FEDERAL COURT OF AUSTRALIA

Mashood v Commonwealth of Australia [2003] FCA 1147

MIGRATION – application by children born in Australia but not entitled to citizenship by virtue of s 10(2) Australian Citizenship Act 1948 (Cth) – expiration of visas of one child and her parents and pending expiry of visa of second child – challenge by unrelated party to the validity of s 10(2) Australian Citizenship Act 1948 (Cth) currently before the High Court – application for interlocutory relief on behalf of the children pending determination of matter before the High Court – whether serious issue to be tried evidenced by existing legal challenge – whether denial of liberty constitutes irreparable injury – application for interlocutory relief on behalf of the children’s parents – no rights or entitlements would accrue to the parents as non‑citizens within Australia if children were found to be Australian citizens – whether Court can grant interlocutory relief to restrain detention and deportation of parents pursuant to the Migration Act 1958 (Cth) – consideration of Court’s parens patriae jurisdiction.

Migration Act 1958 (Cth):  ss 189, 198

Australian Citizenship Act 1948 (Cth):  s 10(2)

Federal Court of Australia Act 1976 (Cth):  s 23

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, applied

Re Minister for Immigration and Multicultural Affairs; Ex parteTe(2002)193ALR37,referredto

Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420, applied

Richardson v Forestry Commission (1998) 164 CLR 261, referred to

Jackson v Sterling Industries Ltd (1987) 162 CLR 612, applied

Peniche v Vanstone (1999) 96 FCR 38, referred to

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, applied

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

Nevsky v Scott [2002] FamCA 860, considered

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, considered

Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218, referred to

Wellesley v Wellesley [1828] 4 ER 1078, referred to

MinisterforImmigrationandMulticultural Affairs vW157/00A[2002]FCAFC 281,referredto

Tait v R (1962) 108 CLR 620, applied

FATHIMA SHANEEZA MASHOOD and SHAN IFTHIKAR MASHOOD (Infants by their next friend GALAGAWA VIDANALAGE GEDARA IFTHIKAR AHMED MASHOOD) v COMMONWEALTH OF AUSTRALIA and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 903 of 2003

GOLDBERG J

21 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The second respondent whether by herself, her servants, her agents or otherwise howsoever be restrained pending the determination of this proceeding or further order from causing, directing or permitting the applicants to be taken into detention or immigration detention whether pursuant to s 189 of the Migration Act 1958 (Cth) or otherwise or to be removed from Australia whether pursuant to s 198 of the Migration Act 1958 (Cth) or otherwise.

2.         The application for interlocutory relief in favour of the parents of the applicants is dismissed.

3.         The applicants file and serve an outline of submissions on or before 24 November 2003.

4.         The respondents file and serve an outline of submissions on or before 22 December 2003.

5.         The matter be fixed for hearing on a date not before 22 December 2003.

6.         The costs of all parties of and incidental to the hearing on 15 October 2003 and this day be reserved.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicants are two young children aged respectively eight  and two years old who bring the proceeding by their father as their next friend.  Their parents are citizens of Sri Lanka who arrived in Australia on visitor visas on 12 April 1995.  The applicant daughter was born at Southport, Queensland on 17 August 1995 and the applicant son was born at Epping, Victoria on 24 September 2001.  The evidence placed before the Court is lacking in some detail but the essential facts were supplemented in the course of submissions and are not in dispute. 

2                     In Sri Lanka the applicants’ father was employed as a pharmaceutical representative and the applicants’ mother was employed as a receptionist.  When they arrived in Australia the father obtained work as a confectioner and his wife obtained work as a process worker.  However, the terms of their recent bridging visas have not allowed either of them to engage in paid employment and so they have been living from their savings. 

