"X" v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants, "X" and "Y", arrived in Australia from Kenya as stowaways on 17 April 1998. On 7 May 1998 each of the applicants applied for a protection visa and these applications were refused by a delegate of the Minister for Immigration and Multicultural Affairs, the first respondent. On 17 July 1998 the Refugee Review Tribunal (the Tribunal) affirmed the delegate's decisions. On 3 August 1998 the first respondent attempted to remove the applicants from Australia by placing them on an aircraft bound for Singapore. That attempt provoked an application to this Court to prevent their removal. In the event, the first respondent agreed to allow each of the applicants to return to Australia to prosecute a review of the decision of the Tribunal. 2 In the review proceedings, which are numbered VG 366 and VG 367 of 1998, I have today ordered that the decisions of the Tribunal be set aside and each application be referred to the Tribunal for reconsideration. The reasons for decision in VG 366 of 1998 set out the background of the arrival of the applicants in Australia and in that respect should be read in conjunction with these reasons. 3 On 5 August 1998 the applicants were returned to Australia and were immediately placed in migration detention. While there is a dispute between the parties about the present age of the applicants, there is no dispute that both were under eighteen years of age at the time of their return to Australia and their placement in migration detention. As a result of the age and circumstances of the applicants, s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (the Act) operated to make the first respondent the guardian of the applicants. Section 6 provides: "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." As the first respondent also had a statutory role in determining the applications for protection visas, he delegated his functions as guardian to the Secretary of the Department of Human Services for the State of Victoria, the second respondent. 4 As soon as the applicants were returned to Australia they instructed solicitors to take steps to have them released from detention. On 5 August 1998 an application was made by each applicant for a Bridging Visa E - subclass 051. Regulation 2.20(7) of the Migration Regulations 1994 (the Regulations) applied to such an application and provided: (7) This subregulation applies to a non-citizen: (a) who, on or after 1 September 1994: (i) was refused immigration clearance; or (ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and (b) who has, on or after 1 September 1994: (i) made a Protection (Class AZ) visa application that has not been finally determined; or (ii) applied for judicial review of a decision to refuse a Protection (Class AZ) visa; and (c) who has not turned 18; and (d) in respect of whom a child welfare authority of a State or Territory has certified that release from detention is in the best interests of the non-citizen; and (e) in respect of whom the Minister is satisfied that: (i) arrangements have been made between the non-citizen and an Australian citizen, Australian permanent resident or eligible New Zealand citizen for the care and welfare of the non-citizen; and (ii) those arrangements are in the best interests of the non-citizen; and (iii) the grant of a visa to the non-citizen would not prejudice the rights and interests of any person who has, or may reasonably be expected to have, custody or guardianship of, or access to, the non-citizen. 5 Advisers acting on behalf of the applicants immediately investigated the possibility of alternative arrangements to clothe, feed, accommodate and educate the applicants outside the detention environment. Certain proposed arrangements were submitted to the respondents in an effort to satisfy reg 2.20(7)(d) and (e) but these arrangements did not result in the grant of bridging visas. 6 On 15 September 1998 the applicants each filed an application under s 39B of the Judiciary Act 1903 (Cth) seeking orders aimed at securing their release from detention quickly. 7 On 25 September 1998 the Court held the first directions hearing in each application. Directions were given for the filing of a motion by the applicants seeking interim relief together with affidavits and contentions from all the parties. The question of whether the applicants should be released from detention pending the hearing and determination of the application was referred to mediation. On 19 October 1998 the applicants were released from detention as a result of an agreement between the parties. The details of this agreement were not made known to the Court. However, one result of the agreement was that the applicants were granted bridging visas as sought. 8 One consequence of the release from detention was that the applicants did not need to pursue that relief any further. On 6 November 1998 they each filed an amended application which, so far as is now relevant, claimed declarations in the following terms: "3. That the duties, obligations and liabilities of the first respondent and or alternatively the second respondent as guardian during the period of guardianship include: (a) the provision and funding of accommodation for the applicant; (b) the provision and funding of all reasonable expenses in relation to the education of the applicant in a Victorian Secondary school; (c) the provision and funding of all educational, sporting and other materials which are reasonably required by the applicant in order to participate in educational activities at a Victorian Secondary school; (d) the provision and funding of all reasonable health and medical services; (e) an obligation to provide such funding as may be necessary to ensure that the applicant can live within the Australian community during the period of the guardianship." and also claimed orders as follows: " … 7. That the first respondent or alternatively the second respondent reimburse to the applicant any amount paid by the applicant or by any person on behalf of the applicant in respect to expenditure the liability for which rests with the first and or second respondent. … 9. That the first respondent or alternatively the second respondent reimburse to the applicant any amount paid by the applicant or any person on behalf of the applicant on account of medical insurance since the applicant's first arrival in Australia." 