FEDERAL COURT OF AUSTRALIA

DKB18 v Minister for Home Affairs [2018] FCA 1465

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The respondent pay 50 percent of the applicants’ costs of the proceeding, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    Immediately prior to the last business day before the hearing of this proceeding, there were two primary issues. The first was whether the Minister for Home Affairs is the guardian of two minor children (known by the pseudonyms DKB18 and DKL18 respectively) who travelled to Australia by boat from Indonesia together with their father (known by the pseudonym DKC18). This issue primarily turns on the proper construction of relevant provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act) and, in particular, whether the children fit within the definition of a “non-citizen child” within the meaning of s 4AAA of that legislation.

2    The second central issue at that time was whether mandamus should issue to the Minister to compel the determination of a protection visa application lodged by the father on 13 October 2016 and which remained undetermined when the proceeding was commenced in late June 2018. This second issue fell away because, late on 31 August 2018 (i.e. the last business day before the scheduled hearing), a decision was made to refuse the father a protection visa. The parties agreed that, in view of this development, the second issue did not need to be determined but that it was relevant to costs (see further below).

Summary of background facts

3    Even though the second central issue has been removed, it is desirable to provide a relatively detailed summary of the background facts and events which have given rise to the proceeding, which can only be described as tragic and disturbing.

4    DKB18 and DKL18 are now aged 12 and 11 years respectively. All three applicants are citizens of Iraq. All three applicants are unauthorised maritime arrivals as defined in s 5AA of the Migration Act 1958 (Cth) (Migration Act). The circumstances surrounding their arrival in Australia may be outlined as follows.

5    At 2204 hours AEDT on 14 December 2012, the family were on board a vessel in distress approximately 55 nautical miles north-east of Christmas lsland. HMAS Maryborough provided assistance. The 54 persons on the distressed vessel, including the family, were taken on board HMAS Maryborough in the early hours of 15 December 2012. The distressed vessel was then destroyed by the crew of HMAS Maryborough and all on board were conveyed to Christmas Island. By 1100 hours AEDT on 15 December 2012 all of the 54 persons were transferred to Australian Government agencies on Christmas Island. On the same day, the family was placed in immigration detention pursuant to s 189(3) of the Migration Act.

6    The family was then transferred to various detention centres, including in Darwin.

7    On 15 April 2015, DKB18 (who was then aged 9) was sexually assaulted by another detainee whilst in immigration detention in Darwin. The alleged perpetrator was charged with four counts of sexual intercourse with a child under 16 years.

8    On 6 August 2015, the Minister made a Determination under s 197AB of the Migration Act in relation to the two children to the effect that, instead of being retained in “immigration detention” they should be transferred to “community detention”. Following this Determination, the two children have since lived separately and apart from their father, who has remained in immigration detention.

9    On 12-14 August 2015, the family was relocated to Sydney. The father and the two children travelled separately. The children were permitted to reside in community detention (without their father) and, since then, they have been in the care of various organisations with the involvement of the NSW Department of Family and Community Services.

10    On 29 September 2015, the Minister made a determination under s 46A(2) of the Migration Act that the prohibition on the family making a valid visa application be lifted. On 14 June 2016, the applicants were invited to apply for temporary protection visas. Thereafter, on 13 October 2016, the family made a combined application for the grant of temporary protection visas with the father being the principal applicant.

11    On 22 March 2017, the application for the temporary protection visas was refused by the Minister’s delegate. This decision was automatically referred to the Immigration Assessment Authority (IAA) pursuant to Pt 7AA of the Migration Act.

12    On 13 April 2017, the family’s representative made submissions to the IAA on the referral.

13    On 10 May 2017, the IAA determined that it would remit the application by the family for the grant of temporary protection visas to the Department for further consideration. This decision included a direction that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the referred applicants being removed from Australia to a receiving country, there was a real risk that each of the referred applicants will suffer significant harm.

14    In view of the decision made on 31 August 2018, it is now unnecessary to provide a detailed account of what happened during the period 21 June 2017 to 31 August 2018, other than to note the following matters. On the first of those dates, the father was notified by the Department that consideration was being given to whether his protection visa application should be refused under s 501(1) of the Migration Act. Submissions were made in response on behalf of the father.

15    On 19 December 2017, the children were granted temporary protection visas which will cease on 19 December 2020. On 6 April 2018, the Minister exercised his power under s 46A(2) of the Migration Act to permit the children to apply for further temporary protection visas or safe haven enterprise visas before the expiry of their present temporary protection visas.