3                     According to the applicants’ father, after he and his wife arrived in Australia they “sought asylum under the Refugee Convention”.  I take this to be a reference to the fact that the parents applied for a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”) on the grounds that they claimed to be refugees in accordance with the provisions of Art 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  The parents were granted bridging visas pending the determination of their application.  Apparently their application was rejected by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) or its predecessor Department, and by the Refugee Review Tribunal (“the Tribunal”).  It appears that the parents applied to the Federal Court to review the decision of the Tribunal but that application for review was dismissed.  The parents sought “the intervention of the Minister for Immigration”.  I take this statement to be a reference to the fact that the parents requested the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) to exercise the power committed to him pursuant to s 417 of the Act to substitute for the decision of the Tribunal a decision more favourable to them.  Whilst that request was outstanding the parents were given further bridging visas until 3 October 2003.  The Minister declined to exercise his power pursuant to s 417 as requested or perhaps declined to consider whether he would exercise his power pursuant to s 417(1) of the Act.  The evidence did not include the Minister’s response to the parents’ request.

4                     The applicants’ father said that he had been told by officers from the Compliance Section of the Department that he and his wife and their children would have to leave Australia by 3 October 2003, or words to that effect.  In the course of the hearing I was told that the bridging visas of the parents and the applicant daughter would expire on 15 October 2003 and that the only further bridging visa which might be issued was a 30 day Subclass 050 – Bridging (General) visa if they met the requirement that the Minister could be satisfied that they were making acceptable arrangements to depart Australia.

5                     Although the bridging visas of the parents and the applicant daughter expired on 15 October 2003, the applicant son has been issued with a separate bridging visa to that of his parents and his sister because he was not born at the time the parents’ original application for protection visas was made.  The son, no doubt through his parents as his next friend, had applied to the Tribunal to review the decision of the Department refusing his application for a protection visa.  The hearing of that application has been held and the decision is to be handed down on 31 October 2003.  The terms of the son’s visa are such that if the application to the Tribunal is dismissed and the decision to refuse to grant the son a protection visa is affirmed, his bridging visa will expire 28 days after 31 October 2003.  The father has said that if the decision of the Tribunal is adverse to his son then he does not intend to seek, on his son’s behalf, to appeal the decision so that the applicant son’s bridging visa would lapse on 28 November 2003. 

6                     The children and their parents wish to remain in Australia.  The applicant daughter attends Our Lady’s Primary School in Craigieburn.  She speaks English with an Australian accent and does not speak Sinhalese which is the language used in schools in Sri Lanka.  The applicant son is too young to attend school.  He speaks English and does not speak Sinhalese.  He is cared for at home by his parents. 

The substantive proceeding

7                     The applicant children, and their parents, claim that the children acquired Australian citizenship by their birth in Australia pursuant to the provisions of s 10 of the Australian Citizenship Act 1948 (Cth) (the “Citizenship Act”).  They contend that s 10(2) of the Citizenship Act, which will deny them Australian citizenship, is not a valid law of the Commonwealth.  In such circumstances they contend that the obligation to detain unlawful non‑citizens pursuant to s 189 of the Act and the obligation to deport unlawful non‑citizens, contained in s 198 of the Act, has no valid application to them. 

8                     Section 10 of the Citizenship Act is in the following terms:

“(1)     Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

(2)       Subject to subsection (3), a person born in Australia after the commencement of the 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 a permanent resident; or

(b)              the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.

(3)       …”

9                     On 25 September 2003 the children, by their father as their next friend, filed an application in the Court seeking declaratory orders that they had each acquired Australian citizenship by birth and Australian nationality as “subjects of the Queen” by birth.  They also sought declarations that s 10(2) of the Citizenship Act was not a valid law of the Commonwealth and that s 198 of the Act was not applicable to them.  They sought permanent injunctions restraining the Minister from causing or permitting their detention or removal from Australia and they also sought an injunction restraining the Minister from causing or permitting the detention of their parents or the removal of their parents from Australia.

10                  Their application for interlocutory relief was in the following terms:

“2.       An order by way of injunction restraining the Second Respondent from causing or permitting the Applicants or either of them to be removed from the Commonwealth of Australia until fourteen (14) days have elapsed from the High Court handing down its judgment in matter number S441 of 2003 or otherwise until further order of this Court;

3.         Order by way of injunction restraining the Second Respondent from causing or permitting the applicant’s father and mother or either of them to be removed from the Commonwealth of Australia until fourteen (14) days have elapsed from the High Court handing down its judgment in matter No. S441 of 2003 or otherwise until further order of this Court;

4.         Pending further order, an order by way of injunction restraining the Second Respondent from causing or permitting the Applicants or either of them to be taken into immigration detention.

