FEDERAL COURT OF AUSTRALIA

Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516

MIGRATION - refugee - application for review of Tribunal decision - lodged out of time - objection as to competency - applicant a minor - effects on validity of application for protection visa - effectiveness of notification of Tribunal decision - question of fact - notification effective - objection as to competency made out.

Immigration (Guardianship of Children) Act 1946 (Cth) s 6, s 5, s 4AAA

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 475(1), s 478, s 486, s 485

Immigration (Guardianship of Children) Regulations 1946 reg 4

Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 985 cited

X v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 583 cited

Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 cited

Long v Minister for Immigration Local Government and Ethnic Affairs (1996) 65 FCR 164 followed

Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 cited

SYED MEHDI JAFFARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W145 OF 2001

FRENCH J

26 OCTOBER 2001

PERTH

THE COURT ORDERS THAT:

1.         The applicant's motions of 31 August and 13 September 2001 are dismissed.

2.         The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     A 15 year old boy claiming to be an Afghan national seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision to refuse him a protection visa.  His application for review of the Tribunal decision is said to have been lodged out of time.  His status as a minor is said to have implications for the validity of his original application, the application to the Tribunal and the application to this Court as well as the effectiveness of the notification of the Tribunal's decision.  In that connection it is said to give rise to obligations on the Minister as statutory guardian of unaccompanied non-citizen minors under the Immigration (Guardianship of Children) Act 1946 (Cth).  It is also said to give rise to obligations on the Director of the Western Australian Department of Community Development to whom the Minister has delegated his functions as statutory guardian.  The application is subject to an objection as to competency which goes to the jurisdiction of the Court.  That is critically dependent upon the effectiveness of the notification of the Tribunal's decision to the applicant from which it is said that time begins to run for the  purposes of defining the Court's jurisdiction to review the Tribunal's decision.

History of Proceedings

2                     The applicant is a young male who arrived in Australia by boat and without any authority on 17 December 2000.  He claimed to be a national of Afghanistan.  He applied for a protection visa on 1 January 2001 and was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 25 January.  He applied to the Tribunal on 2 February 2001 for a review of the decision.  On 15 March 2001, the Tribunal affirmed the decision not to grant him a protection visa. 

3                     On 3 May 2001, the applicant filed an application in the Court for review of the decision of the Tribunal.  The Minister has filed a notice of objection as to competency asserting that the application for an order of review was lodged more than twenty eight days after the applicant was notified of the Tribunal decision.  On this basis, it is said, the Court lacks jurisdiction to review the decision.

4                     It is not in dispute that the applicant is a minor.  His date of birth is said to be 1985, as shown on the record of his initial interview with an officer of the Department of Immigration and Multicultural Affairs following his arrival in Australia.

5                     On 26 July, I made an order that the proceedings could continue without the appointment of a tutor or next friend and that the respondent was not to seek any order for costs against any legal representative of the applicant by reason of the applicant's minority.  The hearing of the application was set down for 5 September to enable an application for legal aid to be pursued in relation to cognate proceedings in the Supreme Court of Western Australia concerning the appointment of legal representatives - Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 985.  Argument leading up to the making of those orders concerned the role of the Minister as the applicant's statutory guardian pursuant to s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) and what, if any, effect it had on the conduct of the case and the issue of representation.  The question in the end did not impact upon my conclusion that it was open to the applicant to proceed with the application without the appointment of a next friend or tutor, subject of course to the objection as to competency.

6                     The proceedings came on for substantive hearing on 5 September at which time the objection as to competency and the application for review were argued.  A notice of amended grounds of review was filed on 31 August 2001.   On the same day, counsel for the applicant filed a motion in these proceedings under s 39B of the Judiciary Act 1903 (Cth) for an order that the notice of objection to competency be struck out as an abuse of the Court and for other orders.  At the hearing on 5 September, affidavit evidence was received from a solicitor employed by the Australian Government Solicitor that, on 1 December 1999, the Minister, acting under s 5 of the Immigration (Guardianship of Children) Act had delegated certain of his powers and functions to specified office holders of the Western Australian Department for Family and Children's Services. That department is now known as the Department of Community Development.  The delegation was in the following terms:

"I, PHILIP RUDDOCK Minister for Immigration and Multicultural Affairs, acting under section 5 of the Immigration (Guardianship of Children) Act 1946 (the Act):