16    On 7 March 2018, the father received a further letter from the Department concerning the potential refusal of his application under s 501(1) of the Migration Act and additional submissions were made on his behalf in response.

17    As noted above, the father’s protection visa application was rejected by a delegate late on 31 August 2018.

18    On 29 June 2018, the applicants filed an originating application in this Court seeking urgent orders. The proceedings came before Rares J on that day. The Court ordered inter alia, that the Minister forthwith take all steps necessary to be done to provide reasonable living arrangements and care for each of the children up to and including 2 July 2018 pursuant to his duty and obligation as their guardian under s 6(1) of the IGOC Act. The proceedings were adjourned for a further case management hearing on 2 July 2018.

19    On 2 July 2018, Thawley J made further directions, including that the applicants file and serve an amended originating application. This was done on 16 July 2018. The case was set down for hearing on 3 September 2018.

The relevant statutory provisions

20    At the relevant time (15 December 2012), s 6(1) of the IGOC Act provided (emphasis added):

6    Guardianship of non-citizen children

(1)    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 parents 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.

…

21    Section 4AAA of the IGOC Act provided as follows:

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.

22    Section 4 of the IGOC Act contained the following further definitions:

non-citizen means a person who is not an Australian citizen.

non-citizen child means a person who is a non-citizen child under subsection 4AAA(1) or (4).

parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975.

23    Under s 2B of the Acts Interpretation Act 1901 (Cth) (Interpretation Act):

Australia means the Commonwealth of Australia and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.

Note:    See also section 15B.

24    Section 15B of the Interpretation Act provided:

Application of Acts in coastal sea

Coastal sea of Australia

(1)    An Act is taken to have effect in, and in relation to, the coastal sea of Australia as if that coastal sea were part of Australia.

(2)    A reference in an Act to Australia, or to the Commonwealth, is taken to include a reference to the coastal sea of Australia.

Coastal sea of external Territory

(3)    An Act that is in force in an external Territory is taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea were part of the Territory.

(3A)    A reference in an Act to all or any of the external Territories (whether or not one or more particular Territories are referred to) is taken to include a reference to the coastal sea of any Territory to which the reference relates.

Definition

(4)    In this section, coastal sea:

(a)    in relation to Australia, means:

(i)    the territorial sea of Australia; and

(ii)    the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and

(b)    in relation to an external Territory, means:

(i)    the territorial sea adjacent to the Territory; and

(ii)    the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.

The applicants’ submissions summarised

25    In support of their application for declaratory relief that the children were both a “non-citizen child” within the meaning of s 4AAA of the IGOC Act (with the consequence that the Minister is their guardian), the applicants submitted that they came to Australia when they crossed the 12 nautical mile limit offshore Christmas Island. In support of that submission, they relied upon s 7 of the Seas and Submerged Lands Act 1973 (Cth) and Proclamation No S297 which was published in the Commonwealth of Australia Gazette of 13 November 1990. The Proclamation relevantly provided that, apart from parts of the territorial sea referred to in the Schedule, “the outer limit of the territorial sea of Australia is 12 nautical miles measured from the baseline established under international law or as otherwise determined by Proclamation under section 7 of the Seas and Submerged Lands Act 1973”.

26    The Schedule to that Proclamation referred to certain islands in the State of Queensland and to other islands which were described in Sch 8 to another Proclamation dated 4 February 1983 made under s 7 of the Seas and Submerged Lands Act. There is no reference to Christmas Island in Sch 8. Accordingly, the applicants submitted that the effect of all these provisions was that they came to Australia when they crossed the 12 nautical mile limit offshore Christmas Island.

27    The applicants submitted that, as at 15 December 2012, the relevant provisions of the Migration Act provided as follows:

(a)    Section 5 defined the migration zone relevantly as the area consisting of the States, the Territories, Australian resource installations and Australian sea installations.

(b)    Under s 5, the Territory of Christmas Island was an express excised offshore place even though it was still in the migration zone.

(c)    Section 14 provided that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(d)    Each of the family was an offshore entry person under s 5 and an unlawful non-citizen under s 14.

(e)    Section 189(2) provided that an “officer” as defined was obliged to detain a person if the officer reasonably suspects that a person in Australia but outside the migration zone: (a) is seeking to enter the migration zone (other than an excised offshore place); and (b) would, if in the migration zone, be an unlawful non-citizen.

(f)    Section 189(3) provided that an officer must detain a person if the officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen.

