FEDERAL COURT OF AUSTRALIA

Molisi v Minister for Immigration & Multicultural Affairs [2001] FCA 420

MIGRATION - advice by an officer of the Department of Immigration as to the non-availability of various kinds of visas is not a reviewable decision under s 475 the Migration Act 1958 (Cth)

FAMILY LAW - no Court has power under s 68B and s 114(3) the Family Law Act 1975 (Cth) to make orders for injunctive relief against the Minister for Immigration

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss 48, 189, 198, 199, 475(1)(c)

Family Law Act 1975 (Cth) ss 65D, 68B, 114(3)

Racial Discrimination Act 1975 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 47

Judiciary Act 1903 (Cth) s 39B(1A)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 referred to

Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 referred to

Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197 referred to

Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 referred to

Secretary, Department of Veterans Affairs v P (1998) 79 FCR 594 referred to

Hooper v Kirella Pty Ltd (1999) 167 ALR 358; [1999] FCA 1584 referred to

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 applied

Re LSH; Ex parte RTF (1987) 164 CLR 91 applied

AMELIA MOLISI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 154 of 2000

SIONE and JOSHUA MOLISI (infants) by their next friend ESILOME MOLISI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 46 of 2001

DRUMMOND J

11 APRIL 2001

BRISBANE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

THE COURT ORDERS THAT:

1.         The application be dismissed.

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

REASONS FOR JUDGMENT

1                     I have before me an application by Mrs Molisi for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of what is said to be a decision of a delegate of the Minister given on 23 November 2000 that the applicant is barred by s 48 the Migration Act 1958 (Cth) from applying “for any other visa”, ie, other than the bridging visa then issued.  This temporary visa was issued to enable Mrs Molisi to make arrangements to leave Australia; it has been extended so that it will expire twenty-eight days after determination of these proceedings.

2                     When the matter came before me on 23 February, I was told that it was intended that application would be made on behalf of two of Mrs Molisi’s four children for orders against the Minister under the Family Law Act 1975 (Cth) directed to enabling Mrs Molisi, her husband and the other two children of the marriage to remain in Australia even though they may have no right under the Migration Act to do that.  I accordingly adjourned the matter for final hearing until yesterday.

3                     On 8 March 2001, an application was filed on behalf of the two oldest children of the marriage, Sione and Joshua, by Mr Molisi as their next friend seeking parenting orders under s 65D the Family Law Act to the effect that the two children reside in Australia with their parents, Mr and Mrs Molisi, and an order under s 114(3) the Family Law Act that the Minister be restrained from detaining the applicants’ parents pursuant to s 189 the Migration Act and that he be further restrained from removing the parents from Australia pursuant to s 198 or 199 the Migration Act.

4                     One aspect of the facts of this case makes it particularly troubling in view of the absence of any residual discretion in the Minister to ameliorate the impact of the highly prescriptive scheme of migration control contained in the Migration Act and Regulations.  That aspect is the acquisition of Australian citizenship by Sione and Joshua as a result of the long period of time that has passed since their birth and subsequent continuous residence here with their parents and what appears to be the delay on the part of the Department in implementing action to remove Mr and Mrs Molisi from Australia.

5                     Mrs Molisi was born in Tonga in 1962.  Mr Molisi was born in 1958, also in Tonga.  The relevant chronology, taken in large part from the detailed submissions of the Minister’s counsel based on Departmental records, is as follows:

December 1984           Mrs Molisi comes to Australia on a temporary visitor visa.

March 1985                 Mrs Molisi’s visa expires.

June 1985                    Mr Molisi comes to Australia in 1985, on a temporary migration authorisation.

September 1985           Mr Molisi’s visa expires.

January 1988                Mr and Mrs Molisi marry in Sydney.