(1)       REVOKEthe instrument of delegation IGOC-DEL made under section 5 of the Act on 25 June 1998; and

(2)       DELEGATE TO EACH PERSON holding an office, or for the time being occupying or performing the duties of an office, specified in the attached Schedule  ALL MY POWERS and functions under the Act in relation to all matters and all classes of matters and all non-citizen children and all classes of non-citizen children EXCEPT:

            (a)        my powers as a guardian of a non-citizen child under section 6 of the Act insofar as they relate to the giving of consent to the adoption of a non-citizen child who was granted entry to Australia for reasons other than adoption; and

            (b)        my power under section 11 of the Act to direct, by order in writing, that the provisions of the Act should not apply to classes of children (that is, other than individual children).

Except as provided for above, this instrument does not affect the operation of any other instrument in which I have delegated my powers under any or all of the provisions set out above.

Dated 1 December 1999.

            Signature

Minister for Immigration and Multicultural Affairs"

7                     Office holders were designated for each State of Australia and for the Northern Territory and the Australian Capital Territory.  The office holders of the Department for Family and Children's Services in Western Australia to whom the Minister delegated his functions were the following:

"Director-General

Executive Director, Metropolitan Service Delivery

Executive Director, Country Service Delivery

Zone Manager North West Metropolitan

Zone Manager North East Metropolitan

Zone Manager South West Metropolitan

Zone Manager South East Metropolitan

Zone Manager Kimberly

Zone Manager Pilbara

Zone Manager Murchison

Zone Manager Goldfields

Zone Manager Southern"

8                     The affidavit evidencing the ministerial delegation was not served on counsel for the applicant until the evening before the hearing.  Counsel for the Minister had become aware of the delegation not much earlier than counsel for the applicant.  Counsel for the applicant foreshadowed a desire to seek leave to amend the notice of motion of 31 August and the grounds of review.  He also foreshadowed an application for an order that proceedings be served on the Director and the Director be joined as a second respondent.  This was based on the course adopted in X v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 583.  I directed, however, that the hearing should proceed so far as was possible on 5 September and thereafter be adjourned so that counsel for the applicant could make such further inquiries as might be needed with provision for relisting.  There was a short adjournment of fifteen minutes and the matter proceeded.  Two affidavits sworn by the applicant were confirmed by him under oath through an interpreter.  They were received as Exhibits 1 and 2.  The transcript of the proceedings before the Tribunal was also admitted, exhibited to an affidavit by Peter Corbould, a solicitor employed by the Australian Government Solicitor.  It was an agreed fact that in the course of the proceedings before the Tribunal the applicant broke down.  There was no cross-examination on the affidavit evidence and argument proceeded on the papers. 

9                     In the afternoon of 5 September, Nayantara Gupta, a senior legal officer with the Western Australian Department of Community Development attended and gave evidence, which was not disputed, about the implementation of the ministerial delegation.  She said there are at present two memoranda of understanding being negotiated between the Department of Immigration and Multicultural Affairs ("DIMA") and the Western Australian Department of Community Development in relation to unaccompanied minors who are applicants for protection visas.  One relates to unaccompanied minors released into the community on temporary protection visas.  The other relates to children in detention centres and predominantly concerns what she described as "child protection issues".  By that term she meant "…concerns expressed about the health, welfare and safety of children in detention centres; for example allegations of abuse".  There had been an arrangement in place whereby DIMA advised the Department of Community Development of the presence of unaccompanied minors at the Curtin Detention Centre in Derby.  That arrangement had ceased at the instigation of DIMA in mid-May.  The Department was still receiving notification of the arrival unaccompanied minors at the Port Hedland Detention Centre.  Ms Gupta was unable to provide any information about whether any system of reporting was in place to monitor the time spent by minors in the detention centres.  If a report were made to the Department about the condition of a particular child in detention, the Department would make contact with DIMA officers and make arrangements to assess the protection issues in respect of the child.  She was not aware of any role taken by the Director or any officer of the Department in relation to applications by unaccompanied minors for protection visas.  She agreed with the proposition that there is very little in the way of administrative procedures or guidelines for the implementation of the Minister's delegation by officers of the State Department.

