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Human Rights Commission Act - Human Rights Commission - Report - No. 10 - The human rights of Australian-born children - Complaint of Mr and Mrs R.C. Au Yeung, dated 18 January 1985


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The Parliament of the Commonwealth of Australia

H UM AN RIGHTS COM M ISSION

Report No. 10

The human rights of Australian-born children: A report on the complaint of Mr and Mrs R. C. Au Yeung

Presented 28 March 1985 Ordered to be printed 23 April 1985

Parliamentary Paper No. 80/1985

H UM AN RIGHTS COMMISSION

REPORT NO. 10

The Human Rights of Australian-born Children: A Report on the Complaint of Mr and Mrs R.C. Au Yeung

HUM AN RIG H TS C O M M IS S IO N

REPORT NO. 10

THE HUMAN RIGHTS OF AUSTRALIAN-BORN CHILDREN: A REPORT ON THE COMPLAINT OF MR AND MRS R. C. AU YEUNG

JANUARY 1985

Australian Government Publishing Service Canberra 1985

® Commonwealth of Australia 1985 ISSN 0813-3506 ISBN 0 644 03894 2

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

The Australian Citizenship A c t 1948 (August 1982) Proposed A .C .T. Mental Health Ordinance 1981 (October 1982) Testamentary Guardianship in the Australian Capital Territory (April 1983) Human Rights and the Deportation o f Convicted Aliens and Immigrants (June 1983) Review o f Crimes A ct 1914 and Other Crimes Legislation o f the Commonwealth (August 1983)

The Observance o f Human Rights at the Villawood Immigration Detention Centre (August 1983) Proposal fo r Amendments to the Racial Discrimination A ct to Cover Incitement to Racial Hatred and Racial Defamation (November 1983) Deportation and the Family: A Report on the Complaints o f Mrs M. Roth and Mr C. J. Booker (September 1984)

Community Services (Aborigines) A ct 1984 (January 1985)

Printed by Advocate Press Pty. Ltd., Melbourne 3000.

Human Rights Commission P.O. Box 629

Canberra City, A.C.T. 2601

18 January 1985

The Honourable Lionel Bowen, 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 R. C. Au Yeung that their expulsion from Australia is inconsistent with and contrary to human

rights.

Yours sincerely,

Chairman

for and on behalf of the Human Rights Commission

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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 Dr C. D. Gilbert (resigned 1 August 1984)

Ms E. Hastings

CONTENTS

Page

Functions of the Commission vii

I Introduction 1

II The Factual Basis of the Complaint 2

III Reasons (a) Human Rights Issues (b) Human Rights and Section 18 of the Migration A ct 1958 IV Endeavours to Effect a Settlement 9

V Findings and Recommendations 10

VI Reference of the Report to the Department 11

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FUNCTIONS OF THE COMMISSION

Section 9 of the Human Rights Commission A ct 1981 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; (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

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(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 organisations.

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I. INTRODUCTION

In May 1984 the Commission received a complaint that the proposed deportation of Mr and Mrs R. C. An Yeung and their child, Alvin, 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 27 September 1984.

2. The report is made by the Human Rights Commission pursuant to its functions under sections 9(b) and 16(2) of the Human Rights Commission Act 1981 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.

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II. THE FACTUAL BASIS OF THE COMPLAINT

3. Mr and Mrs Au Yeung came to Australia on 15 August 1982 on tourist visas, apparently with the purpose of visiting Mr Au Yeung’s mother and persuading her to return to Hong Kong, where they were all domiciled. This task proved impossible and Mr and Mrs Au Yeung, after staying for two months at Carlingford, moved to Bourke in New South Wales where they worked at the RSL Club Restaurant.

4. On 19 December 1983 Mrs Au Yeung gave birth to a son, Alvin Cheuk-Yiu Au Yeung, at Bourke. The birth was notified to the Principal Registrar of Births, Deaths and Marriages in Sydney, who issued an acknowledgement of birth registration. As a result of the operation of section 10 of the Australian Citizenship A ct 1948, Alvin Au Yeung became an Australian citizen by birth.

