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Human Rights Commission Act - Human Rights Commission - Report - No. 15 - The human rights of Australian-born children - Complaint of Mr and Mrs M. Yilmaz


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The Parliament of the Commonwealth of Australia

H U M A N RIGHTS C O M M ISSIO N

Report No. 15

The Human Rights of Australian-born Children: A report on the complaint o f Mr and Mrs M . Yilmaz

August 1985

Presented 10 October 1985 Ordered to be printed 17 October 1985

Parliamentary Paper No. 310/1985

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REPORT NO; 15

The Human Rights of Australian-born Children: A Report on the Complaint of Mr and Mrs M. Yilmaz

THE HUMAN A REPORT ON

HUMAN RIGHTS C O M M I S S I O N

REPORT NO. 15

RIGHTS OF AUSTRALIAN-BORN CHILDREN: THE COMPLAINT OF MR AND MRS M. YILMAZ

August 1985

Australian Government Publishing Service Canberra 1985

Commonwealth of Australia 1985 ISSN 0813-3506 ISBN 0 644 04332 6

Report No.1

Report No.2

Report No.3

Report No.4

Report No.5

Report No.6

Report No.7

Report No.8

Report No.9

Report No.10

Report No.11

Report No.12

Report No.13

Report No.14

The Australian Citizenship Act 1948 (August 1982) Proposed ACT Mental Health Ordinance 1981 (October 1982) Testamentary Guardianship in the Australian Capital Territory (April 1983) Human Rights and the Deportation of Convicted Aliens and Immigrants (June 1983) Review of Crimes Act 1914 and Other Crimes Legislation of the Commonwealth

(August 1983) The Observance of Human Rights at the Villawood Immigration Detention Centre

(August 1983) Proposal for Amendments to the Racial Discrimination Act to Cover Incitement to Racial Hatred and Racial Defamation

(November 1983) Deportation and the Family: A Report on the Complaints of Mrs M. Roth and Mr C.J. Booker (September 1984) Community Services (Aborigines) Act 1984

(January 1985) The Human Rights of Australian Born Children: A Report on the Complaint of Mr and Mrs R.C. Au Yeung

(January 1985) Human Rights of the Terminally 111: The Right of Terminally 111 Patients to have Access to Heroin for Painkilling Purposes (March 1985) The Queensland Electricity (Continuity of Supply) Act 1985 (March 1985)

Human Rights and the Migration Act 1958 (April 1985) Queensland Electricity Supply and Related Industrial Legislation (May 1985)

Primed by Canberra Publishing and Printing C o.. Fyshwick. A.C.T.

H U M A N RIGHTS COMMISSION HUMAN RIGHTS CO M M ISSIO N 6th Floor, A.M.P. Building, Hobart Place, Canberra City

Our Ref:

P.O. Box 629, CANBERRA CITY, AC.T. 2601

Telephone: 4341 22 Telegrams: Rightscom Canberra Telex: AA 62090

2 August 1985

The Hon. Lionel Bowen, Q.C., M.P., Deputy Prime Minister and Attorney-General, Parliament House, CANBERRA, A.C.T. 2600

Dear Attorney-General,

Pursuant to section 9(1)(b)(ii) of the Human Rights Commission Act 1981, we present this report to you following the Human Rights Commission's inquiry and endeavours to effect a settlement in

the matter of a complaint made by Mr and Mrs M Yilmaz that their expulsion from Australia is inconsistent with and contrary to human rights.

Yours sincerely,

it Chairman for and on behalf of the Human Rights Commissioner

(iv)

Members of the Human Rights Commission

Chairman

The Hon. Dame Roma Mitchell, D.B.E.

Deputy Chairman

Mr P. H. Bailey, O.B.E.

Members

Associate Professor M. J. Aroney, O.B.E. Professor P. J. Boyce Mrs N. C. Ford Mrs E. Geia

Ms E. Hastings

(V)

CONTENTS

Page

Functions of the Commission (iv)

I. Introduction 1

II. The Factual Basis of the Complaint 2

III. Reasons 4

IV. Findings and Recommendations 5

V. Reference of the Report to the Department 7

Appendix A 8

FUNCTIONS OF THE COMMISSION

Section 9 of the Human Rights Commission Act 1981 (Cwlth) reads:

9.(1) The functions of the Commission are -(a) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments

are, or would be, inconsistent with or contrary to any human rights, and to report to the Minister the results of any such examination;

(b) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and -(i) where the Commission considers it appropriate to do so - endeavour to effect a settlement of the

matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement, of the matters that gave rise to the inquiry or has endeavoured without success to effect a settlement of those matters - to report to the Minister the results of its inquiry and of any endeavours it has made to effect such a

settlement;