29 March 1989            Sione born.

16 February 1990        Application by Mr Molisi for an Extended Eligibility Temporary Entry Permit covering himself, his wife and Sione

6 July 1990                  Joshua born.

18 January 1991           Department of Immigration, Local Government and Ethnic Affairs formally advises Mr Molisi of refusal of his application for the temporary entry permit.  In this advice the Department further stated:

“Your entry permit allowed you to remain in Australia until 16/09/85 and you have been staying in Australia illegally since then.  The Migration Legislation Amendment Act 1989 came into force on 19 December 1989 and you therefore became an illegal entrant from that date … your migration status in Australia continues to be that of an illegal entrant.  Any person who becomes an illegal entrant is given a period of grace in which to leave Australia.

The ‘period of grace’ is 28 days after the person becomes an illegal entrant …

In your case you became an illegal entrant on 19/12/89 and the period of grace expired before you applied for this entry permit.  You must immediately arrange to depart from Australia as you have now become liable to deportation.”

22 February 1991        Mr Molisi made an application for review of the decision to refuse the temporary entry permit.

14 January 1992           The Immigration Review Tribunal wrote to Mr Molisi expressing the opinion that it was doubtful that he was entitled to the temporary permit sought but, in view of the Tribunal’s duty to investigate whether he might be eligible to apply for an entry permit of another type, it invited him to provide further relevant information.

30 January 1992           Ane Saimanunu born.

14 February 1992        Mr Molisi lodges a form with the Department of Immigration entitled “Application to Remain Permanently in Australia Under Concessions for Persons Illegally in Australia”.  The application lists, as Mr Molisi’s family members including in it as persons already in Australia and who wish to remain here permanently, Mrs Molisi, Sione (then two years of age), Joshua (then one year old) and Ane (then two weeks old).  The date of birth of each of the children is set out in the application.

14 April 1992               Mr Molisi informed the Immigration Review Tribunal of his decision to withdraw his Application for Review of the Minister’s Decision to Refuse the Temporary Entry Permit.

22 May 1992               The Minister’s delegate formally advises Mr Molisi of refusal of his application as a person illegally in Australia.  The officer also then said:

“If your nominator does not apply for review to the IRT within 28 days of the date of this letter, you are expected to depart Australia immediately.”

6 April 1993                 Mr Molisi lodges with the Department a form headed “Application to Remain Permanently in Australia People Illegally in Australia on or before 18 December 1989”.  This application also lists Mrs Molisi, Sione (now four), Joshua (now three) and Ane (now one) as “family members included in this application who are in Australia and wish to remain permanently”.

15 June 1994               Application for a Protection Visa lodged in respect of Mr and Mrs Molisi, Sione, Joshua and Ane.

11 May 1995               The Minister’s delegate determines that Mr Molisi is not eligible to make his application of 6 April 1993 for an entry permit.  The delegate, in her decision, referred to this unsuccessful application and stated:

“… to be entitled to make a further application, he would have to demonstrate that since he last applied for an entry permit, there has been a prescribed change in his circumstances.

Regulation 2.10 of the Migration (1993) Regulations lists all the changes of circumstances prescribed in relation to a person …

Mr Molisi is none of the above …”

19 July 1995                Application for Protection Visa refused by Minister’s delegate.

8 August 1995              Application on behalf of Mr and Mrs Molisi and their then three children lodged for review of the delegate’s decision to refuse the Protection Visa.

26 March 1996            Deborah born.

24 June 1996               Refugee Review Tribunal affirms decision of delegate to refuse Protection Visa.

31 July 1996                Application in respect of Mr and Mrs Molisi and all four of their children to the Minister to exercise his discretion in their favour under s 417 the Migration Act 1958 (Cth).

2 August 1996              Mr Molisi lodges with the Department another “Application to Remain Permanently in Australia”.  Under “Details of all family members wishing to remain permanently in Australia included in this application”, Mr Molisi includes Mrs Molisi, Sione (now seven years old), Joshua (now six years old), Ane (now four years old) and Deborah (called Tepola, now three months old).  Again, the dates of birth of all four children are given.

