March 2016 Senator the Hon. George Brandis QC Attorney-General Parliament House Canberra ACT 2600 Dear Attorney, I have completed my report pursuant to section 11(1)(f)(ii) of the Australian Human Rights Commission Act 1986 (Cth) into the complaint made by two separate families, the Misinale family and the Lee family against the Commonwealth of Australia, Department of Immigration and Border Protection (department). I have found that the decision by the Assistant Minister for Immigration and Border Protection (Minister) to not intervene in either case, leading to the requirement that each set of parents leave Australia, is an arbitrary interference with family. I find this decision to be an act inconsistent with or contrary to Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR). In light of my findings I recommended that the department refer the matter back to the current Minister for further consideration of the use of his public interest powers. I further recommended that the Minister consider exercising his powers in a manner consistent with the findings set out in this report. The department provided its response to my findings and recommendations by letter dated 22 December 2015. On the basis of the contents of this report and the passage of time since the matter was considered by the then Assistant Minister, the department agreed to refer both cases to the current Minister for his personal consideration. The department’s response is set out in full at part 10 of this report. I enclose a copy of my report. Yours sincerely, Gillian Triggs President Australian Human Rights Commission Australian Human Rights Commission Level 3, 175 Pitt Street, Sydney NSW 2000 GPO Box 5218, Sydney NSW 2001 Telephone: 02 9284 9600 Facsimile: 02 9284 9611 Website:
Ms Teaupa came to Australia on a tourist visa in 1992, and disengaged from the department following its expiration. In 2012, she lodged an application for a protection visa, and challenged the department’s refusal decision at the Refugee Review Tribunal (RRT) where she was unsuccessful. She then made a ministerial intervention request under s 417 of the Migration Act in April 2013, which was submitted along with Mr Misinale’s request under s 351, and which was also refused. In March 2015, Ms Teaupa made a repeat request that the Minister intervene under s 351 in her and her husband’s case. The department was not satisfied that the request met the requirements for referral to the Minister, and subsequently the department declined to make a further submission to the Minister to consider intervention on behalf of Ms Teaupa and Mr Misinale. Ms Teaupa and Mr Misinale are currently on bridging visas. In the submission made by the department to the Minister in relation to the family’s ministerial intervention request, the department states that, should the Minister decline to intervene, steps to facilitate removal will be made by Compliance. The department confirmed to the Commission on 7 May 2015 that, on that date, it had no plans to remove the couple. Ms Teaupa and Mr Misinale say that they have been told by the department that they are expected to leave Australia. Conciliation The Commonwealth indicated that it did not want to participate in conciliation of either matter. Relevant legal framework This inquiry was conducted pursuant to s 11(1)(f) of the AHRC Act which gives the Commission the following functions: to inquire into any act or practice that may be inconsistent with or contrary to any human right, and: where the Commission considers it appropriate to do so – to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and 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 such a settlement – to report to the Minister in relation to the inquiry.