5.         Pending further order, an order by way of injunction restraining the Second Respondent from causing or permitting the Applicants’ mother or father or either of them to be taken into immigration detention.”

11                  It is that claim for interlocutory relief which was the subject of a hearing on 15 October 2003. 

The claim for interlocutory relief by the applicant children

12                  The applicants submitted that the principles governing the grant of interlocutory injunctions to be applied were those summarised by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 where his Honour said at 153:

“The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration.  In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.”

13                  The application for interlocutory relief needs to be considered separately insofar as it relates to the applicant children on the one hand and their parents on the other hand.  The applicant children put their application for interlocutory relief on the basis that they had to show that there was a serious question to be tried that s 10(2) of the Citizenship Act was unconstitutional, that they would suffer irreparable injury for which damage would not be an adequate compensation if they were taken into immigration detention or removed from Australia, and that the balance of convenience as between the consequences for them on the one hand and the consequences for the Commonwealth and the Minister on the other hand favoured the grant of an injunction. 

14                  The applicant children submitted that the fact that there was a serious question to be tried as to the constitutional validity of s 10(2) of the Citizenship Act was demonstrated by another matter presently before the High Court of Australia.  Plaintiff S441 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCATrans 258 came before Kirby J in the original jurisdiction of the High Court.  The applicant, a five year old girl, born in Australia to parents of Indian citizenship, had sought substantive relief which was identical to the substantive relief sought by the applicant children in the present case.  A reading of the transcript of the hearing before Kirby J on 4 August 2003 supports the submission that there is a serious question to be tried in the form submitted by the applicant children.  Kirby J accepted that there was a serious issue to be determined and referred the matter to a Full Bench of the High Court.  The hearing has not yet been held but I was informed that it was anticipated that the matter would be heard in December this year.

15                  Section 10 of the Citizenship Act has evolved over the years and a helpful consideration of its provisions is found in the decision of the Full Federal Court in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303.  For present purposes it is not necessary to rehearse that evolution.  Essentially the applicants submitted that there was no head of constitutional power specifically relating to Australian citizenship.  They noted the observation of Gleeson CJ in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 399:

“The concept of citizenship does not appear in the Constitution.  It emerged in the Australian Citizenship Act 1948 (Cth).” 

They submitted that, as there is no specific constitutional power relating to citizenship itself, it was necessary to consider possible relevant heads of constitutional power.  They submitted that s 51(xix) which empowers the Parliament to make laws with respect to “naturalization and aliens” and s 51(xxvii) which empowers the Parliament to make laws with respect to “immigration and emigration” could not support legislation applying to the applicants who were born in Australia or to any other person born in Australia.

16                  The applicants relied on the reasoning of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 193 ALR 37 where his Honour said at 42:

“Immigration and emigration are activities.  Immigration is ‘an activity whichex vi termini is one day to be completed and looks forward (usually, at any rate) to that day.’  That does not mean that only a person who intends to settle in Australia is an immigrant for the purposes of the power.  Nor does it mean that the power to make laws with respect to immigration is in all respects limited in time to the duration of that activity.  But a law which purports to expel, or authorise the expulsion of, a person who has become absorbed into the Australian community, so that the activity of immigration has ceased, will not bear the character of a law with respect to immigration.  If, however, the person in question entered as an alien, and that status has not altered, then such a law may be supported by the power to make laws with respect to aliens.  As Mason CJ said, in Cunliffe [v Commonwealth (1994) 182 CLR 272], ‘an alien who has been absorbed into the Australian community ceases to be an immigrant, though remaining an alien.’”  (footnotes omitted)

17                  The applicant children submitted that, as they were born in Australia, they were never engaged in the activity of immigration, that in any event the immigration power did not authorise or validate s 10 of the Citizenship Act, and that Parliament could not treat them as aliens by the enactment of s 10 of the Citizenship Act, relying upon Pochi v Macphee (1982) 151 CLR 101 at 109‑110 and Re Patterson; Ex parte Taylor (supra) at 431.