4 March 1997              The Minister’s delegate formally advises Mr Molisi that his application of 2 August 1996 did not constitute a valid application for a visa on the following ground:

“(d)     the applicant, if not the holder of a substantive visa, must not have had a visa refused or cancelled (apart from a bridging visa) since last entering Australia …”

The Delegate further stated:

“As you are not an applicant for a substantive visa, the bridging visa you currently hold may be cancelled.  You have an obligation under the law to contact this office within 7 days of the date of this letter to discuss the cancellation of your bridging visa and your future options …  Failure to do so may result in your becoming an unlawful non-citizen.  Unlawful non-citizens are subject to detention and removal from Australia …

The determination about the invalidity of your substantive visa application is not reviewable.”

25 November 1997      Minister declines to exercise his discretion under s 417. 

17 March 1998            Mrs Molisi lodges with the Department “Application for a Bridging E Visa (class 050)” based on her application to the Federal Court as the member of a class action.

16 December 1998      An officer in the Department’s compliance section formally advises Mrs Molisi of refusal of this application on the ground that “At the time you lodged this application there was no legislative provision to grant you a Bridging E Visa on these grounds …”.  The officer also advises:

“As you are unlawfully in Australia you should apply for a Bridging Visa E under the new rules that came into effect on 1 July 1998 …”

28 March 1999            Sione becomes an Australian citizen by force of s 10(2)(b) the Australian Citizenship Act 1948.

5 July 2000                  Joshua similarly becomes an Australian citizen.

22 November 2000      Mr Price, an Immigration Inspector with the Department, locates Mrs Molisi and her family at their home in Woodridge “as a result of inquiries which I had been undertaking on an ongoing basis”.

23 November 2000      By arrangement with Mr Price, Mr and Mrs Molisi and some of their children meet with him at his office.  Mr Price acknowledged that Sione and Joshua were Australian citizens and says:

“I advised the Applicant that she, her husband and two youngest children were unlawful non-citizens and liable to removal from Australia by the Department.”

Mr Price says that at the meeting:

“I advised the Applicant that in accordance with s 48 of the Act there were a limited number of prescribed visas for which she, her husband and two youngest children could apply.  I then consulted reg 2.12 which prescribes the classes of visas for the purposes of s 48 of the Act.  I advised the Applicant that although she and her family were eligible to apply for all the visas prescribed by reg 2.12, they could only satisfy the visa conditions applying to a Bridging E Visa.  Condition 8512 of the Bridging E Visa would require the Applicant and her family to make satisfactory arrangements to depart Australia by the date specified.

The Applicant then applied for Bridging E Visas for herself and her family (with the exception of [the two Australian citizen children] Sione and Joshua).  I accordingly granted such visas  valid for 7 days (until 30 November 2000) …  The Applicant handed to me documentation (including birth certificates and passports) held by her family on the basis that I would make arrangements to renew such documentation so as to allow the Applicant and her family to make the necessary arrangements to leave Australia. …”

29 November 2000      Application lodged by Mrs Molisi for review of what is described as “the decision” of Mr Price that the applicant is barred from applying for any visa other than the bridging visas granted by Mr Price that day.

29 November 2000      Applications by Mr and Mrs Molisi and the two youngest children for bridging visa E - subclass 050 made and granted, such visas to remain in force until twenty-eight days after the outcome of the present proceedings.

6                     Section 189 the Migration Act imposes a mandatory duty on an officer who knows that a person in the migration zone is an unlawful non-citizen to detain that person.  Section 194 obliges an officer who detains such a person to ensure that the person is made aware of the provisions of ss 195 and 196.  Section 195 entitles such a detainee to apply for a visa within two working days after the day on which the person receives such advice from the officer.  Section 195(2) provides that a detainee who does not apply for a visa within that time may not apply for a visa, other than a bridging visa or a protection visa, after that time.  Section 198(5) casts a mandatory duty on an officer to remove “as soon as reasonably practicable” such an unlawful non-citizen detainee entitled to but who has not applied for a visa in accordance with s 195.  It is apparent from the chronology that officers of the Department, long before the dates on which these two children became Australian citizens, knew of their presence and the presence of their mother and father and other two siblings in Australia and also knew that all were unlawful non-citizens during various periods when they had no visa applications under consideration.  In the period between 22 May 1992 and 6 April 1993, the Molisis had no application of any kind before the Department for its consideration.  The same was the position between 25 November 1997 and 17 March 1998 and after 16 December 1998, until 23 November 2000.  During various other periods, each substantial in extent (eg, in the twenty-five month period it took the Department to reject Mr Molisi’s application of 6 April 1993), the Molisis appear to have had no lawful entitlement to stay in Australia, though they had various applications before the Department for consideration.  Provisions similar to ss 189 and 198 of Division 7 and Division 8 of Part 2 the Migration Act 1958 (Cth) have been in force since 1992, ie, since well prior to Sione, and then Joshua, acquiring Australian citizenship on the tenth anniversary of each’s birth in Australia.  None of those provisions were invoked against Mr and Mrs Molisi and any of their four children before Sione and Joshua became Australian citizens even though, for a substantial period of time before that event, Departmental officers had knowledge of their presence in Australia as unlawful non-citizens.