(c' on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights;

(d) when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant international instrument;

(e) on its own initiative or when requested by the Minister, to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the Covenant, the Declarations or any other relevant international instrument, and to report to the Minister the results of any such examination;

(f) to promote an understanding and acceptance, and the public discussion, of human rights in Australia and the external Territories;

(Vii)

(g) to undertake research and educational programs, and other programs, on behalf of the Commonwealth for the purpose of promoting human rights and to co-ordinate any such programs undertaken by any other persons or authorities on behalf of the Commonwealth;

(h) to perform -(i) any functions conferred on the Commission by any other enactment;

(ii) any functions conferred on the Commission pursuant to any arrangement in force under section 11; and

(iii) any functions conferred on the Commission by any State Act or Northern Territory enactment, being functions that are declared by the Minister, by notice published in the Gazette, to be

complementary to other functions of the Commission; and

(j) to do anything incidental or conducive to the performance of any of the preceding functions.

(2) The Commission shall not -(a) regard an enactment or proposed enactment as being inconsistent with or contrary to any human right for the purposes of paragraph (1)(a) or (b) by reason of a

provision of the enactment or proposed enactment that is included solely for the purpose of securing adequate advancement of particular persons or groups of persons in order to enable them to enjoy or exercise human rights

equally with other persons; or

(b) regard an act or practice as being inconsistent with or contrary to any human right for the purposes of paragraph (1)(a) or (b) where the act or practice is done or engaged in solely for the purpose referred to in paragraph (a).

(3) For the purpose of the performance of its functions, the Commission may work with and consult appropriate non-governmental organizations.

■

I INTRODUCTION

In November 1984 the Commission received a complaint that

tne proposed deportation of Mr and Mrs Mustafa Yilmaz and their

children, Taygan and Alkan, was inconsistent with or contrary to

human rights. The complaint was referred to the Department of

Immigration and Ethnic Affairs by officers of the Commission,

but, despite their endeavours, no settlement was attained. The

family left Australia, under threat of deportation, on 22

December 1984.

2. The report is made by the Human Rights Commission pursuant

to its functions under sections 9(1)(b) and 16(2) of the Human

Rights Commission Act 1981 (Cwlth) to inquire into any act or

practice that may be inconsistent with or contrary to any human

right and, where it has endeavoured without success to effect a

settlement, to report to the Minister.

II. THE FACTUAL BASIS OF THE COMPLAINT

3. Mr and Mrs Mustefa Yilmaz came to Australia on 24 March

1981 on temporary entry permits. They overstayed and thus

became prohibited non-citizens under s.7 of the Migration Act

1958 (Cwlth). Mr Yilmaz obtained employment under his real

name and paid taxes. It was clearly the intention of the couple

to stay in Australia if they could.

4. On 21 September 1982 a baby boy was born to Mr and Mrs

Yilmaz at Carlton, Victoria, and, some two years later, another boy was born on 16 August 1984 at St. Leonards in New South

Wales. The elder child is Taygan Yilmaz and the younger is Alkan Yilmaz. Both births are registered with the appropriate

State registration authorities. As a result of the operation of s.10 of the Australian Citizens Act 1948 (Cwlth), both children

became Australian citizens as a result of their birth in Australia.

5. On 29 October 1984 the Department of Immigration and Ethnic

Affairs issued separate deportation orders against Mr and Mrs

Yilmaz under s.18 of the Migration Act 1958.

6. On 7 November 1984 Mr and Mrs Yilmaz complained in writing

to the Human Rights Commission to the effect that their

threatened deportation was contrary to and inconsistent with

human rights. This complaint was amplified by their solicitors

on 9 November 1984. Despite the attempts of the Commission to

achieve a conciliated settlement, the Yilmaz family, including the two children, left Australia on 22 December 1984 to avoid deportation: they were given the option of leaving or being deported.

7. It is not in dispute that on overstaying in Australia after

their visas had expired, Mr and Mrs Yilmaz became prohibited

non-citizens, with the result that, leaving human rights

considerations to one side, they were liable to deportation

under section 18 of the Migration Act 1958, which provides

that

The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act.

However, because they were Australian citizens, the Yilmaz

children were not liable to be deported: Kioa and Others v.

Minister for Immigration and Ethnic Affairs.1

1. Kioa and Others v. Minister for Immigration and Ethnic Affairs (1984), 55 ALR 669 at p.675, per Northrop and Wilcox JJ.

III. REASONS

Human Rights Issues

8. This complaint raises one substantial human rights issue.

It is whether a husband and wife who are prohibited non-citizens

should not be deported on the ground that their deportation

would infringe the human rights of their Australian born

children.