5. Subsequently, the family negotiated to purchase a restaurant at Temora in New South Wales. However, the Department of Immigration and Ethnic Affairs intervened and detained them with a view to their deportation in May 1984, whereupon they took legal advice and, amongst other things, complained under the Human Rights Commission A ct 1981 that their threatened deportation was inconsistent with or contrary to human rights. Despite the attempts of the Commission to achieve a conciliated settlement, the Au Yeung family was forced to leave Australia on 27 September 1984. In fact they they had no option but to leave or be deported.

6. It is not in dispute that on overstaying in Australia after their visas had expired, Mr and Mrs Au Yeung became illegal immigrants with the result that, leaving human rights considerations to one side for the moment, they were liable to deportation under section 18 of the Migration A ct 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 he was an Australian citizen, Alvin was not liable to deportation under section 18.

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III. REASONS

(a) Human Rights Issues

7. Despite their failure to comply with the requirements of the Migration A ct 1958, which makes it quite clear that people who overstay in Australia after the expiry of a tourist visa become liable to deportation, Mr and Mrs Au Yeung complained that deporting them constituted a breach of human rights and, therefore, that their

deportation should not have taken place. Their complaint raises one substantial human rights issue. It is whether the deportation of a husband and wife who are prohibited immigrants should be restrained on the grounds that their deportation would infringe the human rights of their Australian born child.

8. It is common ground that their child, Alvin, was born in Australia and is an Australian citizen by birth. The focus of this report then, is not on the human rights of the parents, so much as the human rights of the child, Alvin.

9. In examining his rights, one begins with Article 24 of the International Covenant on Civil and Political Rights which encapsulates the principles found in the Declaration on the Rights of the Child as legal norms obligatory for States Parties to the Covenant, such as Australia. Both instruments form schedules to the Human Rights Commission A ct 1981. The Declaration on the Rights of the Child was proclaimed by the General Assembly of the United Nations on 20 November 1959, and it was not until 1966 that the text of the International covenant was finalised. Although, in international law, it may be said that, as far as States Parties are

concerned, the International Covenant on Civil and Political Rights creates the stronger obligation, the Declaration on the Rights of the Child ranks equally with it from the point of view of this Commission, which is required to report breaches of the Declaration in the same way as it is required to report breaches of the Covenant.

10. The requirements of paragraphs (2) and (3) of Article 24 have been met in Alvin’s case. These require that he shall be registered immediately after birth, have a name, and have the right to acquire a nationality. His birth was registered, he has a name, and he has acquired Australian nationality. Issues, however, do arise in respect

of Article 24.1 which provides that Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, 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.

Having acquired Australian nationality he became entitled to the same measures of protection on the part of the State as it extends to other Australian children. Instead, the realities of the situation were that the State expelled him from Australia, and deprived him of his rights to protection that he was entitled to, and which the State

had a duty to provide. He was discriminated against by virtue of his birth to prohibited non-citizens, despite his right under Article 24.1 to be treated without discrimination as to race, national or social origin, or birth.

11. Article 24 is not one of those Articles of the ICCPR which contains provisos and exceptions to its application. It is quite explicit that every child is entitled to its benefits, whilst Article 2.1 reads Each State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognised in the

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present Covenant, without distinction o f any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

12. Turning to the Declaration of the Rights of the Child, a number of the principles found in that Declaration are relevant to Alvin’s case.

13. Principle 2 emphasises the paramountcy of the best interests of the child, whilst Principle 3 gives every child an entitlement . . from his birth to a name and a nationality’. Alvin’s right to his Australian nationality was, in effect, overridden by expelling his parents as he was forced in one way or another to go with them. His de facto deportation deprived him of one of the principal rights associated with his Australian nationality, namely, the right to be brought up in the country of his birth. The effective deportation of the family, including Alvin, also infringed Principle 1 which provides that, amongst other things,

Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account o f race . . . national or social origin, . . . birth or other status, whether o f himself or o f his family.

