FEDERAL COURT OF AUSTRALIA

Tupou v Minister for Immigration & Multicultural Affairs [2001] FCA 225

AKENETE LEILANI TUPOU & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1135 of 1999

SACKVILLE J

SYDNEY

9 MARCH 2001

THE COURT ORDERS THAT:

1.      The application for interlocutory relief be dismissed.

2.      The first applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application for an interlocutory injunction to restrain the removal of the first applicant and the second applicant from Australia to Tonga.  That removal is scheduled to take place within the next hour and a half or so.  The first applicant is the mother of the second applicant.  The second applicant was born in Australia and is now nearly nine years of age. 

2                     The first applicant became an unlawful non-citizen in this country in 1985, when she overstayed her visitor’s visa.  For relatively short periods of time since then she has held a bridging visa granted in order to enable her to pursue an application for a protection visa.  That application was rejected by a delegate of the Minister and that rejection was affirmed by the Refugee Review Tribunal.  She became an unlawful non-citizen most recently when she overstayed her last bridging visa, which expired on 18 May 1999.

3                     The latest decision that affects the position of the first applicant is that of the Migration Review Tribunal on 16 February 2001.  In that decision the Tribunal affirmed a refusal to grant the first applicant a Bridging E (Class WE) Visa.  At the time the application was made for a bridging visa, the first applicant was in detention, apparently having been detained on or about 24 January 2001.  The second applicant was also taken into custody on that date.

4                     The difficulty confronting the first applicant in this application is that no submission has been made on her behalf that the Tribunal made any reviewable error in determining that the first applicant does not meet any of the relevant criteria specified in Schedule 2 to the Migration Regulations for the grant of a bridging visa, in particular cl 050.212. In the absence of any basis for contending that there has been such an error on the part of the Tribunal, there is no serious issue to be tried that the Tribunal’s decisions is liable to be set aside.  The applicant is an unlawful non-citizen liable to removal from Australia: Migration Act 1958 (Cth), s 198.  There is, in my opinion, no basis for the grant of an interlocutory injunction in her case.

5                     An application was also made to the Tribunal on behalf of the second applicant seeking to overturn a decision of a delegate of the Minister to deny him a bridging visa.  This application was apparently bought by the first applicant herself without the knowledge of her solicitor.  The Tribunal rejected that application on 7 March 2001, on the ground that the second applicant did not satisfy any of the relevant criteria governing the grant of a bridging visa.  Once again, no argument has been put that the Tribunal erred in law in making its determination, or that there is any other basis for setting aside the Tribunal’s decision.

6                     It is, however, said on behalf of the second applicant that he is not liable to be removed from Australia because he is an Australian citizen.  The basis for that contention is s 10(2) of the Australian Citizenship Act 1948 (Cth).  That provision is as follows:

“Subject to sub-section (3), a person born in Australia after commencement of Australian Citizenship (Amendment) Act 1986 shall be an Australian citizen by virtue of that birth if and only if

(a)               a parent of the person was, at the time of the person’s birth, an Australian citizen or permanent resident; or

(b)               the person has, throughout the period of ten years commencing on the day on which the person was born, been ordinarily resident in Australia.”

7                     There is a birth certificate in evidence which shows that the second applicant was born in Queensland in April 1992.  The birth certificate does not identify the father of the child.

8                     The first applicant has, however, sought and obtained a declaration from the Magistrates Court in Brisbane under s 106(4) of the Child Support (Assessment) Act 1989 (Cth) against a person she alleges is the father of the second applicant.  The declaration is to the effect that the first applicant is entitled to administrative assessment of child support for the second applicant.  In order for such a declaration to be made, the Court must be satisfied that the respondent is a parent of the child and is a resident of Australia on the day on which the application is made: see s 25.  The Court’s order was made on 6 October 2000.

9                     The proceedings in the Magistrates Court were undefended.  The application filed in those proceedings asserts that the respondent was, to the best of the applicant’s knowledge, a resident of Australia on the day the application for administrative assessment of child support was made.  The supporting affidavit says nothing about the source of the first applicant’s knowledge of the respondent’s residence in Australia at that date.  The affidavit does not address the question of the respondent’s citizenship or whether he was a permanent resident of Australia in April 1992, the critical date for the purposes of s 10(2) of the Australian Citizenship Act.

10                  No explanation has been given as to why, in the course of extensive dealings with the Minister’s representatives over a number of years (in some of which the applicants apparently were legally represented), it has not been suggested that the second applicant’s father was an Australian citizen or a permanent resident in April 1992.  The applicants have been legally represented on this occasion since 24 February 2001, but in the period between that date and today no application has been made to the Minister on behalf of the second applicant for a certificate of citizenship.  This is a procedure that could have been utilised to resolve any questions concerning his citizenship: see Australian Citizenship Act 1948 (Cth), s 32(1); Australian Citizenship Regulations, reg 8.  The procedure has been available throughout the long history of the dealings between the applicants and the Minister. 

11                  In my opinion, the evidence falls short of warranting the grant of an injunction at almost literally the last minute to restrain the removal of the second applicant.  I cannot rule out the possibility that evidence will ultimately be presented that shows that the second applicant is indeed an Australian citizen.  The evidence adduced before me, however, is not sufficiently cogent to justify restraining his removal from Australia.

12                  I have also borne in mind two factors.  The first is that there is no impediment to the second applicant making an application to the Minister to establish his citizenship and to obtain a certificate to that effect.  That course can be followed, notwithstanding that the child is outside Australia.  If so instructed, his legal representative can pursue the application on his behalf.  The second is that even if an order were to be made restraining the removal of the second applicant from Australia, it would not affect the first applicant’s position as an unlawful non-citizen.  It seems that she would still be liable to removal from Australia.

13                  I should mention one other point.  This application was apparently foreshadowed very late last night, although the supporting documentation was not then available.  It has been dealt with early this morning.  As has been noted, the Tribunal’s decision affecting the first applicant was given on 16 February 2001 and she obtained legal representation on 24 February 2001.  It seems that the first applicant’s representatives did not endeavour to ascertain from the Department when she or the second applicant might be removed from Australia in consequence of the Tribunal’s decision.  It is of great importance that applications of this kind should be made as soon as possible in advance of any proposed action to remove an applicant from Australia so that the Court has the opportunity to consider carefully material presented to it.

14                  I conclude that there is an insufficient basis for the grant of an interlocutory injunction in this case.  I therefore decline to grant the relief sought by the applicants. 

15                  The Minister’s representative has appeared at this hearing, apparently having been informed of it at 6 am this morning.  She has sought an order for costs.  I think that in the circumstances an order should be made that the first applicant pay the Minister’s costs of the application.

Associate:

Dated:              12 March 2001