18                  The respondents did not contest that there was a serious question to be tried in relation to the applicant children.  However, the respondents submitted that there was no serious question to be tried which would warrant the grant of relief in relation to the parents and I will return to this issue.

19                  The applicants submitted that they would suffer irreparable injury for which damages would not be an adequate compensation if an interlocutory injunction was not granted, as they would be taken into immigration detention and ultimately deported from Australia.  They submitted that they would suffer substantial trauma and psychological harm if they were placed and kept in an immigration detention centre pursuant to s 189 and s 196 of the Act.  They relied upon evidence from Dr Michael Dudley, a qualified psychiatrist employed at the Prince of Wales Hospital in Randwick, New South Wales. 

20                  The respondents objected to the admissibility of Dr Dudley’s evidence on the grounds of relevance, hearsay and that material was deposed to which went beyond Dr Dudley’s expertise.  There is substance in the respondents’ objection.  However, I do not need to rely on Dr Dudley’s evidence or on the two Amnesty International reports relied upon by the applicants in relation to the conditions in detention centres in Australia to make a finding of irreparable injury.  A basis for that finding can be found in the fact of detention, irrespective of the conditions of detention.

21                  Loss or deprivation of liberty, even for a short time, is a matter of irreparable harm.  The right to enjoy personal liberty is “the most elementary and important of all common law rights”:  Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagar J.  In Re Bolton; Ex parte Beane (1987) 162 CLR 514 Brennan J said at 523, “The law of this country is very jealous of any infringement of personal liberty …”  Liberty is a precious and valued right.  Much blood has been shed in defence of liberty.  In Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420, French J said at [27]:

“Liberty lost is never recoverable even if partially compensable by damages.”

I adopt with respect his Honour’s observation, although I am inclined to doubt the proposition that liberty lost can be compensated, even partially, by the award of a monetary sum.

22                  The respondents submitted that there was no threat of imminent removal of the children from Australia so that there would be no irreparable harm to the children if interlocutory relief was not granted.  However the respondents were not prepared to offer any undertaking on an interlocutory basis which would obviate the necessity for injunctive relief.

23                  I am satisfied that irreparable harm would be suffered by the applicant children if they were taken into immigration detention and ultimately removed from Australia because they would be deprived of their liberty for a period of time and would not be in a position to have their case before the Court prosecuted in the same way as it would be if they were either not in immigration detention or were not removed from Australia.  Such harm is now imminent so far as the applicant daughter is concerned and may become imminent for the applicant son towards the end of November.

24                  The respondents did not seriously challenge the proposition that deprivation of liberty by being taken into immigration detention would cause irreparable injury if it ultimately turned out to be unlawful due to the fact that the exercise of the power of detention under s 189 cannot apply to an Australian citizen.

25                  The applicants submitted that the balance of convenience was clearly in their favour having regard to the consequences which would befall them if an injunction was not granted.  The respondents submitted that, in considering the balance of convenience, the Court should take into account the principle that a statute subject to constitutional challenge should be assumed to be valid unless and until it is shown to be invalid.  The principle was cogently put by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (supra) at 155‑156:

“In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.”

See also Richardson v Forestry Commission (1998) 164 CLR 261 at 275‑276.

26                  Giving due weight and consideration to this principle, I nevertheless consider that the balance of convenience is in favour of the grant of interlocutory relief so far as the applicant children are concerned having regard to the serious consequences to their liberty and well-being if they are taken into and kept in immigration detention pursuant to s 189 and s 196 of the Act and ultimately removed from Australia pursuant to s 198.

27                  The respondents submitted that there was no imminent risk of the applicant son being the subject of an exercise of power under s 189 or s 198 of the Act as his bridging visa would not expire until around 28 November 2003, assuming the Tribunal handed down its decision in respect of his application on 31 October 2003.  However, the handing down of that decision is less than two weeks away and it is desirable to avoid a multiplicity of interlocutory proceedings.  Having regard to the fact that the application for interlocutory relief has been fully argued and that the issues and principles to be applied relating to the applicant son are identical to those relating to the applicant daughter, I consider it appropriate to grant interlocutory relief in favour of the applicant son as the issues in relation to him in respect of the grant of interlocutory relief will arise very shortly and perhaps in circumstances where he will not, by his next friend, have the same facility of access to legal advice and to the Court as he has had for the purposes of this application.