Alvin was discriminated against, by comparison with other Australian children, in that he had, in fact, no option but to leave with his parents. Treating him as a mere appendage of his parents is to ignore his independent rights.

14. Principle 6 is of fundamental importance in this case. It provides that each child . . . shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere o f affection and o f moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.

Beginning with the premise that Alvin’s legal rights and interests entitle him to be brought up in the country of his birth, the effect of the application of Principle 6 to his case required his parents to stay with him, in order that he might grow up under their care. Although Principle 6 does envisage the separation of a child of tender years from his mother ‘. . . in exceptional circumstances’, these exceptional circumstances would principally relate to the situation where the mother was unable or unwilling to provide that atmosphere of affection and moral and material security owed to the child. The proviso is inapplicable in this case where the parents were able, if allowed to stay in Australia, to provide all the requirements set out in Principle 6 and the rest of the Declaration of the Rights of the Child.

15. Principle 7 relates to the entitlement of children to receive education. It provides, amongst other things, that 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 result of the application of this principle must be that the interests of Alvin in respect of his education and guidance are paramount and the responsibility for that education and guidance rests upon his parents. His best interests apparently lay in being educated in Australia and brought up in the country of his birth. As this responsibility for education and guidance lies with his parents, it is difficult to escape the conclusion his parents should have been allowed to stay in order to carry out these duties.

16. Principles 8, 9 and 10 also support the conclusion that the interests of Alvin required his parents to stay in Australia. Principle 8 is quite unequivocal in requiring that The child shall in all circumstances be among the first to receive protection and relief.

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Principle 9, amongst other things, requires the protection of the child against neglect and cruelty. It is arguably cruel to give him the choice of separating from his parents, or to leave the country of his birth when they were expelled. These requirements are also consistent with the more detailed provisions of the Declaration discussed above.

17. Mention should also be made of the family aspect of the deportation. Article 23 of the ICCPR reiterates, in paragraph 1, that The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Alvin’s rights should not be looked at in isolation from the position of his immediate family. The protection of his rights inevitably involves the recognition of the human rights of his family, and leads to the conclusion that they should have been permitted to stay with him in Australia. The thrust of these provisions of international human

rights law is towards keeping the family as a unit and giving highest priority to the rights of a child within it. Applying these principles would lead to the conclusion that the Au Yeung family should not have been expelled. Looking at it from another point of view, when the infant Alvin left Australia with his parents then, although

as a matter of form and procedure they are being expelled rather than Alvin, in fact he is being expelled as well. If, in the interests of the control of immigration, the Government feels it must deport family units in circumstances like these, then the only proper course, consistent with the observance of human rights, might be to provide that any child born to persons entering Australia on a temporary basis or illegally here, does not become an Australian citizen, unless the child would otherwise be stateless. To deport families where the parents are prohibited non-citizens, along

with their Australian born children, is to deal with an admitted problem at the wrong end. The evil is in allowing prohibited non-citizens to stay for months and years beyond the time when they should have left Australia. If by default a person or a family is allowed to remain long enough within Australia almost to qualify for citizenship had that residence been lawful, and in many cases to integrate, then it is highly doubtful whether it is then appropriate on any count for that person or family to be deported. Accordingly, if it is not felt appropriate to change the law relating to the children of prohibited non-citizens, then greater and more systematic efforts should be made to ensure that those entering the country under temporary arrangements are followed up if they do not leave at the time the permits for their stay in Australia expire. If this were done, then there would be few cases of the kind involving Alvin Au Yeung, and the human rights outlined above could reasonably be observed without the fear, which it seems is now a dominant influence, that people will come to Australia with the object of evading the conditions of entry and remaining long enough to become absorbed in the community.