28    They further submitted that the phrase “in the charge of” in s 4AAA(2) of the IGOC Act should be given its natural meaning of “having responsibility for”, “under the care of”, “having the responsibility, control or supervision of” or “under the control or supervision of; in the custody of”, citing the Collins On-line Dictionary.

29    The applicants submitted that given that all three of them were liable to detention and were, in fact, immediately detained, the father lost the ability to be in charge of his children when they were all taken on board HMAS Maryborough. They submitted that, instead, from then onwards all decisions relating to health, welfare, living arrangements, freedom of movement, access to school, communications, and family location and separation were necessarily made by the Minister.

30    The applicants further submitted that they were placed in immigration detention upon their arrival at Christmas Island. Accordingly, they submitted that DKB18 and DKL18 were not in the charge of DKC18 when they arrived in Australia for the purposes of s 4AAA(2) of the IGOC Act. They were brought to Australia for the purposes of being detained. Nor could they be said to have entered Australia for the purposes of living in Australia under the care of DKC18. DKC18 was in no position to provide care. He had no capacity to provide for DKB18 and DKL18 to live with him. He himself was in the charge of the Australian Customs and Border Protection Service and the Australian Federal Police, and he was immediately delivered into the custody of the Department of Immigration and Citizenship and he has remained in that custody ever since.

31    The applicants submitted that, as originally enacted in 1946, the IGOC Act was intended to serve the dual purpose of continuing past arrangements for the Minister to act as the legal guardian of British children who had been evacuated to Australia for the duration of World War II, as well as vesting in the Minister an “overriding legal guardianship” in respect of children to be brought to Australia in the future “under the auspices of any governmental or non-governmental migration organisation”. In relation to the latter, s 6 of the IGOC Act relevantly provided for the Minister to be the guardian of every “immigrant child” who arrived in Australia after its commencement. “Immigrant child” was defined in s 42 to mean (relevantly) “a person under the age of twenty-one years who comes to Australia as an immigrant otherwise than in the charge of, or for the purposes of living in Australia under the care of, any parent or relative of that person”. On the occasion of its amendment in 1948, the object of the Act was described by the Minister as being “to ensure that any immigrant children brought to Australia were properly accommodated and cared for until they reached twenty-one years of age”.

32    In 1948, the IGOC Act was amended to provide for the Minister to act as the guardian of the estate as well as the person of an immigrant child. Amendments were also made to s 7 of the IGOC Act in order to enable an immigrant child to be placed in the custody of any person (rather than limiting such custodians to persons representing an approved authority or organisation).

33    In 1952, amendments were made to the definition of “immigrant child” in s 4 of the IGOC Act to ensure that the definition covered minors who came to Australia to join relatives who were under 21 years of age.

34    In 1983, amendments were made replacing the term “immigrant child” with “non-citizen child”. The definition of “non-citizen child” was further amended in 1985, along with the addition of s 4AA which conferred power on the Minister to make guardianship orders in respect of non-citizen minors who entered Australia in the charge of or for the purpose of living under the care of a parent or relative aged 21 or more (for example, in the case of a subsequent breakdown in those care arrangements).

35    In 1994, the Immigration (Guardianship of Children) Amendment Act 1994 (Cth) inserted s 4AAA into the IGOC Act which contains the current definition of “non-citizen child”. The applicants contended that notwithstanding that the IGOC Act was originally enacted in a different historical context, the provisions relating to the guardianship of non-citizen children are capable of application to unaccompanied minors seeking asylum in Australia. This was noted during the Parliamentary Debate on the Bill in the course of which it was observed that the Minister has guardianship under the IGOC Act of “unaccompanied refugee minors”. In the Second Reading Speech in the House of Representatives on 3 March 1994 it was noted that (without alteration):

Presently, the act places certain non-citizen children entering Australia under the guardianship of the Minister for Immigration and Ethnic Affairs, principally these being...children who enter Australia as unaccompanied refugee minors.

36    The applicants submitted that this principle was recognised in Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 (Odhiambo), in which the Full Court said at [87]:

Although it is clear that the legislation was conceived as a way of ensuring adequate oversight of the welfare of children who had been, or would be, brought to Australia under voluntary migration schemes sponsored by social welfare organisations and church bodies, it was drafted in wide terms. As counsel for the Minister acknowledged, the enacted legislation extends also to children who come to Australia as asylum-seekers.