7                     The Minister acknowledges that Sione (now twelve years of age) and Joshua (now ten years of age), as Australian citizens, cannot be removed from Australia.  The Minister’s position, however, is that the provisions of the Act to which I have referred compel him to remove Mr and Mrs Molisi and the two younger children from Australia whether or not this involves breaking up the family:  he has no discretion under the Migration Act to do anything else.

8                     It is necessary now to turn to Mrs Molisi’s application for judicial review of what is said to be Mr Price’s decision of 23 November 2000.  The Minister has filed a notice of objection to the competency of the application on the ground that it “does not disclose a decision which is reviewable pursuant to s 476 of the Migration Act 1958.”

9                     It is only if Mr Price, on 23 November last, made a determination within s 475(1)(c) the Migration Act - “other decisions made under this Act or the regulations, relating to visas” - that there will be a judicially reviewable decision.  Otherwise the application for review will, as the Minister contends, be incompetent.

10                  For a determination to amount to such a “decision”, it must have the quality of being final or operative or determinative, at least in a practical sense, of an issue falling for consideration: it must be a substantive determination.  Cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.  The only decision of that character relating to visas which Mr Price made on 23 November was to issue the bridging visas.  In his other dealings with Mr and Mrs Molisi on that day, he did not go beyond expressing his opinion as to the non-availability of any other form of visa.  It is clear that he did not purport to refuse applications then made by Mr or Mrs Molisi for any other visa.  There is nothing that I can see in what Mr Price did leading up to issuing the bridging visas that could be said to amount to such a “decision”:  see Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 341.

11                  Mrs Molisi’s pro bono legal representatives having been granted leave to withdraw by order of the District Registrar made prior to yesterday’s hearing, I gave leave to Mrs Molisi to be represented in these proceedings by a friend, Mr Fonua.  He offered no submissions throwing any doubt on the absence of any judicially reviewable decision.  The objection to competency must therefore be upheld and the application dismissed.

12                  I should mention that Mr Fonua pointed out that Mrs Molisi, on 7 December 2000, had given “notice of constitutional matters under s 78B the Judiciary Act 1903 (Cth)”.  No argument was put forward in support of any of the five assertions that the Commonwealth Parliament acted unconstitutionally in enacting the Migration Act and the Migration Regulations 1994 (Cth) because of the various impacts they are said to have on Australian citizen children in the position of Sione and Joshua.

13                  That the Migration Act may authorise the making of regulations having an unjust effect in their practical application to individuals, including the effect of uprooting Australian citizen children from their country of birth and citizenship, does not, I think, provide any ground for doubting the constitutional power of the Parliament to pass such legislation.  Cooper J rejected the same kind of arguments asserted in the notice before me in Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 at pars [45] to [49].  His decision on this point was upheld by the Full Court:  see Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197 at par [16].

14                  No question of constitutionality, in my opinion, can arise even if it were established that regulations have been made under the Migration Act providing for the differential treatment of some entrants on the basis of their nationality.  Quite apart from the untenable notion that the Racial Discrimination Act 1975 (Cth) and a Ministerial declaration under s 47 the Human Rights and Equal Opportunity Commission Act 1986 (Cth) each fetters the legislative power of the Commonwealth Parliament to enact statutes inconsistent with the Racial Discrimination Act and a declared international instrument, the foundation for the assertion that the Racial Discrimination Act prohibits discrimination on the basis of nationality is unfounded:  see Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 471 - 472.  In any event, compliance by an official with a statutory duty imposed, eg, by the Migration Act cannot involve any breach of the Racial Discrimination Act:  see Secretary, Department of Veterans Affairs v P (1998) 79 FCR 594 at 597 - 598.

