as single men between 18 and 21 years of age who had come to Australia as “special project” workers (at that time, of course, the age of majority was 21 years); House of Representatives debates, 4 June 1952, page 1377. While the order does operate to exclude most children who do not have permanent residence, it is going too far to say, as the applicant did, that it excludes “almost all alien children”. Even if it did, the applicant’s submissions did not explain how that would make the order ultra vires the power conferred by s 12, or otherwise invalid.
Application of the order
41. Mr Robinson submitted that, following the decision of the High Court in Minister for Immigration and Ethnic Affairsv Teoh (1995) 186 CLR 273, any ambiguities in the s 11 order should be resolved by adopting the interpretation that most favours the child’s best interests.
42. But Teoh was concerned with the exercise of discretionary powers, not with the principles of statutory interpretation in so far as their operation may be affected by unincorporated international treaties to which the Commonwealth is a party.
43. The applicant’s submissions could also be understood, however, as arguing that the minister was exercising a discretionary power when she chose to rely on the pre-existing order when making the reviewable decision. No authority for that proposition was cited and the normal view in such cases would be that the only relevant exercise of discretionary power was when the minister made the order in 1979.
44. Further, a majority of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 has expressed strong doubts about Teoh’s correctness. McHugh and Gummow JJ, with whom Callinan J agreed, considered it an “erratic application” of pre-existing doctrine (at p34). Hayne J questioned the effect of Teoh but did not consider it necessary to decide the point (at p38), while Gleeson CJ distinguished Teoh (at p13).
45. Even if Teoh is still good law and does apply to the resolution of ambiguities in statutory language, there is no evidence in this case that the child’s best interests would be served by bringing her under ministerial guardianship. She lives with her grandparents and has done so for several years, in accordance with her parents’ original intention. Jacklyn’s grandparents are aged 81 and 76, but it is not suggested that she is not being properly cared for. She is currently in Year 12 at Marsden High School and, according to the badge she was wearing at the hearing, she is a school prefect. It does not appear that she has ever previously been the subject of a guardianship order and no reason was offered as to why it would be in her best interests, at 17, to be a ward of the minister for the months remaining until she turns 18. The application has an air of artificiality about it.
46. It is settled law that where a statute or subordinate legislation is ambiguous, the courts (and tribunals) should favour the construction that accords with Australia’s obligations under a treaty or international convention to which Australia is a party (Teoh at p287). But that is not the same as an interpretation favouring the child’s best interests even if (contrarily to my finding above) Jacklyn’s best interests were served by making her a ministerial ward. The applicant did not explain how resolving the order’s ambiguities in the manner contended for by the respondent would breach the Commonwealth’s international law obligations under the Convention on the Rights of the Child. The order thus falls to be interpreted in accordance with ordinary principles of statutory interpretation.
47. The excluded classes into which the applicant could possibly fall are paragraphs (ii) and (iv). Paragraph (ii) applies to “children who are tourists or visitors”.
48. As regards paragraph (ii), Mr Robinson submitted that the words “tourists or visitors” could only apply to non-citizen children who were in fact tourists or visitors in the ordinary sense, not to those who entered Australia on tourist or visitor visas or, in the terminology of 1979, who were holders of temporary entry permits. Jacklyn was never a tourist or a visitor, as she had been sent to Australia by her parents in order to seek permanent residency. The respondent’s interpretation would not allow for alien children who sought refugee status after their arrival. Further, the words “other than children who on arrival in Australia claim asylum as refugees” should be read as applying to all four paragraphs, and not simply to paragraph (iv), in which they appear.
49. In relation to the first point, the respondent submitted that in 1979 when the order was made, a person who would have been considered a “tourist or visitor” would have been the holder of a temporary entry permit, as there was at that time no regime for bridging visas or permits. Therefore a person in the applicant’s position, able to remain in Australia for a limited period, would have automatically have been considered a tourist or visitor. The applicant therefore comes within paragraph (ii).
50. The applicant arrived in Australia in 1999 on a subclass 676 visitor visa valid for three months. There is something legally jarring about the suggestion that her entry on a visitor visa has no significance whatever, given that her parents when applying for that visa must have made a declaration that they intended that she would return home before the expiration of three months, in circumstances where the making of a false declaration about their intention would have been a criminal offence. Quite apart from that, I agree that the words “tourist or visitor”, if there is any ambiguity about their application in the present case, should be interpreted against the background of the statutory regime in force at the time the order was made. When that is done it is appropriate, for the reasons given above, to categorise the applicant as a visitor.
51. Nor is there any basis for treating the 12 final words of paragraphs (iv) as applying to the other paragraphs as well. Those words are set out as part of paragraph (iv) and not as concluding words for all four paragraphs, and in any event, they could have no application to paragraphs (i) or (iii).
52. As regards paragraph (iv), Mr Robinson argued that the respondent’s position was illogical and led to absurd results. The applicant was aged nine when she arrived. Mr Sundono met her at the airport and she claimed refugee status 12 days later. The respondent’s preferred interpretation would mean that a child could not even wait to be processed by customs and immigration before claiming asylum as a refugee. The proper construction of “on arrival”, he submitted, is that it means after the child arrives in Australia, as opposed to before arrival, because it is not possible to apply for a protection visa at the airport.
53. Mr Arora countered that “after arrival” or “on or after arrival” could not be correct interpretations because it is necessary in such cases to draw lines. If a broad interpretation were to be adopted, one might as well exclude the words “on arrival” altogether. A delay of 12 days was not consistent with applying on arrival, and the expression must mean on first contact with an officer who could receive an application. There was no evidence to show that a customs or immigration officer at the airport could not receive such an application.
54. While I agree that reading “on arrival” to mean “after arrival” would be to make the words of the order meaningless, I also think it would be possible to argue that the words “on arrival” are not inconsistent with allowing a short time after arrival. The criterion would be whether the delay was sufficiently short that the application could be viewed as directly related to the fact of arrival, and no longer than might be necessary for reaching the applicant’s final destination in Australia and making arrangements, through an agent or a lawyer if need be, for lodging the application. It is not necessary for me to decide that point, however, as I am satisfied that paragraph (iv) applies by reason of an alternative ground submitted by the respondent.
55. Mr Arora put that alternative argument in this way. Paragraph (iv) operates to exclude from the s 11 order a person who, although permitted to remain in Australia for a limited time only, might attract Australia’s protection obligations under the Refugee Convention. That is the purpose of the language in question. In this case the requirement is spent, because the applicant’s refugee application and appeal rights have been determined. She therefore remains a child whose “continued presence in Australia is subject to a limitation as to time imposed by law”. Any other reading would defeat the purpose of the requirement because it would enable children to evade the s 11 order merely by making a protection visa application on arrival, regardless of whether or not they had any genuine claims for refugee status. In my view that argument is cogent and the paragraph (iv) exclusion applies to the applicant.
56. It follows that the s 11 order prevents ss 4AAA, 4AA and 6 from applying to the applicant and thus the tribunal has no jurisdiction to entertain the application. For the reasons given above, I also reject the applicant’s submission that the minister’s reliance on the 1979 order when she made her decision of 15 April 2005 was itself a reviewable decision that would give this tribunal jurisdiction.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 24 March 2006
Date of Decision 3 April 2006
Counsel for the Applicant Mr M Robinson
Solicitor for the Applicant Mr A Joel
Solicitor for the Respondent Mr N Arora, Clayton Utz solicitors
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