Ms HM and Master YM v Commonwealth of Australia (Department of Home Affairs)

Ms HM and Master YM v Commonwealth of Australia (Department of Home Affairs)

[2018] AusHRC 127

Report into arbitrary interference with family and failure to consider the best interests of the child

Introduction to this inquiry

1. This is a report setting out the findings of the Australian Human Rights Commission (Commission) following an inquiry into a complaint by Ms HM and Master YM against the Commonwealth of Australia—specifically, against the former Department of Immigration and Border Protection and now the Department of Home Affairs (department) alleging breaches of his human rights.

2. Ms HM’s son, Master YM, was born in Australia and acquired Australian citizenship when he turned 10 years of age. He was 15 years of age at the time of Ms HM’s complaint to the Commission.

3. Ms HM is a South Korean citizen who arrived in Australia with her then husband and two daughters on 3 September 1998. Ms HM departed Australia in July 2016 after the then Assistant Minister for Immigration and Border Protection (Assistant Minister) declined to exercise her public interest power under s 417 of the Migration Act 1958 (Cth) (Migration Act) to grant Ms HM a visa allowing her to stay in Australia either permanently or for the period of Master YM’s secondary school education. Master YM remains in Australia and is currently completing year 12 at an inner-west high school. He is living in Youth Off the Streets accommodation.

4. Ms HM complains that the Assistant Minister’s decision not to intervene in her case led to a requirement that she leave Australia and this was inconsistent with Australia’s obligations under the Convention on the Rights of the Child¹ (CRC) and the International Covenant on Civil and Political Rights² (ICCPR).

5. This inquiry has been undertaken pursuant to s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

6. As a result of this inquiry, I find the following:

   • the decision of the then Assistant Minister for Immigration and Border Protection on 15 September 2015 not to exercise her discretionary powers to intervene in Ms HM’s case, leading to a requirement that Ms HM leave Australia, is an arbitrary interference with family, contrary to articles 17 and 23 of the ICCPR

   • the department’s 2015 submission to the Assistant Minister for the consideration of the exercise of her discretionary powers to grant Ms HM a visa failed to take account of Master YM’s best interests as a primary consideration on the basis of relevant information contemporaneous to the referral, contrary to article 3 of the CRC.

7. Ms HM has requested that her name and the name of her son not be published in connection with this inquiry. I consider that the preservation of their anonymity is necessary to protect their human rights. Accordingly, I have given a direction under s 14(2) of the AHRC Act and refer to the mother and son by the pseudonyms ‘HM’ and ‘YM’, respectively, in this document.

Endnotes