The ‘Best Interests’ of Asylum-Seeker Children

See, eg, UNHCR, ‘Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum’, February 1997; Refugee Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Commonwealth Commissioner for Children and Young People Bill 2010, <www.refugeecouncil.org.au/r/sub/1012-Child-Commissioner.pdf>.

See, eg, submissions from Liberty Victoria, Refugee Council of Australia and Australian Lawyers for Human Rights, in Senate Legal and Constitutional Affairs References Committee, Australia's arrangement with Malaysia in relation to asylum seekers, October 2011, 38.

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [‘Plaintiff M70/106’].

Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

Immigration (Guardianship of Children) Act 1946 (Cth), s 6(2)(b).

Ibid s 6A(1) provides that ‘A non-citizen child shall not leave Australia except with the consent in writing of the Minister.’

Ibid s 6A(2) [emphasis added].

Minister for Immigration and the Commonwealth of Australia, ‘Defendant's Submissions’, Plaintiff M70/106, [99] <http://www.hcourt.gov.au/cases/case-m70/2011>.

X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524, 535–38.

Ibid 535, cited with approval by the Full Federal Court in Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 (20 June 2002) at [88].

Immigration (Guardianship of Children) Regulations 2001 (Cth); DIAC Fact Sheet on Unaccompanied Children, <http://www.immi.gov.au/media/fact-sheets/69unaccompanied.htm>.

CROC, 20 November 1989, UNTS 1577, 3; Australian Human Rights Commission, A last resort? National Inquiry into Children in Immigration Detention,

May 2004, [17.2].

Australian Human Rights Commission, Immigration Detention on Christmas Island, 2012, 13. Serco Australia is the company which manages immigration detention centres in Australia.

The Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, 25 July 2011, Clause 8(2).

Written Submissions of Plaintiff (17/08/2011) and Human Rights Commission seeking leave to intervene in M106/2011 (17/08/2011), <http://www.hcourt.gov.au/cases/case-m70/2011>.

Defendant's Submissions, Plaintiff M70/106, [101] <http://www.hcourt.gov.au/cases/case-m70/2011>.

Ibid [102].

Ibid [101].

Plaintiff M70/106, above n 3, per Gummow, Hayne, Crennan and Bell JJ at 204; Kiefel J at 237.

Section 6(2) of the Immigration (Guardianship of Children Act) 1946 (Cth) - introduced pursuant to the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

Immigration (Guardianship of Children Act) 1946 (Cth), ss 8(2) and (3).

CROC, above n 12.

Committee on the Rights of the Child, General Comment 6, Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/GC/2005/6, 1 September 2005, [33].

Red Cross, Interagency Guiding Principles on Unaccompanied and Separated Children, January 2004, 47.

The Canada-United States Safe Third Country Agreement, 5 December 2002, Article 4(2)(c).

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing criteria and mechanisms for determining Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, 1) (‘Dublin Convention’), Article 6.

Charter on Fundamental Rights of the European Union, OJ 304/1, Article 24.

EU Council Directive on Minimum Standards on Procedures in Member States for granting and withdrawing refugee status, 1 December 2005, 2005/85/EC, Recital Clause (14).

EU Directive 201 1/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection (recast), [201 1] OJ L 337/9, Article 20(5) provides that ‘[t]he best interests of the child shall be a primary consideration for Member States’ in decisions involving minors.

EU Directive, above n 28. See also Articles 2(i) and 17(6).

European Court of Justice, Case C-648/11 - MA v Others, 6 June 2013 (not yet reported) [55].

See European Migration Network, Policies on Reception, Return and Integration arrangements for, and numbers of, Unaccompanied Minors - an EU comparative study - Synthesis Report, May 2010, 53–54.

Evidence to Senate Legal and Constitutional Affairs Committee, 30 March 2011, 16 ( Manne David ).

Minister for Families, Community Services and Indigenous Affairs, ‘Gillard Government to establish National Children's Commissioner’ (Media Release, 29 April 2012).

UNHCR, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Commonwealth Commissioner for Children and Young People Bill 2010, 16 December 2010, [14]

Senate Legal and Constitutional Affairs Committee, Inquiry into the Commonwealth Commissioner for Children and Young People Bill 2010, 16 December 2010, 66 [5.16].

I note that Crock Mary Kenny Mary Anne also discuss similar options for reform in ‘Rethinking the Guardianship of Refugee Children after the Malaysian Solution’ (2012) 34 Sydney Law Review 437, 464–65.

See, eg, Children's Commissioner for England, Landing in Kent: The experience of unaccompanied children arriving in the UK, February 2011