37    DKB18 and DKL18 were and are unaccompanied refugee minors. The applicants submitted that it makes no difference to the purpose of the IGOC Act, which is a child welfare statute, if the separation from the parents occurred when they left the country of origin, or in this case by reason of the father being detained in immigration detention. DKB18 and DKL18 hold temporary protection visas. It is not possible for them to live with their father. They have not yet become members of the Australian community. They are not in the charge of their parent. Accordingly, it was submitted that the Minister is the guardian of the children under s 6 of the IGOC Act.

38    The applicants further submitted that the purpose for which they were brought to Australia is provided by the Migration Act. Section 198AD provided as follows:

198AD    Taking offshore entry persons to a regional processing country

(1)    Subject to sections 198AE, 198AF and 198AG, this section applies to an offshore entry person who is detained under section 189.

Note:    For when this section applies to a transitory person, see section 198AH.

(2)    An officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to a regional processing country.

…

39    The applicants submitted that, from the date the family was intercepted on the open sea up to and including their detention on Christmas Island, the family was under the control of the Australian Customs and Border Protection Agency. The applicants submitted that the objective purpose in the family coming to Australia was for the purpose of them being detained and thereafter being taken to a regional processing country – subject only to the possibility that the respondent might exercise his discretion under s 46A to enable them to make a visa application. On this basis, the applicants submitted that DKB18 and DKL18 cannot be said to have entered Australia in the charge of, or for the purposes of living in Australia under the care of their parent with the consequence that they were each a non-citizen child for the purposes of the IGOC Act.

The Minister’s submissions summarised

40    For reasons given above, it is no longer necessary to summarise the Minister’s submissions concerning the alleged unreasonable delay in determining the father’s visa protection application.

41    As to the other primary issue, the Minister accepted that the children satisfied the requirements of the definition of a “a non-citizen child who enters Australia as a non-citizen” under s 4AAA(1), but he submitted that the children were covered by the exceptions in s 4AAA(2), with the consequence that the Minister was not their guardian under s 6(1) of the IGOC Act. The Minister accepted that the family had “entered” the Territory of Christmas Island when HMAS Maryborough crossed into the territorial sea adjacent to the Territory 12 nautical miles offshore, applying in part the definition of Australia in s 2B of the Interpretation Act (and also noting that the word “Australia” was not defined in the IGOC Act when the family entered Australia).

42    The Minister’s primary submission was that, at this point in time of the family’s entry to Australia, the children were both “in the charge of” their father and they also entered Australia “for the purposes of living in Australia under the care of their father”.

43    In support of this primary contention, the Minister highlighted the significance of the practical consequences under that legislation of a child being a “non-citizen child”. In particular:

(a)    by operation of s 6(1) of the IGOC Act, the Minister becomes the guardian of the person and estate of every non-citizen child “to the exclusion of the parents and every other guardian of the child”;

(b)    by operation of s 6A(1), the child is prohibited from leaving Australia without the Minister’s consent; and

(c)    under s 7, the Minister may place the child in the custody of a person selected by the Minister and may remove the child from that person’s custody.

44    The Minister submitted that acceptance of the applicants’ contention that the children are “non-citizen children” would mean that their father does not have, and would not have even if he were released from immigration detention after being granted of a visa, any of the ordinary powers that a parent would have in respect of their children. Nor would the father be able to take his children with him if he chose to leave Australia without first obtaining the Minister’s consent. Moreover, the Minister alone would decide whether or not the father could have custody of his children.

45    Having regard to these “unlikely consequences”, the Minister submitted that the preferred construction and application of s 4AAA(2) in the circumstances here is that the children did not have the status of “non-citizen children”.

46    The Minister relied upon the following additional matters. First, when the children entered Australia they were in their father’s charge within the ordinary meaning of that term. They were not detained until they arrived at Christmas Island. They remained in the charge of their father after they boarded HMAS Maryborough, just as they were in his charge when they travelled with him in the boat from Indonesia. The Minister contended that if the children had required medical treatment while on board HMAS Maryborough, their father and not the Captain of the ship would give the requisite consent. The Minister relied upon North J’s observations in X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; 92 FCR 524 (X) at [45], where his Honour said “children will not fall within the definition of non-citizen children unless they have arrived in Australia without parents or without adults to care for them in Australia”.

47    Although the Minister’s primary submission was that the relevant point in time for determining the issue was when the children entered Australia and that it is immaterial for the purposes of s 4AAA(2) to have regard to what occurred thereafter, he submitted that if regard was had to subsequent events they indicated that the father viewed himself as still being in charge of his children after the family entered Australia. This was reflected, for example, in the fact that the father listed the children as his dependent children when he applied for a temporary protection visa.