10                  At the end of the hearing I reserved judgment subject to liberty to the applicant to apply to amend the motion which had been filed on his behalf.  Judgment was reserved, pro tem, to 5 October.

11                  The matter came on again on 27 September.  There had been filed on 13 September a notice of motion on behalf of the applicant to amend the motion previously filed on 31 August.  The amended motion sought to have the Director of the Department of Community Development named as a second respondent to the proceedings and a number of the orders  sought to be made as against both the Minister and the Director.  Written submissions were filed in support of the proposed amended motion on 27 September.  The judgment date was further deferred and additional written submissions were received on 4, 8, 15 and 23 October.

12                  In respect of the joinder of the Director of the Western Australian Department of Community Development it was submitted for the applicant that the welfare of children is a matter within the constitutional powers of the State and that the Instrument of Delegation was not exhaustive of the rights and duties cast upon the Director of the Department of Community Development.  Reference was made to a number of Western Australian statutes dealing with the welfare of children and to the United Nations Convention on the Rights of the Child in respect of which it was said that the applicant had a reasonable expectation that the Minister and Director would give him the further protection conferred by the provisions of that Convention.  It was submitted that the Court has a parens patriae jurisdiction which will support a variety of orders and orders of great width.  In the present case the applicant, an unaccompanied minor, had been in immigration detention for in excess of nine months.  In the circumstances it was said the Director of the Department of Community Development was under a duty to ensure that the applicant was treated in such a manner that he was not at risk and in accordance with the provisions of Australia's obligations to him under the terms of the international obligations to which this country is party.  The Director was said not to have performed that duty and that her response to the present proceedings indicated that she had no intention of performing that duty, absent a direction from the Court.  The Director was also said to owe a duty to the applicant to provide him with independent legal advice in respect of his immigration status.  The duty must lie with the Director taking into consideration the conflict of interest facing the Minister.  It was submitted that the appropriate course was to make the declarations sought by the applicant in the expectation that the Minister and the Director would reach an arrangement ensuring compliance with their legal responsibilities.  It was also submitted that the primary responsibility for the welfare of the applicant as a minor within the jurisdiction of the State of Western Australia lay with the Director.  On this basis it was appropriate that she should be joined in the present proceedings and made subject to the orders and declarations sought by the applicant.

The Amended Application

13                  The grounds of review in the amended application were in the following terms:

"The grounds of review are that the Tribunal:

1.         By failing to give any or sufficient weight to the Applicant's legal disability as an unaccompanied minor and subject to the provisions of section 6 of the Immigration (Guardianship of Minors) Act 1946 (Cth) before making a decision to affirm the refusal of a protection visa:

            1.1       made a decision which it did not have jurisdiction to make, and

            1.2       made a decision which it was not authorised by the Migration Act 1958 (Cth) ["the Act"] to make.

2.         Once having entertained doubts as to the Applicant's origin and nationality, by failing to have carried out a linguistic analysis which could have confirmed the Applicant's claims to have spent his life in Afghanistan prior to coming to Australia the Tribunal:

            2.1       made a decision which it did not have jurisdiction to make, and

            2.2       made a decision which it was not authorised by the Act to make.

3.         By failing to make a positive finding as to the Applicant's nationality before affirming the decision to refuse him a protection visa:

            3.1       made a decision which it did not have jurisdiction to make, and

            3.2       made a decision which it was not authorised by the Act to make, and

            3.3       made a decision where there was no evidence or other material to justify making the decision.

4.         By failing to invite the Applicant to comment upon particulars of the information which it considered would be part of the reason for affirming the decision under the review, namely that it did not accept that the Applicant came to Australia from Afghanistan and had lived all of his life in Afghanistan prior to coming to Australia, the Tribunal failed to comply with the provisions of section 424A of the Act, and failed to observe a procedure required to be observed in connection with the making of the decision.

5.         Having taken the Applicant's demeanour into account in assessing his credibility, by failing also to take into account the Applicant's breakdown, when giving evidence about the disappearance and death of his father, before reaching a decision to affirm the decision to refuse him a protection visa:

            5.1       made a decision which it did not have jurisdiction to make, and

            5.2       made a decision which it was not authorised by the Act to make.