18. The other provision of the International Covenant of relevance in this case is Article 7 which provides that No one shall be subjected to . . . cruel, inhuman or degrading treatment . . .

It is arguable that cruelty and inhumanity were involved in forcing the choice upon the Au Yeung family of either separating Alvin from his parents and leaving him in Australia or, alternatively, in depriving him of the benefits of his rights as an

Australian citizen by forcing him to depart with them.

19. For the foregoing reasons, the Commission is of the opinion that the expulsion of the Au Yeung family from Australia was inconsistent with and contrary to human rights.

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(b) Human Rights and Section 18 of the Migration A ct 1958

20. Section 18 of the Migration A ct 1958 confers a discretion which, on its face, can be exercised either to deny human rights, or to ensure their observance. Following the passing of the Human Rights Commission Act 1981, the discretion should be exercised in accordance with Australia’s international obligations in such a way that human rights are observed. In the view of the Commission, it is not enough merely to take human rights factors into consideration along with a whole host of other criteria in making deportation decisions, and to override them where that seems to the person exercising a discretion to be desirable for other reasons. Human rights should invariably be observed in the making of decisions on deportation. Human rights cannot be surrendered in favour of other criteria. In the final analysis, it is policies that must conform with human rights, and not human rights that must conform with policies.

21. It is important to recall that the Parliament of the Commonwealth has, in the Human Rights Commission Act itself, given a clear indication of the legislative policy it embodies. The preamble recites that . . . it is desirable that the laws' o f the Commonwealth and the conduct o f persons

administering those laws should conform with the provisions of the International Covenant on Civil and Political Rights, the Declaration of the Rights o f the Child, the Declaration on the Rights o f Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons and other international instruments relating to human rights and freedoms.

It is legitimate to use the preamble in interpreting the Act in order to resolve uncertainties as to the extent to which the international instruments found in its Schedules have been adopted domestically and to adopt a purposive interpretation of the Act as required by section 15AA of the Acts Interpretation A ct 1901. Where there is any ambiguity in an Act which purports to give effect to an international obligation, it has been held in such cases as Salomon v. Commissioners o f Customs & Excise [1967] 2 QB 116 that an interpretation which best facilitates the implementation of the obligation should be followed. It follows from the preamble, and from the specific provisions of section 9, that human rights should be observed in the law and practice of the Commonwealth. Where human rights are not observed, it is the duty of the Commission to furnish a report to the Minister, recording its opinion that the act or practice in question is inconsistent with or contrary to any human rights (paragraph 9(1) (b) and section 14). It is a consequential obligation on each Minister, Department and agency that acts and practices under Commonwealth law should comply with human rights, and that any offending law should be changed so that it is brought into conformity with the relevant human rights.

22. It is accordingly the view of the Commission that the Human Rights Commission A ct 1981 envisages that decisions such as those relating to deportation must conform with human rights. Although the Parliament, at this stage, has not made the human rights embodied in the instruments administered by the Commission directly enforceable in domestic law, it clearly requires the Commission to report how domestic laws and practices should be modified in order that human rights violations do not occur. The Parliament has made clear its intention of requiring conformity with human rights as defined in the relevant international instruments. It has not said that human rights considerations must give way to policy considerations or other matters. Indeed, the Commission has been set in place precisely to receive complaints that a policy or practice is not in conformity with human rights. And ultimately, if the Commission is of the opinion that any decision is inconsistent with or contrary

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to human rights, even if it is made in pursuance of a policy adopted by the Executive Government, it must report accordingly.

23. It is important to recognise that a particular decision about deportation can be consistent with current developments in Australian domestic law yet be inconsistent with human rights. Australian case law on immigration and human rights has not followed the principles enunciated by Lord Denning, M. R. in Bhajan-Singh’s case,

[1975] 3 W.L.R. 225, at p. 231, where it was said of the European Convention for the Protection of Human Rights and Fundamental Freedoms that The Court can and should take the Convention into account. They should take it into account whenever interpreting a statute which affects the rights and liberties of the

individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which was in conflict with treaties . . . I would repeat that when anyone is considering a problem concerning human rights, we should seek to solve it in the light

of the Convention and in conformity with it.