48    Secondly, the Minister contended that, when the children entered Australia, they did so for the purposes of living here under their father’s care, as is reflected in the fact that, at that time, the children were aged 6 and 5 respectively. The Minister submitted that it would be wrong to characterise the purpose of their entry as being for the purpose of being detained or being taken to a regional processing country, as submitted by the applicants. Those were the consequences of their entry into Australia as unlawful non-citizens and were not the purpose for which the children entered Australia.

Consideration and disposition of the amended application

49    For the following reasons, I reject the applicants’ submission that the children are “non-citizen children” within the meaning of s 4AAA of the IGOC Act, with the consequence that the Minister would be their guardian under s 6(1) of the IGOC Act.

50    The contemporary approach to statutory construction in Australia is relatively well settled. It is reflected in the following passage from the joint judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] (footnotes omitted):

14.    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

51    Sub-section 6(1) of the IGOC Act refers to the Minister being the guardian of every non-citizen child who “arrives in Australia”. The definition of a non-citizen child in s 4AAA(1) refers to a child who “enters” Australia as a non-citizen and who intends, or is intended, to become a permanent resident of Australia. It was common ground that the phrases “arrives in Australia” and “enters Australia” are synonymous. I agree.

52    I accept the Minister’s submission that, in determining whether a child is a non-citizen child, the relevant point in time is the time when the child enters or arrives in Australia as a non-citizen. That is consistent with the grammatical expression of those terms in ss 4AAA(1)(b) and 6(1) respectively, noting also the use of the term “enters” in s 4AAA(2).

53    The relevant issue here therefore is whether or not, when they entered Australia as non-citizens, the children either:

(a)    were in the charge of their father; or

(b)    entered Australia for the purposes of living here under the care of the father.

54    It is common ground that the children entered Australia while they were on board HMAS Maryborough and when that ship crossed into the territorial sea adjacent to the 12 nautical miles offshore Christmas Island.

55    The ordinary meaning of the phrase “in charge of” in this context is reflected in the following meanings given by the Macquarie Dictionary:

22. a duty or responsibility laid upon or entrusted to one. 23. care, custody, or superintendence: to have charge of a thing. 24. anything or anybody committed to one’s care or management.

56    I accept the Minister’s position that, when the children entered Australia, they were in the charge of their father. Having regard to their ages at the time and the fact that they were physically in his company, he was their primary carer. This conclusion is not avoided because the Captain and crew of HMAS Maryborough also had responsibilities and duties to the children as passengers on that ship which rescued the passengers on the distressed vessel near Christmas Island.

57    The Minister’s submission that, when the children entered Australia, they did so for the purposes of living in Australia under their father’s care should also be accepted. This is necessarily implicit in the fact that they were aged only 6 and 5 years old at that time and they were brought to Australia by their father with the plain intention of living in Australia under his care. I reject the applicants’ submission that their purpose in coming to Australia was for the purpose of being detained under migration legislation. There is no evidence to support that submission.

58    Neither of the alternative limbs in the chapeau to s 4AAA(2) turns on the children’s subjective intentions. Rather, both limbs are objective. This is understandable given that the provision operates by reference to children who have not turned 18 and, in the case of children as young as those here, they would be incapable of caring for themselves when they entered Australia.

59    Incidentally, presumably this is also the reason why there is both a subjective and a non-subjective element in s 4AAA(1)(c), where an essential element of a child being a non-citizen under the terms of that provision is that the child “intends, or is intended, to become a permanent resident of Australia”. The phrase “or is intended” accommodates circumstances where, in the case of children as young as those here, it is improbable that they subjectively would have any intention to become a permanent resident of Australia in the legal sense. Rather, that concept acknowledges the situation where someone else vicariously intends that a child for whom they have responsibility become a permanent resident of Australia, as occurred here with the father of the two children.

60    I do not accept the applicants’ contention that the statutory provisions in s 4AAA(2) should be construed as having no application where it is claimed that, although the children are in the physical company of a parent when they entered Australia, the children were not truly “in the charge of” that parent because they were under the control of the Captain and crew of HMAS Maryborough and/or the Australian Customs and Border Protection Agency. There are several difficulties with that submission.

