AILS – Page 6 – Australian Immigration Law Services

WHY IS AUSTRALIA DEPORTING AUSTRALIAN CITIZEN CHILDREN?

Australia is a country that prides itself on its commitment to respecting the rights and interests of everyone, especially rights and interests which support Australian citizens’ children and their futures. While this statement is realistic on many fronts, what is hidden from the community is when the Immigration Ministers decides to deport non-citizen parents who are then, in turn, forced to take their Australian citizen children with them. This is despite the fact these Australian children, in most cases, are more than 10 years old, were born in Australia and knew only Australia as their home.

Make no mistake about this, The Australian Human Rights Commission report in 2013 in the matter of Paul family v Commonwealth of Australia (Department of Immigration and Citizenship) clearly outlined that when the department deport the parents of Australian citizen children, the department was effectively deporting the Australian citizen child with them, and it is unlawful and not served the best interest of the child. In this report in 2013, the AHRC stated that ‘I find that a requirement that Master Paul’s parents leave Australia, or any act of seeking to remove them from Australia, would not be in the best interests of Master Paul and would be inconsistent with the complainants’ right not to be subject to arbitrary or unlawful interference with their family. Such a requirement or act would be inconsistent with or contrary to article 3 of the CRC and articles 17 and 23 of the ICCPR’.

Yes, the government will respond by saying there is no policy that Australia deports Australian Citizen children, but this will be a perverted distortion of what takes place. We need to ask ourselves; do we want an Immigration Department that twists the truth and the reality of the consequences of its actions, or do we want open transparency and solutions to a serious problem that is psychologically causing serious harm to our citizens. Not just any citizens either, the children who are the most vulnerable.

Sadly, We have seen the abandonment of Australian citizens overseas during the pandemic. It raised the question in most of our minds, then what does it mean to a citizen of this country? Does this government really care about us or are we just expendable? Now more than ever is the time the government needs to step forwards and protect Australian citizens at all costs. It is pointless to beat the war drums and cite national security when we can’t even look after ourselves. The Australian military has one of the greatest reputations in the world for never leaving a fallen comrade behind. For the rest of us civilians, do we matter?

So how is this happening under our noses? Well, it begins with Citizenship in Australia can be obtained through the 10^th birthday provision. This means that a child born to parents who were not permanent residents or citizens in Australia would become a citizen after completing their 10^th birthday as long as they had their usual residence in Australia during these ten years. Suppose the parents do not have a lawful visa to remain in Australia. In that case, the Department will request the parents to leave the country regardless of the impact on the Australian citizen child. The child has already adapted to Australia’s culture, community, lifestyle, and way of life by this time. One cannot simply imagine the emotional and psychological impact an over 10-year-old child would have by this sudden change. In many cases, unfortunately, since the parents do not have a lawful visa, the child is also left with no other choice but to leave their home in Australia, which is unreasonable and unfair.

To prevent these impacts and life-changing experiences, parents always seek assistance from the Department and the Minister. In some cases, the Minister uses their power to change the decision and allow the parents to apply for a Visitor (subclass 600) visa to allow them to stay in Australia to apply for a Parent (subclass 103) visa they meet the eligibility criteria. On the other hand, the outcome is different in most cases, where the Minister refuses to intervene and the parents have to leave Australia. Ultimately the Australian Citizen child is forced to leave their home in Australia, which will impact the right and best interest of the child.

The Migration Act has given the power to the Minister of Home Affairs to intervene in matters where the Minister thinks it is in the public interest to do so. Unfortunately, there are matters the Minister decided not to intervene in, even when the rights, best interests and futures of Australian citizen children were at stake. While it can be said that the Minister is obligated to follow the policies and procedures and this is the only way, would the Minister consider the most significant and primary factor, the impact on a child, before deciding not to intervene? And another question is that if the Minister can not intervene, has the Minister taken all the reasonable measures to find an alternative solution, especially where the rights, best interests and futures of Australian citizen’s children are at stake?

The most important question is how the Minister is supposed to use the power vested in him? Unfortunately, as said in most cases, the Minister would refuse an application to intervene, jeopardising the life of an Australian citizen child and deporting them by stealth. It is the utmost responsibility of the Minister to intervene in matters where it is in the public interest to do so. What could be more public interest than a risk toward an Australian citizen’s child’s rights and best interests? As we have discussed in more detail, the Minister and all government decision-makers must consider the guidelines of the international conventions and the guidelines of the Australian Human Rights Commission Act 1986 (Cth) (AHRC) regarding the rights of the child and their best interests. Furthermore, as per these conventions where the parents were required to leave Australia because the Minister refused to intervene in the matter, what is most important to consider is how the decision could impact the rights of the child and their best interests.

This article aims to highlight the rights and the best interests of Australian citizen children, which the Minister and the department must consider. In addition to this, we will also discuss an improvement opportunity the Minister and the Department must support these Australian children. It is also our intention to highlight the serious nature of this matter and question whether Australia is on the verge of breaching the human rights of our children by deporting them from Australia because the Minister failed to use their power to intervene as they meant to do so.

What is the Minister’s power?

Under s351 of the Migration Act 1958, the Minister has the power to intervene in matters as we discuss in this article. The s351 states that ‘The Minister has powers under the Migration Act 1958 to replace a decision of a merits review tribunal on a person’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so’. The Department has extensive procedures and policies before the Minister intervenes in an application. These procedures and policies are in place to ensure that the Minister intervenes in the most crucial applications to have his attention. The Department has guidelines that the Minister has given; if the Department identifies that an application does not meet the guidelines, it will not be referred to the Minister. As per the Department of home affairs, The Minister has described the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration.