It will be recalled that the European Convention, unlike the International Covenant on Civil and Political Rights and the Declaration of the Rights of the Child in Australia, has not been the subject of an Act of Parliament in England directing that

its provisions should be observed in domestic law and practice. The right of individual access to the European Commission of Human Rights, and, ultimately, to the European Court of Human Rights, is derived from the European Convention and not from English domestic law, under which the ultimate court of appeal is the House of Lords.

24. Were the principle enunciated by Lord Denning in Bhajan-Singh’s case to be applied here, then the first step is to identify section 18 of the Migration A ct 1958 as conferring a discretion to deport which affects the liberties of the individual, and the case as one which should be solved in conformity with human rights. The Commission recognises, however, that the tendency in the Australian cases is against the assimilation of human rights into the domestic law relating to deportation. This point is best illustrated by consideration of a recent unreported decision delivered by a Federal Court composed of Northrop, Jenkinson and Wilcox J. J. in Melbourne on 3 October 1984 in Kioa v. Minister fo r Immigration. This was another case involving the deportation of prohibited non-citizens under section 18 of the Migration Act which led to the consideration of the rights of their Australian born child. In a joint judgment, Northrop and Wilcox J. J. said that the powers of the Minister were left entirely unaffected by the passing of the Human Rights Commission Act

1981 and, in making deportation decisions, neither he nor his delegate was obliged to turn their attention to the human rights specified in the international instruments scheduled to the Human Rights Commission Act 1981. Indeed, their Honors were unable to see that the Human Rights Commission Act had any relevance at all to deportation decisions. Jenkinson J., who agreed with the other members of the Court that the deportees’ appeal should be dismissed, and the validity of their deportation

orders maintained, nevertheless was of the opinion that In determining what considerations are to be regarded as relevant to the exercise o f a power to order deportation or o f a power to grant an entry permit, a Court would, I should think, be influenced, by the opinion expressed in the preamble [of the Human Rights Commission A c t 1981] that ‘it is desirable t hat . . . the conduct of persons administering’ the laws o f the Commonwealth ‘should conform with the provisions o f’ the instruments specified in the preamble, to hold that a person exercising such a power should consider whether a contemplated exercise o f the power was in conformity with those provisions and should, other things being equal, prefer an exercise of the power in conformity with those provisions to an exercise of the power at variance with those provisions.

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Smithers J., another member of the Federal Court, in Sezdirmezoglu’s case (1983), 51 ALR 575 at p. 577 expressed a similar opinion in another deportation case when he said that . . . the declaration o f Parliament in the Human Rights Commission A c t 1981 that it is

desirable that the conduct o f persons administering the laws of Australia should conform with the provisions of the Covenant may supply a ground for contending that the Minister should at least take into account the principles expressed therein.

25. The High Court has granted special leave to appeal in Kioa’s case, and, meanwhile, in the current state of Australian case law, a particular deportation decision may be unassailable in the courts, yet require this Commission to report to the Minister that it is inconsistent with or contrary to human rights. This situation arises largely because Australian case law, in its current state of development, has failed to assimilate human rights law to any significant extent. The result is that the sanctions for the enforcement of human rights law are imperfect, being largely limited to the reporting power of this Commission rather than to direct redress in the courts. In this particular case it may well be that, as a matter of Australian domestic law, the Minister was entitled to deport Mr and Mrs Au Yeung, and ignore the rights of their son Alvin but, nevertheless, acted inconsistently with and contrary to human rights.