28                  I am therefore disposed to grant interlocutory relief in favour of the applicant children in the terms of pars 2 and 4 of their claim for interlocutory relief referred to in par [10] above.  It was not contended by the respondents that the Court did not have the power to grant interlocutory relief in favour of the applicant children.  I note that s 196(3) is not applicable because release from detention is not sought, and in any event that provision does not preclude the granting of interlocutory relief:  Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 (2003) 196 ALR 111. 

The application for interlocutory relief in favour of the parents

29                  I turn to the interlocutory relief claimed in relation to the applicant children’s parents.  On the material before me the parents, absent any consideration of the children, have no basis for contending that they have a right, power, claim or opportunity whether under the Act or otherwise to remain in Australia.  Their application for a protection visa has been refused.  Their application for a review of that decision has been dismissed.  No further review of that decision has been sought.  Their bridging visas expired on or about 15 October 2003.  Thereafter they became “unlawful non‑citizens”.  They do not hold a visa, and by virtue of the provisions of s 13 and s 14 of the Act, they are unlawful non‑citizens.  They are therefore liable, pursuant to s 189 of the Act, to be taken into immigration detention and liable, pursuant to s 198 of the Act, to be removed from Australia “as soon as reasonably practicable”. 

30                  I canvassed with counsel for the applicants and counsel for the respondents whether there was any particular visa, for which the parents might be eligible and which would entitle them to remain in Australia, for which they could apply.  I made this enquiry for the purpose of determining whether there might be, at the end of the day, an ultimate substantive issue which would warrant the grant of interlocutory relief to ensure the preservation of the opportunity for making an application for such a visa whilst in Australia.  By virtue of s 48 of the Act, a non‑citizen in the migration zone who does not hold a substantive visa and since last entering Australia was refused a visa may only apply (with some exceptions) for limited classes of visas.  Regulation 2.12 of the Migration Regulations 1994 (Cth) specifies the classes of visa for which the parents might apply for the purposes of s 48(1) of the Act.  On the material available to me, and from what I was told by counsel for the applicants and counsel for the respondents, none of the classes of visa prescribed by reg 2.12(1) are available to the parents.  By virtue of s 48A of the Act, a non‑citizen in the migration zone who has made an application for a protection visa cannot make a further application for a protection visa while in the migration zone.  However s 48B enables the Minister to determine that s 48A does not apply to prevent an application for a protection visa being made by a non‑citizen.  Unlike s 48A, s 48 has no provision similar to s 48B applying to it.  Section 48B is limited in its operation to s 48A.

31                  The parents are left therefore in the position that whilst they are in Australia they have no right, entitlement or opportunity under the Act to apply for a visa which would entitle them, upon issue, to remain in Australia as lawful non‑citizens.  The only exception is a Subclass 050 – Bridging (General) visa but, as I have noted earlier, the parents only qualify for that visa if the Minister is satisfied that the parents will make arrangements to leave Australia.

32                  I canvassed with counsel whether there might be other types of visas available for the parents and was informed that a possible relevant category was that of “carer”.  However a “carer” is defined in reg 1.15AA of the Migration Regulations in terms which preclude the parents from applying for a visa as a carer for their children.  Regulation 1.15AA(1)(b) requires the provision of a medical certificate in relation to a medical assessment carried out on behalf of Health Services Australia and signed by a medical adviser or a certificate issued by Health Services Australia which refers to a “medical condition” of the person who needs assistance.  Whatever be the connotation of the expression “medical condition”, the fact of infancy, of itself, would not qualify as a medical condition.  There is further difficulty for the parents with the visa category of “carer”.  The Australian relative in respect of whom it may be applied for must be an Australian citizen usually resident in Australia or an Australian permanent resident or an eligible New Zealand citizen.  The applicant children do not currently fall into any of these categories. 