6.         By failing to provide the Applicant with a translation of its reasons or to ensure that it was translated to him within 14 days of handing down its decision the Tribunal failed in the circumstances to of the case to comply with the provisions of section 430D(2) of the Migration Act and thereby failed to observe a procedure which the Act required to be observed."

The Notice of Motion

14                  Apart from an order that the notice of objection to competency be struck out as an abuse of the process of the Court, the motion filed on 31 August sought the following orders: 

"2.       That the Respondent consider and determine in accordance with law whether it is in the best interests of the Applicant that he be involuntarily removed from Australia.

3.         The Respondent seek the appointment by the Court of an appropriately qualified next friend to assist the Applicant in an application for a protection or other appropriate visa.

4.         The Respondent receive and consider any fresh application for a protection visa lodged by or on behalf of the Applicant and consider it according to law.

5.         The Respondent direct the release of the Applicant from immigration detention and place him in the care of the Director of the Department of Family and Social Services and provide him with a bridging or other appropriate visa.

6.         That the Respondent pay to the Applicant a reasonable weekly allowance the amount of which to be fixed by the Director of the Department of Family and Social Services.

7.         That the Respondent reimburse to the Applicant any amount paid to the Applicant or by any person on behalf of the Applicant in respect of any expenditure by him for which the Respondent is responsible as guardian.

8.         That the Respondent insure and keep insured the Applicant in respect of all medical treatment including psychological counselling which the Applicant might reasonably require."

15                  The motion also sought declarations as follows:

"9.       That the Applicant's application for a protection visa dated 1 January 2001 not having been approved by a parent or guardian of the Applicant is void and of no effect.

10.       That the Respondent has a duty to consider and determine independently of any entitlement to a protection visa whether it is in the best interests of the Applicant to be involuntarily removed from Australia.

11.       That the duties and obligations of the Respondent as guardian during the period of guardianship include:

            11.1     the provision and funding of accommodation for the Applicant;

            11.2     the provision and funding of all reasonable expenses in relation to the education of the Applicant in an appropriate educational facility;

            11.3     the provision and funding of all reasonable health and medical services including such psychological counselling as may be required;

            11.4     an obligation to provide such funding as may be necessary to ensure that the Applicant can live within and participate in the Australian community during the period of his guardianship."

Statutory Framework

16                  The grant of protection visas falls within the general statutory framework for the grant of visas for non-citizens.  These are dealt with in Division 3 of Part 2 of the Migration Act 1958 (Cth).  The Minister has general power under the Act to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29).  There are prescribed classes of visas under the Regulations as well as classes provided for specifically in the Act (s 31).  Criteria for visas of specified classes may be prescribed in the Regulations (s 31(3)).  Where an application is made for a visa it is to be considered by the Minister (s 47) and if satisfied that the criteria for the grant of a visa prescribed by the Act or Regulations have been met and that other conditions, which are not relevant for present purposes have been met, the Minister is to grant the visa.  If not so satisfied, the Minister is to refuse the grant (s 65).  Section 36 of the Act provides for the grant of protection visas.  It specifies as a criterion for a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s 36(2)).  This criterion is replicated in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa.  Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas.  Both include as a criterion that:

“…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention.”

The primary obligation which qualifies as a protection obligation arises out of Article 33 of the Refugees Convention.  Under that Article the Contracting States undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.  The obligation which is otherwise known as the prohibition against refoulement has two important elements:

1.         It operates in respect of refugees.

2.         It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason.

A refugee is defined in Article 1A(2) of the Convention as any person who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

17                  A non-citizen who wants a visa must apply for a visa of a particular class (s 45).  The Minister is required to consider a valid application for a visa (s 47(1)).  That requirement continues until the application is withdrawn or the Minister grants or refuses the visa sought or further consideration is prevented by other provisions of the Act not relevant for present purposes (s 47(2)).  The necessary conditions for a valid visa application are set out in s 46.  None of those conditions is relevant for present purposes.  In particular none requires that the applicant be an adult.

18                  Part 7 of the Migration Act deals with review of protection visa decisions.  A decision to refuse to grant a protection visa is reviewable by the Tribunal (s 411(1)(c)).  Applications for review to the Tribunal are made under s 412 of the Act and, if a valid application is so made, the Tribunal must review the decision (s 414).  The Tribunal in carrying out its functions under the Act is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420).  In so doing it is not bound by “technicalities, legal forms or rules of evidence” and is required to act “…according to substantial justice and the merits of the case”. 