9 It was common ground that the applicants are both now over eighteen years of age and that any obligation which the respondents had as alleged has ended. Thus, the claim now is for reimbursement for past living expenses for the period during which the guardianship of the applicants persisted. 10 The argument put at the hearing of this application was limited in scope. For instance, there was no comprehensive evidence of the monetary amount claimed by the applicants by way of reimbursement. The parties agreed that the assessment of quantum if necessary, could await the determination of other issues. 11 There was another significant narrowing of the scope of the argument. The first respondent was prepared to accept for the purposes of argument that there was a duty on him as guardian under s 6 of the Act. The respondents, however, argued that there was no evidence of any breach of any such duty. 12 The first respondent's actions must be seen in the context of his role under reg 2.20 of the Regulations. There was no challenge to his decisions to grant the bridging visas. This is not surprising because the grants of those visas were the means by which the applicants were released from detention. The Regulations required that the first respondent be satisfied that arrangements had been made for the care and welfare of the applicants and that those arrangements were in their best interests. It should be accepted that the first respondent was properly satisfied that the arrangements made for the applicants were in their best interests. Not only does this follow from the lack of any challenge to the decision to grant the bridging visas, but it accords with the other evidence in the case. 13 The duty of the guardian under s 6 is to protect the interests of the person under care. Whilst the guardian must ensure that the person under care is properly fed, clothed, housed and educated there is no absolute duty on the guardian to provide the funds for those purposes. The guardian may discharge the duty by arranging for others to bear the financial burden of the living expenses of the person under care. 14 In the present case from the time of their release from detention until April 1999 the applicants lived with Ms Debra Mortimer, a barrister, who initially represented them. She swore an affidavit on 12 November 1999 which stated: "4. There were several mediation attempts to resolve the issue whether the boys could be granted bridging visas. To my knowledge, at all times, the first and second respondents have denied any responsibility for housing, clothing or looking after the boys other than if they are in immigration detention. Without the financial or other support of the respondents it was unlikely we would be able to find accommodation and make arrangements suitable to both respondents. In those circumstances, I volunteered to have the boys come to live with me and my two children. 5. I did not expect or ask the boys for any payment in relation to them living in my house, nor in relation to all the associated expenses. By agreeing to them living with me on this basis, I did not intend to relieve either or both the respondents of their financial and legal responsibilities for the boys, as those responsibilities are described in this application. I was aware of the nature of the 'guardianship proceedings' in this Honourable Court. I only wished to assist in having them released from detention." 15 Since April 1999 the applicants have been living in accommodation provided by the Uniting Church. The accommodation costs the Church $35 per week but it has not pursued payment from the applicants. They received food vouchers from Outreach Mission Footscray which are donated. Further, some individuals have donated monies amounting to about $6,000 which have been used to pay medical fund contributions, transport and education and other expenses for the applicants. 16 The picture which emerges from the evidence is that generous-hearted people have supported the applicants by donations and direct assistance. They so acted without expectation of repayment from the applicants. There was no legal obligation imposed upon the applicants to make any repayment. The generosity of these people enabled the respondents to be satisfied that the applicants' interests were being met. If the hand of humanity had not been extended to the applicants they would probably have been forced to remain in migration detention. Ironically, the cost to the first respondent in maintaining the applicants in detention is likely to have been considerably greater than the amount of reimbursement of those people whose charity and generosity made it possible for the applicants to be released from detention. 17 However, even on the assumption made in favour of the applicants for the purpose of argument in this case, there is no basis upon which to find that the respondents have acted in breach of the obligations of a guardian by failing to pay for the living expenses of the applicants during the period of guardianship. Therefore, the application will be dismissed. 18 The present applications were heard together with the applications for review of the decisions of the Tribunal to refuse the applicants protection visas. In those applications the applicants succeeded and orders for costs have been made in their favour. The hearing of the review proceedings occupied 15 November 1999 and almost half of the day of 16 November 1999. In other words the hearing on 16 November was necessitated by the review proceedings in any event. For that reason it is appropriate that there be no orders for costs of the present applications for the hearing on 16 November 1999. In relation to the other costs of the present applications, it seems appropriate that there also be no order as to costs. However, should the respondents wish to seek to set aside or vary this aspect of the costs order, they may apply to the Court at a time to be arranged by either of them, with my Associate. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.