33                  There is also provision for a “carer” visa under reg 116 of the Migration Regulations, but the grant of such a visa is conditioned upon the applicant being outside Australia.

34                  The respondents submitted that there was no basis for the grant of interlocutory relief in favour of the parents because ultimately there was no substantive relief available to the parents in their own right.  Just as a river cannot rise higher than its source, if there is no substantive permanent relief available in favour of the parents then there is no basis for the grant of interlocutory relief. 

35                  It is a well accepted principle that, notwithstanding the scope and breadth of s 23 of the Federal Court of Australia Act 1976 (Cth), it is not appropriate to grant interlocutory relief if there is no ultimate final relief available which the interlocutory relief can be seen to preserve:  Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620‑621; Peniche v Vanstone (1999) 96 FCR 38 at 41.  As was said by the majority of the High Court (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33:

“The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.  The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process …”  (footnotes omitted)

36                  I invited counsel for the applicants to assume, for the purposes of the argument, that the challenge in the High Court to the constitutional validity of s 10(2) of the Citizenship Act was successful with the result that the children were held to be Australian citizens and were not liable to be taken into immigration detention pursuant to s 189 of the Act or liable to be removed from Australia pursuant to s 198 of the Act.  I posed the question – what rights or opportunities would the children’s Australian citizenship give the parents in their own right in respect of their remaining in Australia?  Counsel for the applicants acknowledged that there would be no immediate effect on the status of the parents; they would remain unlawful non‑citizens.  He acknowledged that the options then open to the parents involved them leaving Australia.

37                  The inability of the parents to identify a substantive ground of relief in their favour which would warrant the grant of interlocutory relief has been highlighted in two recent decisions.  In Tupou v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 225 an application was made for an interlocutory injunction to restrain the removal of a mother who had overstayed a visitor’s visa and her son who was born in Australia.  The mother had applied unsuccessfully for a bridging visa and on review the Migration Review Tribunal affirmed the Department’s refusal to grant her a Bridging E (Class WE) visa.  She did not contend that the Migration Review Tribunal made any reviewable error in affirming the refusal of the visa.  Thus she was liable to removal from Australia pursuant to s 198 of the Act.  It was submitted on behalf of her son that he was not liable to be removed from Australia because he was an Australian citizen.  Reliance was placed on s 10(2) of the Citizenship Act and the fact that his alleged father was a permanent resident of Australia at the time of his birth.  Sackville J could not rule out the possibility that evidence might ultimately be presented that showed that the son was an Australian citizen, but he was not satisfied that the evidence was sufficiently cogent to justify restraining the son’s removal from Australia.  His Honour noted that, even if an order were to be made restraining his removal from Australia, such an order would not affect his mother’s position as an unlawful non‑citizen who would still be liable to removal from Australia. 

38                  A somewhat similar approach was taken by Chisholm J of the Family Court in Nevsky v Scott [2002] FamCA 860 where the mother of an Australian citizen was held in immigration detention and was faced with the possibility of removal from Australia.  Chisholm J was not prepared to interpret s 198(6) of the Act on the basis that, where the removal of a parent would be contrary to the best interests of a child who was an Australian citizen, such removal was not “reasonably practicable” within the meaning of that section.  His Honour noted that in Molisi v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 108 FCR 516 Drummond J held that the provisions of the Family Law Act 1975 (Cth) did not confer power on the Federal Court to restrain the performance of the mandatory duties imposed by s 189 and s 198(5) of the Act.  Chisholm J said at [40]:

“However, the suggestion, if it was made, that the Court could make the restraining order as an interim order but not as a final order, raises a problem of its own.  There is no suggestion that the Minister’s position is likely to change.  Thus, if there is no power to make the restraining order as a final order, the end result would appear inevitably to be that the mother will be removed from Australia.  If so, it would be difficult to see that the Court should make such an order on an interim basis, even if it had power to do so, since the interim order would be essentially futile.”

In short, Chisholm J was not prepared to accept that the welfare and interests of a child, embedded in the “paramountcy principle” applicable in family law matters, authorised orders “which would defeat the clear intention of specific provisions in the Migration Act which provide a detailed code dealing with, relevantly, removal from Australia” at [43].