19                  The Tribunal is required to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)).  This requirement does not apply in circumstances which are not relevant for present purposes.  The Tribunal is empowered under s 427 to, among other things, require the Secretary of the Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation (s 427(1)(d)). 

20                  The Tribunal is required to prepare a written statement of its reasons for decision in accordance with the requirements of s 430 of the Act.  If the applicant is in immigration detention, as is the case here, the Tribunal must give the applicant a copy of its statement of reasons within fourteen days after its decision is made (s 430D(2)).

21                  Part 8 of the Migration Act deals with the review of decisions by the Federal Court.  Section 475(1) defines as "judicially-reviewable decisions" the following:

"(a)     decisions of the Migration Review Tribunal;

(b)       decisions of the Refugee Review Tribunal;

(c)        other decisions made under this Act, or the regulations, relating to visas."

Decisions which are not "judicially-reviewable decisions" are defined in s 475(2) and include RRT-reviewable decisions.  Applications may be made for review by the Federal Court of judicially-reviewable decisions on any one or more of the grounds set out in s 476(1) of the Act.  Section 478 provides:

"(1)  An application under section 476 or 477 must:

(a)       be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

(b)       be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2)  The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application, outside the period specified in paragraph (1)(b)."

The jurisdiction of the Federal Court to deal with judicially-reviewable decisions is conferred by s 486:

"The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution."

That jurisdiction is intended to be exhaustive in respect of judicially-reviewable decisions as appears from s 485 which provides:

"(1)  In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2) or (3), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

(2)  Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

(3)  If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part."

22                  Under the provisions of the Immigration (Guardianship of Children) Act  the Minister for Immigration is the guardian of non-citizen children.  This is provided in s 6:

“6.  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.”

23                  The term “non-citizen child” is defined in s 4AAA, which provides:

“4AAA(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 s 4AA is in force in relation to the person.”

Section 4AA provides for a minor who 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 where the child intends to become, or is intended to become, a permanent resident of Australia.  In such a case the Minister, if satisfied that it is necessary in the interests of the child to do so, may direct in writing that the child be the Minister’s ward.  This must be done with the consent of the relative.  A non-citizen child is not to leave Australia except with the consent in writing of the Minister who shall not refuse to grant any such consent unless satisfied that its grant would be prejudicial to the interests of the non-citizen child (s 6A).  This section, however, does not affect the operation of any other law regulating the departure of persons from Australia (s 6A(4)).  The Minister may place a non-citizen child in the custody of a person who is willing to be the custodian of the child and is, in the opinion of the Minister, a suitable person to be that custodian (s 7).  The Act does not affect the operation of any provision of laws of any State or Territory relating to child welfare (s 8).  There is provision for exemption of certain children or classes of children from the Act by ministerial order (s 11).  No such order has been referred to by counsel for the Minister in the present case.

24                  Section 5 of the Act provides for the delegation by the Minister of his functions in the following terms:

"5(1)  The Minister may, in relation to any matters or class of matters, or in relation to any non-citizen child or class of non-citizen children, by writing under his hand, 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) so that the delegated powers and functions may be exercised by the delegate with respect to the matter or class of matters, or the child or class of children, specified in the instrument of delegation.

   (2)  Where, under this Act the exercise of any power or function by the Minister or the operation of any provision of this Act is dependent upon the opinion or state of mind of the Minister in relation to any matter, that power or function may be exercised by the delegate or that provision may operate (as the case may be) upon the opinion or state of mind of the delegate in relation to that matter.

   (3)  A delegation under this section shall be revocable at will, and no delegation shall prevent the exercise of any power or function by the Minister."

25                  The Immigration (Guardianship of Children) Regulations 1946 contain provisions relating to the effect of the child welfare laws of the various States and Territories.  Regulation 4 provides:

"4.  The provisions of the Child Welfare laws of any State under which children may be committed to the custody or care of any person or authority, or may become wards or State children, or wards or children of the State or of any department or authority of the State, shall not apply in relation to any non-citizen child in respect of whom the Minister has delegated his powers and functions under section 5 of the Act to an authority of any State but, in the case of any such child, a Minister of State of the State or of the Commonwealth, and the authority of the State, respectively, shall have, in relation to the child, the rights and powers exercisable by him or it in relation to a child who, in pursuance of those laws, is committed to the custody and care of any person or authority or becomes a ward or State child or a ward or child of the State or of any department or authority of the State."