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IV. ENDEAVOURS TO EFFECT A SETTLEMENT

26. Officers of the Commission have made every endeavour to effect a settlement of the matters giving rise to this complaint. Many discussions took place between officers of the Commission and the Department, and full details of the complaint and a reference to the human rights involved were provided in writing. On 23 May

1984, three officers of the Human Rights Commission met the Assistant Secretary in charge of the Entry Regulation Branch and the Director of the Enforcement Section at the offices of the Department of Immigration and Ethnic Affairs at Belconnen. The issues in the case were fully discussed and the view expressed by the Commission’s

officers that the deportation of Mr and Mrs Au Yeung would infringe the human rights of their Australian born child. Subsequently, on 30 May 1984 a Deputy Secretary of the Department of Immigration and Ethnic Affairs wrote to the Deputy Chairman of the Human Rights Commission seeking further details of the Commission’s position in this matter with particular reference to the specific principles of the Declaration of the Rights of the Child that were considered to be infringed if the deportation proceeded. In addition, the Commission was asked how it reconciled its view with a number of Federal court decisions relating to the relationship between human rights and domestic law in Australia. Particular mention was made of the case of Kioa v. Minister fo r Immigration, Federal Court, General Division, 15 May 1984, Unreported,

per Keely J., in which it was held that the rights of an Australian born child of illegal immigrants were not such as to compel their deportation to be restrained.

27. The Deputy Chairman replied to that letter on 31 May 1984 and expressed the view that, if the rights of the Australian born child were to be observed, the parents must be allowed to remain in Australia to care for that child. Otherwise there would be an infringement of the child’s human rights. The Assistant Secretary of the Entry

Regulation Branch made it clear, on 13 July 1984, to the Senior Conciliator of the Human Rights Commission that, acting on legal advice it had received, the Department of Immigration and Ethnic Affairs remained of the opinion that the rights of Alvin Au Yeung were not such as to require the proposed deportation of his parents to

be restrained. In the belief that the issues in this case might be considered by Cabinet, the Chairman of the Commission wrote to the then Attorney-General on 26 July 1984 setting out at some length the position of the Commission and what it perceived to

be the human rights issues involved. On 17 September 1984 the Minister for Immigration and Ethnic Affairs wrote to the Chairman conveying his final decision that the Au Yeungs must leave Australia within 14 days, or be deported. Finally, on 3 October 1984 the Minister wrote again advising that the Au Yeung family left Australia on 27 September 1984. It is clear that they did so in response to the threat of deportation and, to all intents and purposes, they were in fact, if not in law,

deported. On this basis, the Commission is of the opinion that its endeavours to achieve a successful settlement of the matters giving rise to the complaint have not been successful and that it should report the result of its inquiry and its endeavours to effect such a settlement.

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V. FINDINGS A N D RECOMMENDATIONS

28. Having conducted an inquiry into a Commonwealth act or practice complained of by Mr and Mrs R. C. Au Yeung, namely, their expulsion from Australia, the Commission finds that this act or practice is inconsistent with or contrary to human rights, in particular, the rights of their Australian born son Alvin 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 set out in the preceding pages of this report. Consequently, the Commission recommends that Mr and Mrs Au Yeung 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 is given to the paramountcy of the human rights of these children in the making of immigration decisions concerning their parents. The Commission further recommends that consideration be given to the question whether Australia’s international obligations in the field of human rights require it automatically to grant citizenship to the children of non-citizens born in Australia. Whilst the human rights of Australian citizens must invariably be observed, is it necessary for the children of prohibited non-citizens to become Australian citizens merely because they are born in Australia? It would seem that the current practice, in cases like this, is to treat them as if they were not citizens with the result that their human rights are denied. This is an unjust result, and it may be fairer in the long run to change the rule that birth in Australia automatically results in Australian citizenship, 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.

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VI. REFERENCE OF THE REPORT TO THE DEPARTMENT

29. In discharging its obligations under sections 14 and 16(2) of the Human Rights Commission A c t 1981 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. The Secretary to the Department

advised that he intends to report the Commission’s findings and recommendations to the Minister for Immigration and Ethnic Affairs for his consideration.

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