15                  It remains to consider the application for orders under the Family Law Act 1975 (Cth).  This was based upon the undisputed evidence of Mr Molisi that the welfare of the two Australian citizen children, Sione and Joshua, will be harmed if, as is likely, their parents have no practical option but to take them with them when they and the two younger children are compelled to leave Australia.  That evidence, not disputed, is that Sione and Joshua will be uprooted from their country of birth where they have lived the whole of their lives and will have to go to one of the outer islands in the Tongan group from which Mr Molisi comes.  They will have language difficulties, not being fluent in Tongan.  Educational and health facilities there are greatly inferior to those available to Sione and Joshua here.

16                  However, counsel who appeared for the children on this application stated that he could identify no basis upon which he could contend that this Court could make orders of the kind sought including injunctive orders under s 68B the Family Law Act (or under s 114(3), the provision relied on in the application).

17                  Counsel for the Minister has prepared written submissions to the effect that this Court has no jurisdiction under any source of power, including s 39B(1A) the Judiciary Act 1903 (Cth), to deal with applications for orders under the Family Law Act.  In Hooper v Kirella Pty Ltd (1999) 167 ALR 358; [1999] FCA 1584 at par [71], the Full Court expressly left open the question whether this Court has jurisdiction under s 39B(1A) to make orders in respect of family law matters and to make orders under the provisions of the Family Law Act.  It is, however, unnecessary in the present case to express any conclusion on those issues because counsel has also submitted, in a detailed and careful argument that, even if this Court has jurisdiction to make parenting orders and to grant an injunction under a provision such as s 68B the Family Law Act, those provisions, properly construed, do not confer power on any court to defeat the rights or enlarge the obligations of persons who are neither parties to the marriage nor in some way connected with the personal relationship out of which the matrimonial litigation has arisen:  it is said that the Minister is therefore not a person in respect of whom the power to issue an injunction under s 68B extends.

18                  In Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337, Gibbs J (Stephen, Aicken and Wilson JJ agreeing) said (at p 349) of the power conferred on the Federal Court by s 114(3) to grant injunctions that, though the orders in question, which were in the form of mandatory injunctions against strangers to the marriage relationship, “fall within the literal words of s 80 and s 114(3) and that they were made in aid of the jurisdiction of the Family Court”, they could not be sustained for reasons set out at 354:

“The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party.  They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform.  The general words of ss. 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words.”

19                  Counsel also referred to Re LSH; Ex parte RTF (1987) 164 CLR 91 where Mason CJ pointed out that, wide though the Family Court’s jurisdiction to issue injunctions against third parties by way of ancillary relief for the purpose of protecting and enforcing rights or claims to custody or access of children are, they do not extend to authorising the grant of an injunction restraining a stranger to the marriage of which the child is issue from making an application for adoption of the child in accordance with the relevant State adoption legislation.  The approach to construction of the Family Law Act provisions identified in Ascot Investments, and applied in Re LSH, would operate to deny the Family Court itself power under s 114(3), and provisions such as s 68B, to enjoin a public official from performing duties cast on the official by an enactment of the Parliament, even if more general canons of construction would not require such a reading of the relevant family law provisions.

20                  I hold that, even if I have jurisdiction to issue an injunction under s 68B (or s 114(3) for that matter) of the Family Law Act in a proper case, (a point I leave open), those provisions, properly construed, do not empower me to restrain the Minister and his officers from performing mandatory duties cast on them by the provisions of s 189 and 198(5) the Migration Act, though performance of those duties will have a serious detrimental impact on the welfare of two Australian citizen children of Mr and Mrs Molisi’s marriage.

21                  This application too must be dismissed.

Associate:

Dated:              11 April 2001

Q 154 of 2000

Q 46 of 2001