The Evidence

26                  In his initial interview with an officer of the Department the applicant said he was 15 years old, having been born in 1985.  He was a shepherd from Afghanistan.  He had fled the country because his father, who supported the Wahdat, had been taken by the Taliban nine months before and had not been seen since.  His mother had been beaten by them.  She had paid $5,000 to his uncle to get the applicant out of the country.

27                  The applicant made an application for a protection visa which was prepared by a migration agent.  In that application he said he had two brothers and a sister living in Afghanistan with his mother.  In a statement attached to the application and in support of it, he said he was sent out of Afghanistan by his mother to save his life.  He had not been at home when his father was taken by the Taliban.  His paternal uncle had disappeared on a trip to Ghazni two years before.  The applicant said that the Taliban were taking young Hazara persons of his age to the front line for fighting in their war in Mazar and Kabul.  He used to go with the animals in the afternoon to find them places to graze and not return home until 8pm to 10pm at night in order to avoid arrest.

28                  The applicant said his mother sent him to her brother and gave him whatever money she had.  His uncle arranged everything with a smuggler.  The applicant entered Pakistan illegally and used a false passport to get to Singapore and Indonesia.  He said he was under the control of the smuggler at all times.  He claimed that if he were to return to Afghanistan he would be arrested at the official entry point and imprisoned or perhaps killed.  Otherwise he would be sent to their front line.

29                  The application to the Tribunal was supported by a written submission by the migration agent.  Most of the submission involved rebuttal of the delegate's findings adverse to the applicant.  He gave evidence at the hearing.

30                  The Tribunal observed that the applicant appeared to be unsophisticated and somewhat overawed by his situation.  Even taking these problems into account, the Tribunal found him not to be a very satisfactory witness.  He appeared to have a claim for refugee status which was based upon a core story.  But when asked about matters relating to those core aspects, he could not remember or did not know.  In the event, the Tribunal concluded that the applicant had fabricated his claim.  It was not satisfied that he was from Afghanistan at all.  However there was insufficient evidence for the Tribunal to determine where he came from. 

31                  An officer of DIMA, Greg Wallis, gave unchallenged evidence on affidavit in these proceedings that he gave the applicant a copy of the Tribunal's decision on 16 March 2001.  He had a standard practice which he followed, in this case, of advising the applicant through an interpreter that the Tribunal had decided not to grant him a visa and that he had twenty eight days in which to lodge an application with the Federal Court for review of the Tribunal determination.

32                  On about 2 May, the applicant made a written request to send a fax to the Federal Court.  His application for review was faxed to the Court on 3 May.  There is no record of any earlier request.

33                  In his affidavit, the applicant said that Mr Wallis told him he had been rejected.  He became upset and started crying.  He claimed Mr Wallis did not give him any papers and did not tell him anything about applying for review to the Federal Court.

34                  In my opinion it is more likely that Wallis did so advise the applicant and also advised him of the twenty eight day time limit.  It is quite possible that the applicant was so distressed at hearing that he was not to receive a visa, that he did not register the other things he was told.  The applicant said he did not get the reasons for decisions until some weeks later when he asked for them.  He said the decision had never been translated by anyone from DIMA. In other affidavit evidence he said he was in detention at the Curtin Detention Centre in Derby.  He said he had been given no assistance. 

The Objection as to Competency

35                  The threshold question in this case is whether the Court has jurisdiction to entertain the application for review of the Tribunal's decision.  If it does not, then it is difficult to see how it can embark upon the exercise of the jurisdiction invoked by way of the motions filed in these proceedings relating to the duties of the Minister and the State Director of Community Development.  The motions seem to raise matters distinct from those raised by the application itself.  In any event, in my opinion, the role of the Minister as statutory guardian does not affect his function as decision-maker in relation to the grant of visas to non-citizen children.  He is not their guardian for the purpose of advancing applications for such visas or initiating reviews of decisions made under such applications.  The very conflict that would arise if such a dual role were imposed on him indicates that it was not intended by the legislation.