39                  Counsel for the applicants sought to invoke the parens patriae jurisdiction of the Court, submitting that the welfare of the children was best served by them being looked after by their parents outside an immigration detention centre and with the parents remaining in Australia. 

40                  The nature and content of the parens patriae jurisdiction of the Crown and the Court was considered in Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218 (“Marion’s case”) at 258‑259 per Mason CJ, Dawson, Toohey and Gaudron JJ and at 279‑280 per Brennan J.  The parens patriae jurisdiction of the Court is relatively easy to identify but not so easy to apply in practice.  Commencing at least with Wellesley v Wellesley [1828] 4 ER 1078, courts have been reluctant to impose or identify the limits on the parens patriae jurisdiction: see also Marion’s case.  Whether or not there is such a jurisdiction committed to the Federal Court and how it should be exercised is at the present time very much an open question:  see Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 at [115].  In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, Gaudron J at 304 considered that children and their parents had a common law right arising from citizenship to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions by government and government agencies which directly affect the child’s welfare.  However, even assuming for the purpose of the argument that the parens patriae jurisdiction of the Court is available in such circumstances, it cannot result in the grant of a substantive visa to the parents under the Act.  There is no provision in the Act to which resort can be had for this purpose and I cannot see what ultimate relief, albeit by reference to the parens patriae jurisdiction of the Court, is available to the parents.  Whatever a Court may say as to what is in the best interests of the child, this cannot thereby translate into an order which has the direct result of challenging, or setting at naught, particular statutory provisions such as s 189 and s 198 of the Act where the substantive effect of those sections on the parents is not challenged as either being beyond power or inapplicable.  It is one matter to protect the interests of children who are citizens; it is another matter, in the course of that protection, to disregard a clearly expressed, unambiguous statutory provision. 

41                  The proposition that the Minister might be under a common law obligation to give consideration to the best interests of the children or that the Court should exercise its parens patriae jurisdiction, although initially attractive, leads nowhere.  It does not establish any criterion for the grant of any particular visa and cannot override the specific provisions of the Act, in particular, s 189 and s 198.  It is difficult to tell children of such tender years that, whilst they are entitled to remain at liberty in Australia, their parents may be taken away from them and placed in immigration detention and ultimately removed from Australia.  It is equally difficult to tell parents that, should they choose to have their children take advantage of the opportunity to remain at liberty in Australia, they will be separated from them.  The regret that a judge may feel in undertaking such a difficult task cannot, however, justify a free-ranging application of the parens patriae jurisdiction to create rights or entitlements in the parents which are without any statutory or common law basis in order to override the clear and unambiguous regime set out in the Act.  That issue is better resolved by the insertion of an appropriate visa classification in the Migration Regulations.

42                  The conclusion I have reached is that there is no prospect of any ultimate form of relief which might enure in favour of, or for the benefit of, the parents which would justify the grant of interlocutory relief restraining the Minister from causing or permitting the applicants’ parents to be taken into immigration detention pursuant to s 189 of the Act or causing or permitting their removal from Australia pursuant to s 198 of the Act.  This is an unfortunate result which will have the practical consequence of disadvantaging the children who will probably not be able to enjoy the benefits of the grant of the interlocutory relief to which they are entitled as a prelude to their challenge to s 10(2) of the Citizenship Act.

43                  The application for interlocutory injunctions in favour of the parents will therefore be dismissed.  Having regard to the fact that the bridging visas held by the parents were current at the time the application was filed but have now expired because I reserved my decision on the matter, I consider it appropriate that the parents should have a window of opportunity to consider these reasons and determine whether they wish to take advantage of the only visa which might avoid their being taken into immigration detention pursuant to s 189 of the Act, namely a 30 day Subclass 050 – Bridging (General) visa, a condition of which is that they undertake to leave Australia.  Accordingly I propose, subject to hearing from the parties, to order that the injunction granted in favour of the parents on 15 October 2003, consistently with the principles identified in Tait v R (1962) 108 CLR 620 at 624 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (supra), be extended in relation to the applicants’ parents to 5.00pm on 24 October 2003.

Associate:

Dated:              21 October 2003