Furthermore, The Minister’s guidelines indicate that some instances that do not meet the guidelines for referral are inappropriate to consider. The Minister has described the circumstances of these cases in the guidelines given to the Department. If the Department determines that the application is inappropriate, the Minister expects the Department to finalise such requests without further processing. These guidelines aim to ensure that the Department and the Minister have taken the necessary measures to serve the public’s interest. One might ask why matters related to an Australian Citizen child is a unique or exceptional circumstance. In our understanding, if there is a matter which affects the rights and the best interest of an Australian citizen child, this is a unique or exceptional situation. Furthermore, not allowing the child to live and grow up with their parents is also a concern that impacts the public’s interest. If a child is not allowed to live with their parents, this affects the child’s rights and best interests, and it is a grave concern that the Department and the Minister must take into consideration.

Rights and the best interest of the child are the paramount concern.

As said, the impact on the rights of the child is an important consideration, which the Minister must take into account before deciding not to intervene in a decision that affects an Australian citizen child. As per the article 3 of the Convention on the Rights of the Child (CRC), ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. Furthermore, articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR) must also be considered before deciding what may impact the rights of the child. Article 17 of the ICCPR states that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation’. At the same time, article 23 of the ICCPR states that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. These articles must be considered in an ideal world where the Convention identifies that the child faces enduring harm to their rights and well-being.

In addition, the Minister is also required to consider what has been outlined in AHRC regarding the rights of the child and their best interests. The following two principles are the most relevant and important principles that any government decision-maker must consider when making decisions that impact the child’s rights and best interests.

Principle 1

The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, whether of himself or of his family.

Principle 6

The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.

Furthermore, the United Nations Children’s Fund (UNICEF) Implementation Handbook for the CRC guides the interpretation of ‘primary consideration’. Under article 3: The wording of article 3 indicates that the best interests of the child will not always be the single, overriding factor to be considered; there may be competing or conflicting human rights interests. However, the child’s interests must be the subject of active consideration; it needs to be demonstrated that children’s interests have been explored and taken into account as a primary consideration’. Moreover, Article 45 of the ICCPR recognises the special competence of UNICEF and other United Nations organisations to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates.

In common law, the Courts have identified the importance of the decision-maker considering the best interest of the child. In Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133, (Wan v MIMA), the Full Court of the Federal Court held that the decision-maker needed to identify what is in the best interests of the children before determining whether to grant a permanent residence visa to an applicant with two Australian citizen children, where character concerns about the applicant were raised by the Department. In Wan, the Courts regarded the following issues as necessary to consider:

(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother’s citizenship, ‘and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle’ (Vaitaiki per Burchett J at 232; 614)

(b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland

(c) the loss of educational opportunities available to the children in Australia

(d) their resultant isolation from the normal contacts of children with their mother and their mother’s family

Moreover, in the decision of the United Kingdom Supreme Court, ZH (Tanzania) (FC) v Secretary of State for the Home Department, which considered the rights of citizen children born to a mother unlawfully residing in the UK, Lady Hale for the majority stated:

Although nationality is not a ‘trump card’, it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8). Nor should the intrinsic importance of citizenship be played down. As citizens, these children have rights that they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, culture, and language. They will have lost all this when they come back as adults.

A recommendation for consideration

It is understandable that each decision must be taken into close consideration before the Minister decides to intervene. While the processes and procedures in place for the Minister’s intervention are understandable, it simply cannot be far more important than an Australian citizen’s rights and best interest, especially where the impact is toward the rights and best interest of an Australian citizen’s child. What is important is that the Minister pays close attention to identifying how the Minister’s office could either simplify the processes and procedures with amendments or provide alternative visa options for the eligible parents of an Australian citizen child. For example, a child is an Australian citizen, but the child’s parents do not have a valid visa due to reasonable and lawful circumstances.

In this instance, the Minister could provide a short-term visa option for the parents to continue to live with the child in Australia, which will create a pathway to apply for the Parent (subclass 143) visa once the child turns 18 and can be an eligible sponsor. It is also important to note that most parents are skilled migrants who could not secure their permanent residency due to different circumstances but they are still working and contributing to society.

Now Australia is recovering from the Covid 19 pandemic, and the Department of home affairs are in the process of improving the skills migration program for the year 2022/2023; this is an excellent opportunity for the Department to support the skills migration program by allowing the skilled parents to work continually and remain in Australia.

In the Conventions discussed above and in common law, the decision-makers are encouraged to consider the rights and the best interests of the child when they are making a decision. The question is to what extent the Department and the Minister are considering these guidelines. Especially in matters where an Australian citizen child was left with no other choice but to leave their home since the Minister refused to intervene.

It is important to highlight that the Minister has the power and opportunity to support these children by considering any alternative options available to them. Our recommendation as above is merely one recommendation. We firmly believe that the Department and the Minister’s resources would enable them to identify other potential opportunities to support these children. As we said, Australia is home to many, not only because of the way of life, but it is a country where it supports and respects the rights and interests of everyone.

As Australians, we have supported and adopted many laws to protect our children over the years, including their human rights. Regardless of parents’ visa conditions, once a child becomes an Australian citizen, this child’s rights and best interests must be considered and treated the same as any other Australian citizen. The Minister and department do not consider the impacts that may cause these children by their decisions.

It is the responsibility of all Citizens in Australia, including the Minister, to protect our children by any means necessary. Therefore, we encourage the Minister to consider what the Minister and the department must consider, including the guidelines given by international conventions and AHRC and intervene in matters related to Australian citizen children. If the Minister cannot intervene, then use their resources to identify new and alternative approaches to support Australian citizen children to allow them and their parents to live as a family in Australia and protect their rights and best interests.