9. This same issue was dealt with at length in the

Commission's Report No.10 on The Human Rights of Australian-born

Children: A Report on the Complaint of Mr and Mrs R.C. Au

Yeung, and in its Report No.13 on Human Rights and the Migration

Act 1958. at paras 57. 112, and 213 and Recommendation 60. The

Commission does not propose to recapitulate in full what it said

in those reports, but invites a reconsideration of the arguments

carefully developed in them. As in the Au Yeung case, the Commission is of the opinion that the expulsion of Mr and Mrs

Yilmaz from Australia amounted in practice to the deportation of

two Australian citizens» their sons Taygan and Alkan. This was

inconsistent with Articles 23 and 24 of the International Covenant on Civil and Political Rights (ICCPR). several

Principles of the Declaration of the Rights of the Child, and

arguably also in conflict with Article 7 of the International

Covenant. The text of these Articles and Principles is set out in Appendix A.

V. FINDINGS AND RECOMMENDATIONS

10. Having conducted an inquiry into a Commonwealth act or

practice complained of by Mr and Mrs M. Yilmaz, namely, the

requirement that they leave Australia or be deported, the

Commission finds that this act or practice is inconsistent with or contrary to human rights, in particular, the rights of their

Australian born sons, Taygan and Alkan, set out in the

Declaration of the Rights of the Child and the International

Covenant on Civil and Political Rights. Its reasons for these

findings are summarised in the preceding pages of this report. Consequently, the Commission recommends that Mr and Mrs Yilmaz

be permitted to return to Australia as permanent residents and

that in other cases involving the human rights of the Australian

born children of parents who are not citizens of Australia

recognition be given to the paramountcy of the legal and human

rights of these children in the making of immigration decisions

concerning their parents.

11. Whilst the human rights of Australian citizens must

invariably be observed, nothing in the ICCPR or the Declaration

of the Rights of the Child requires the children of prohibited

non-citizens to become Australian citizens merely because they

are born in Australia. The current practice, in cases like this, is to treat them as if, in effect, they were not citizens,

with the result that their human rights are denied. This is an

unjust result. It may be fairer in the long run to change the rule that birth in Australia automatically results in Australian

citizenship for the children of prohibited non-citizens, provided that otherwise stateless children born in Australia are

granted Australian citizenship. The Commission observes, further, that more effective supervision of temporary entrants

would remove or substantially reduce the kind of problem

presented in this case.

6.

12. Article 24.3 of the International Covenant on Civil and

Political Rights confers a right on "every child . . . to

acquire a nationality". This requirement could be satisfied in

a number of ways. It is certainly satisfied by the present rule

automatically conferring Australian citizenship on children of

prohibited non-citizens born in Australia. The requirements of

Article 24.3 would also be met if the domestic laws of the

country of which the parents are nationals conferred

citizenship, or a right to acquire it, on the children,

notwithstanding they were not born within its territory. The

Commission recommends that if any change is made to the existing

arrangements, it should be such as to ensure that the child, if

it would otherwise be stateless, has Australian nationality.

V. REFERENCE OF THE REPORT TO THE DEPARTMENT

13. In discharging its obligations under sections 14 and 16(2)

of the Human Rights Commission Act to give the Department a

reasonable opportunity to respond to its conclusions and to

supply advice as to whether any action is being taken as a

result of the findings and recommendations of the Commission, a copy of this report was made available in draft to the

Department on 27 June 1985. On 10 July 1985 the Secretary to

the Department of Immigration and Ethnic Affairs advised that it

was not proposed to take any action as a result of the findings

and recommendations in this matter.

8.

APPENDIX A

International Covenant on Civil and Political Rights

ARTICLE 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

ARTICLE 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and no found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

ARTICLE 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or bith, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

9.

Declaration of the Rights of the Child

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 2

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in

conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

The child shall be entitled from his birth to a name and a nationality. Principle 4

The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing,

recreation and medical services.

The child who is physically, mentally or socially handicapped shall be given the special treatment, education and care required by his particular condition.

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.

10.

Principle 7

The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages. He shall be given an education which will promote his general culture and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgment, and his sense of moral and social responsibility, and to become a useful member

of society.

The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.

The child shall have full opportunity for play and recreation, which should be directed to the same purposes as education; society and the public authorities shall endeavour to promote the enjoyment of this right.

Principle 8

The child shall in all circumstances be among the first to receive protection and relief.

Principle 9

The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.

The child shall not be admitted to employment before an appropriate minimum age; he shall in no case be caused or permitted to engage in any occupation or employment which would prejudice his health or education, or interfere with his physical, mental or moral development.

Principle 10

The child shall be protected from practices which may foster racial, religious and any other form of discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, and

in full consciousness that his energy and talents should be devoted to the service of his fellow men.