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Minors a major concern

LIJ (Law Institute Journal)

President and CEO

Cite as: Cite as: March 2012 86 (03) LIJ, p.6

By Michael Brett Young, LIV CEO

We need to protect the rights of all unaccompanied refugee minors.

“I believe Australia has a moral and social obligation to demonstrate a higher level of kindness . . . to refugees. I want all Australians to see how immigrants have contributed to our nation and to appreciate that a rich and prosperous country such as ours has a moral and global responsibility to share our resources.”

So said Dr Charlie Teo, the renowned brain surgeon and son of immigrants, in his Australia Day address earlier this year. He wanted 26 January 2012 to be a turning point in Australians’ attitudes to refugees.

The LIV stands behind Mr Teo’s words and sentiment. And so it was with great satisfaction that we saw the High Court of Australia take a step closer to a higher level of kindness towards refugee minors.

On 14 December 2011, the High Court handed down its decision in the matter of Sayed Abdul Rahman Shahi v Minister for Immigration and Citizenship. It held that a Global Special Humanitarian visa should be granted to the mother of Mr Shahi.

Mr Shahi is a refugee who came to Australia from Afghanistan as an unaccompanied humanitarian minor (UHM) and was granted a protection visa. In December 2009, he made a split family application, proposing that members of his immediate family – including his mother – be granted a visa to enter and remain in Australia.

Immigration law was interpreted by the Department of Immigration and Citizenship (DIAC) to require Mr Shahi be under 18 at the time he made the application for his mother to join him. At the time Mr Shahi applied, he was under 18 and it followed that his mother was a member of his immediate family.

However, in the time it took DIAC to make a decision about his mother’s visa, Mr Shahi turned 18. As a result, DIAC found that his mother ceased to be a member of Mr Shahi’s immediate family and the application was refused.

Mr Shahi sought judicial review of the decision and eventually, with a High Court majority, won the right to have his mother’s application assessed based on his age when he made it. This meant his mother continued to be considered part of his immediate family and assessable in the context of the visa application.

Proposers who may be affected by the Shahi decision can be divided into three groups – those who have had their split family applications refused, those who have submitted a split family application but not yet received a decision and those who have not yet applied.

According to Victoria Legal Aid (VLA), some unaccompanied refugee minors who are nearing 18 years of age have been advised that there is no point lodging a split family application as the chances of it being assessed and approved before they turn 18 are very remote.

Following the Shahi decision, all unaccompanied refugee minors have prospects of succeeding in a split family application so long as they are under 18 at the time their immediate family member’s application is lodged. It may be possible to seek judicial review of split family applications that have been refused on the basis of the relevant age criterion, or to seek review by DIAC.

The LIV has been working with the Law Council of Australia (LCA) on the issue of protecting the rights of UHMs. The LIV has made two submissions, one in 2011 and another in 2012, urging law reform to protect UHMs (see http://tinyurl.com/6p5zpn6).

The LIV is also working with a consortium of immigration service providers to meet the legal needs of UHMs affected by the landmark High Court decision. The consortium, including VLA, Springvale Monash Legal Service, PILCH and pro bono lawyers, has been working for nearly two years, with minimal funding, to get applications into DIAC for UHM family members across Victoria. (See http://tinyurl.com/6ut6hso)

But more help is needed. We need to make sure all UHMs are assisted – to make applications and to seek review if they have been wrongly refused – and I urge migration law practitioners to assist those affected by the Shahi decision through the LIV’s Legal Assistance Scheme (LIVLAS) where they can.

Consider the example set by former LIV Refugee Law Reform Committee chair, barrister Jessie Taylor. Ms Taylor, 29, has been fostering a teenage Afghan refugee for the past two years. She has also made several documentaries about issues facing refugees and asylum seekers. Her latest production, Between the Devil and the Deep Blue Sea (http://www.facebook.com/deepblueseafilm) is expected to be released in Australia this year.

To help practitioners advising proposers for split family applications, VLA has prepared a letter outlining the implications of the Shahi decision. VLA has also prepared a set of template documents that can be used to correspond with DIAC on behalf of an applicant and to make an application for judicial review. These documents are available on request.

For further information on assisting UHMs, and on LIVLAS, contact LIV Administrative Law and Human Rights Section lawyer Laura Helm at lhelm@liv.asn.au.

There is still time to register for the LIV’s Australian Legal and Financial Summit on 23 March. The inaugural summit’s five sessions will examine the impact of major legal changes on the business community and the broader Australian financial sector (Register online at www.liv.asn.au, see p5).

Lawyers will benefit from hearing what the impressive lineup of speakers, including demographer Bernard Salt, has to say about the law and business.




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