36                  The Second Reading Speech for the Immigration (Guardianship of Children) Bill 1946 reinforces this view.  The stated purpose of the Act was "… to enable the Minister to act as legal guardian of all children who will be brought to Australia in future as immigrants under the auspices of any governmental or non-governmental migration organisation"  (Parl Deb H of R 31.7.46 p 3369).  Arrangements had been made prior to the enactment of the Act that "…the Commonwealth Minister would be the legal guardian of the children, and shall delegate his authority to the State departments" (Parl Deb H of R p 4090).  It is apparent that the Act did not contemplate the possibility of unaccompanied minors making applications for visas in circumstances which apply today. 

37                  There is nothing in the Migration Act to say that an unaccompanied minor cannot make a valid application for a visa and more particularly for a protection visa without the intervention of a guardian.  The question is one of factual rather than legal capacity.  A child who is assisted by a migration agent can make a valid application.   A child of tender years who is incapable of comprehending the nature of such an application would be incapable of making it with or without legal assistance.  It may be that in such a case questions would arise whether a duty to facilitate an application rested on the relevant State delegate.  The reality must, however, be kept in mind that unaccompanied minors seeking asylum are unlikely to be of such tender age as to be incapable of making a valid application if properly assisted.

38                  The application in the present case was a valid application for the purposes of the Act.  The applicant was properly assisted.  There is nothing to suggest that he did not understand the nature of the process which he was undertaking. Even if on some basis it had not been a valid application, that would not vitiate the Minister's decision to grant or refuse the grant of a visa.  A valid application is a necessary condition of his duty to consider such a grant.  It is not a condition of his power to do so.  That power is conferred by s 29 of the Migration Act.

39                  The related question, central to jurisdiction in this case, is whether the status of the applicant as a minor renders the notification to him of the Tribunal's decision ineffective so that time has not begun to run according to s 478.  The relevant law is to be found in the Migration Act 1958 (Cth) and the Immigration (Guardianship of Children) Act 1946 (Cth).  The jurisdiction of this Court to entertain an application for review of the Tribunal is defined by the Migration Act alone.  The duties of the Director of the Department of Community Development have no bearing upon that jurisdiction which is limited and defined by ss 485, 486 and 478 of the Migration Act.  No question of inconsistency between Commonwealth law and State laws relating to child welfare and protection arises and although questions of inconsistency have been agitated  outside the framework of the jurisdictional issue in the determination of that issue no question arises under the Constitution. 

40                  The jurisdiction of the Court to review a decision of the Tribunal is limited by the time within which applications to the Court have to be made under s 478.  The time limit there defined is not merely procedural.  It is jurisdictional, being expressed in mandatory terms in s 478(1)(b).  Section 478(2) adds nothing for it merely enjoins the Federal Court not to do that which it cannot do by virtue of  s 478(1)(b) - Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 and cases there cited.  The time runs from notification of the Tribunal decision.  That notification may be oral or written - Long v Minister for Immigration Local Government and Ethnic Affairs (1996) 65 FCR 164; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995.  There is nothing in the Act to say that a notification to an unaccompanied minor is not a notification for the purposes of the Act.  If the unaccompanied minor be of tender years then it may be, as a matter of fact, that no effective notification could be given for that word presupposes a giver and a receiver who can understand what it is that he or she has been told. As appears from the Shorter Oxford English Dictionary the relevant meaning of the word "notify" is "to give notice to; to inform"  Notification is not effective to a receiver who cannot understand it.  This no doubt has implications for those cases in which it can be shown as a matter of fact that the recipient of the notification did not comprehend what he or she was being told.  This may arise in a case of persons of tender years.  It may arise also in the case of persons under an intellectual disability.  It also has the consequence that notification must be in a language comprehensible to the recipient of the notification. 

41                  There is no doubt in the present case that the applicant was told of the Tribunal decision and understood its import.  He became distressed when he heard it.  I am also satisfied that he was told he had twenty eight days within which to lodge an application for review.  The status of the Minister as his statutory guardian under the Immigration (Guardianship of Children) Act does not in terms affect the conditions under which notification may be given and under which time begins to run for the purposes of an application to this Court.  It is simply too large a step to imply, in the case of an unaccompanied minor, who can at least understand the import of the notification, that the notification is to be read as ineffective unless given to a delegate of the Minister under the Immigration(Guardianship of Children) Act.  The surer construction is that notification is ineffective if unable to be understood by the juvenile applicant.  But that is not this case. 