61    First, the family was not detained for the purposes of the Migration Act until they arrived at Christmas Island and after they had entered Australia in the legal sense. Secondly, merely because at the time of their entry into Australia, people such as the Captain and crew of HMAS Maryborough had a degree of control over the children because they were passengers on board that ship, does not mean that they were no longer in the charge of their father (or, indeed, that the children did not enter Australia for the purposes of living here under the care of their father). The position would be no different if the children had travelled with their father to Australia by aeroplane. As passengers, they would be obliged to carry out lawful instructions from the Captain and crew of the aeroplane. That would not mean that the children ceased to be in the charge of their father.

62    It is important not to lose sight of the fact that the relevant issue falls to be determined at the point in time when the children entered or arrived in Australia. The central issue is whether they were under the charge of their father at that particular point in time. In my respectful view, that can admit of only one answer in the particular circumstances of this case. The applicants’ reference to the fact that, after the family was taken on board HMAS Maryborough, all decisions relating to health, welfare, living arrangements, freedom of movement, access to school, communications, and family location and separation were necessarily made by the Minister is not to the point. Those are matters which arose subsequent to the family’s entry into Australia and after they were detained in accordance with the requirements of the Migration Act.

63    It may be accepted that when the IGOC Act was originally passed in 1946, it had the dual purpose of:

(a)    enabling the Minister for Immigration to continue to act as the legal guardian of overseas children who remained in Australia after the cessation of the National Security (Overseas Children) Regulations; and

(b)    enabling the Minister to act as legal guardian of all children who would be brought to Australia thereafter as immigrants under various migration schemes.

64    Those dual purposes are identified in the Second Reading Speech to the Bill. It is also to be noted that the following statement appears in that Second Reading Speech at that earlier time:

It will be observed that the proposed legislation does not apply to immigrant children who come to Australia with, or for the purpose of living under the care of, their parents or relatives.

65    The current definition of “non-citizen child” was inserted into the IGOC Act in 1994. There is a statement in the Second Reading Speech to that Bill which is set out in [35] above to the effect that the legislation placed certain non-citizen children who enter Australia under the guardianship of the Minister for Immigration and that “principally these [are]… children who enter Australia as unaccompanied refugee minors” (emphasis added). The reference to “principally” is important. There is nothing in this later Second Reading Speech to suggest that it was intended that children who entered Australia accompanied by a parent and in circumstances of the kind which occurred here would be under the guardianship of the Minister for Immigration. In any event, even if there were, effect has to be given to the plain text of the provision.

66    The obiter observations of North J in X are not inconsistent with this view. It is important to note that his Honour was dealing there with two minor children who entered Australia as stowaways on a ship and were unaccompanied by a parent. The issue was whether proceedings commenced by the minors in relation to the refusal to grant them protection visas and to enforce the Minister’s obligations to them as guardian under s 6 of the IGOC Act required the appointment of a tutor. It was in this particular factual context that North J made the following obiter observations at [45]:

45.    Children will not fall within the definition of non-citizen children unless they have arrived in Australia without parents or without adults to care for them in Australia: s 4AAA of the Act. Such children are thus, characteristically, without adult support in Australia. A requirement that they find adult support in order to enforce their legal rights to proper care is contrary to the purpose of s 6. The section is plainly aimed at providing protection for the interests of children who are particularly alone, isolated and often in frightening circumstances. Not only is this evident from the context of the section, but in the Minister’s Second Reading Speech relating to the introduction of s 4AAA in 1994 he explained that:

Presently, the Act places certain non-citizen children entering Australia under the guardianship of the Minister for Immigration and Ethnic Affairs, principally these being children who enter Australia for adoption (including those children who have been adopted overseas but whose adoption is not recognised in Australia) and children who enter Australia as unaccompanied refugee minors. (emphasis in original)

67    That provides a sufficient basis for dismissing the amended application. For completeness, however, I can indicate that I would accept the Minister’s submissions, as summarised in [43] to [45] above regarding the unlikely consequences which would flow from acceptance of the applicants’ construction. The legitimacy of this approach to the task of statutory construction is well established (see, for example, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at [23]-[26] per Mason and Wilson JJ).

The issue of costs

68    The parties were agreed that, in the event that the applicants failed on the guardianship issue and taking into account the circumstances surrounding the belated determination of the father’s protection visa application, the appropriate order is that the Minister pay 50 percent of the applicants’ costs of the proceeding, as agreed or assessed.

Conclusion

69    For these reasons, the amended originating application will be dismissed and an order for costs will be made in the terms agreed by the parties.

Associate:

Dated:    27 September 2018