42                  In my opinion therefore, notification was effected, the application for review in this Court was out of time and the Court lacks jurisdiction to entertain the application.  For these reasons the objection as to competency must succeed.  The Court wanting jurisdiction, the notices of motion fall away for the reasons I have already indicated.

Conclusion

43                  There are dangers in essaying, in the context of a particular application of a statute, general observations about its operation and administration.  It may be noted, however, that arrangements for the proper supervision of the welfare and protection of unaccompanied minors seeking asylum seem to be somewhat inchoate  with a presently ill-defined role on the part of the Director of Community Development notwithstanding that the current delegation has been in place for nearly two years.  Moreover there appears to be a significant discrepancy between the guidelines published by the United Nations High Commissioner on Refugees ("UNHCR") in respect of unaccompanied minors seeking asylum and the current administration of the Migration Act in relation to such persons.  The UNHCR guidelines on policies and procedures in dealing with unaccompanied children seeking asylum provide, inter alia:

"          Detention

7.6       Children seeking asylum should not be kept in detention.  This is particularly important in the case of unaccompanied children.

7.7       States which, regrettably and contrary to the preceding recommendation, may keep children seeking asylum in detention, should, in any event, observe Article 37 of the Convention of the Rights of the Child, according to which detention shall be used only as a measure of last resort and for the shortest appropriate period of time.  If children Asylum-Seekers in Europe who are asylum seekers are detained in airports, immigration-holding centres or prisons, they must not be held  under prison-like conditions.  All efforts must be made to have them released from detention and placed in other appropriate accommodation.  If this proves impossible, special arrangements must be made for living quarters which are suitable for children and their families.  The underlying approach to such a programme should be 'care' and not 'detention'.  Facilities should not be located in isolated areas where culturally-appropriate community resources and legal access may be unavailable.

7.8       During detention, children have the right to education which should optimally take place outside the detention premises in order to facilitate the continuance of their education upon release.  Under the UN Rules for Juveniles Deprived of their Liberty E-38, States are required to provide special education programmes to children of foreign origin with particular cultural or ethnic needs."

44                  In relation to refugee status determination for unaccompanied children, the following procedures are suggested:

            "Procedures

8.1       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.  All appeals should be processed fairly and as expeditiously as possible.

8.2       Minimum procedural guarantees should include determination by a competent authority fully qualified in asylum and refugee matters; where the age and maturity of the child permits, the opportunity for a personal interview with a qualified official before any final decision is made; and a possibility to appeal for a formal review of the decision.

8.3       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.  Access should also be given to a qualified legal representative.  This principle should apply to all children, including those between sixteen and eighteen, even where application for refugee status is processed under the normal procedures for adults.

8.4       The interviews should be conducted by specially qualified and trained representatives of the refugee determination authority who will take into account the special situation of unaccompanied children, in order to carry out the refugee status assessment.

8.5       An asylum-seeker or his/her legal representative should be able to seek a review of the decision.  Appropriate deadlines should be set out for a child to appeal a negative decision.  Every effort should be made to reach a decision in an efficient manner in order not to keep children in limbo for a long period of time regarding their status and their future.  All appeals should be processed fairly and as expeditiously as possible.  This may require children's appeals to be prioritized over other outstanding appeals."

There is much else besides.  The question of unaccompanied minors seeking asylum is a pressing, current issue.  On the evidence before me it was said there are currently about thirty such children in the Curtin Detention Centre alone.  While this case has been decided adversely to the applicant on the facts that is the result of applying the statute, properly construed, to the evidence before the Court.  The Act provides little in the way of the kinds of protections contemplated by the UNHCR guidelines.  At the very least, there is a case for considering the provision of legal advice and assistance to unaccompanied minors up to and including the point of judicial review.  It is of concern that the application for judicial review in this case was lodged by a 15 year old non-citizen and lodged out of time thus depriving him of such limited rights of review as he would otherwise have enjoyed.

45                  For the reasons previously stated, the objection to competency is made out and the application will be dismissed.  I do not propose to make any order as to costs.

Associate:

Dated:              26 October 2001