FEDERAL COURT OF AUSTRALIA

Filimoehala v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1305

IMMIGRATION – interlocutory application to prevent removal pending special leave to appeal to the High Court – application for exercise of Ministerial discretion under s 417 of the Migration Act 1958 (Cth) – delay of four and a half years in processing applications for bridging visas – daughter obtained Australian citizenship – s 198(6) of Migration Act 1958 (Cth) – duty to remove imperative – where no valid application for any substantive visa – cogent grounds for exercise of Ministerial discretion – application dismissed

Australian Citizenship Act 1948 (Cth) s 10

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

NANO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 205 referred to

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 followed

M38/2002 v Minister for Immigration and Multicultural Affairs (2003) 199 ALR 290 followed

LATAKITUAKOLO FILIMOEHALA and OFA KILISITINA FILIMOEHALA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1695 OF 2003

TAMBERLIN J

SYDNEY

14 NOVEMBER 2003

THE COURT ORDERS THAT:

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                     The first applicant is a thirty-six year old Tongan male and the second applicant is his ten year old daughter.

2                     The first applicant has lived in Australia with his wife for approximately fifteen years.  They were married in Australia on 19 December 1992.

3                     The second applicant became an Australian citizen pursuant to s 10 of the Australian Citizenship Act 1948 (Cth), because she was born in Australia and has lived here for ten years.  She was born on 4 November 1993 and became an Australian citizen on 4 November 2003.  The applicant and his wife have a son born in Australia who is two years old.

4                     The Minister by his delegate made a decision in late October 2003 to remove the applicants from Australia under the power conferred by the Migration Act 1958 (Cth) (“the Act”).  This power cannot now, of course, be exercised in relation to the ten year old daughter, due to her attaining Australian citizenship in November.

5                     This application, therefore, concerns the position of the first applicant in relation to the proposed removal.  Although the first applicant brought before me a document entitled “Application for an Order of Review”, the substance of his claim is that the decision by the delegate of 27 October 2003 to remove him by 30 October 2003 was incorrect and wrong in law.  The reference to a decision of 27 October 2003 was to a document, which was sent to the first applicant on that date, in the following terms:

“Dear Mr and Ms FILIMOEHALA

I am writing to inform you that arrangements have been made for your removal from Australia to take effect on 30^th October 2003.  You will depart from Sydney at 20.00 hours

A notice for the cost of your detention and removal will also be provided to you.

Under Air Navigation legislation, it is necessary for your personal details and your deportation from Australia to be notified to the airline company which will transport you from Australia.

Please sign that you acknowledge receipt of this letter and return it by fax to this office.

Should you have any questions, you can contact Rodd Chignell of this office on (07) 3360 5048.

Yours Sincerely

Brett SMITH

27^th October 2003”

6                     The substance of the matter is that the first applicant now seeks an order directed to prevent the implementation of the decision to deport him.

7                     On 5 March 2003, the first applicant, his wife, their two year old son and nine year old daughter were taken into immigration detention where they all remained until November 2003.  The centre is situated at Villawood.  The ten year old daughter was released on 3 November 2003, having obtained Australian citizenship.  Her two year old brother was granted a bridging visa, and was also released from detention in early November.  I am informed that they are presently living with an aunt in Queensland, neither being under immediate threat of removal.  However, the father and mother remain in detention at Villawood, under threat of removal.  In the father’s case the threat is immediate.  On 1 September 2003, the father filed an application for special leave to appeal from a unanimous decision of the Full Federal Court to the High Court in respect of a refusal to grant a bridging visa.  That application for leave has not been heard.  The reasons for judgment of the Full Court were given on 26 August 2003 and are reported in NANO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 205.  The decision of Whitlam J at first instance is reported at [2003] FCA 578.

8                     On 7 November 2003, when the matter came before me, I was informed that a further request had been made on that date on behalf of the first applicant, his wife and son, seeking the exercise of the Minister’s power under s 417 of the Act to substitute for a decision of the Refugee Review Tribunal (“the Tribunal”) any other decision more favourable to the applicants whether or not the Tribunal had the power to make that other decision.  It is to be noted that, under that section, the Minister has a broad discretion in the public interest (ss(1)), and that the Minister does not have duty to consider whether to exercise the power, whether or not she is requested to do so (ss(7)).

9                     Counsel for the Minister had been previously unaware of the s 417 application of 7 November 2003, and was therefore unable to state what his instructions were in relation to that application.  It is important to note that the first applicant had made a previous application under this section to the Minister on 30 June 1997, which had been refused on 19 January 1998, when the Minister decided not to exercise the discretion.  The significance of this is that, as a consequence of the Migration Regulations 1994 (Cth)(“the Regulations”) relating to bridging visas in Schedule 2, sub-class 050.212(6), the applicant does not meet the requirements to qualify for a bridging visa under this provision, because this is not available where there has been a previous unsuccessful request to invoke the Minister’s power under s 417.

10                  The November 2003 request under s 417 directs attention to the new circumstance that the daughter has now become an Australian citizen.  It is said that for this reason, the applicants ought to be allowed to remain in Australia.  The request also refers to the long residence in Australia of the husband and wife, and to the circumstances of the two year old son.  It is principally the parents’ long residence in Australia, as well as the tender age of their children, their education in Australia, and the claimed exceptional circumstance that the daughter is an Australian citizen, that forms the basis of the application.

11                  The position of the family can be summarised as follows.  The father and mother are threatened with removal from the country in the near future.  Their ten year old daughter is entitled to remain in Australia, and the two year old son has a temporary bridging visa.  The consequence which could arise is that the father and the mother, who have lived here for fifteen years, will be removed from Australia, while their daughter and son remain in Australia with their Aunt in Queensland, without their parents.  This is, to say the least, a seriously unsatisfactory situation.

12                  I note from three decisions of the Migration Review Tribunal (“MRT”) of 31 October 2003, in evidence before me relating to separate decisions of a delegate to refuse the first applicant, his wife, and his daughter, bridging visas, that although the applications for bridging visas were made in October 1998, (when the daughter was four years old), there was no decision by the Department to refuse these visas until early March 2003.  This constitutes a delay of four and a half years.  The family was placed in detention between March and November, when the children were released.  No satisfactory explanation is advanced for the four and a half year delay, during which period the daughter was approaching her tenth birthday.  It was only after the expiration of that period that she became an Australian citizen.  No doubt the family had developed closer ties with Australia over this lengthy period.  The MRT decisions of 31 October 2003 state that the delegate stated on the decision record that there were no decisions on these applications through “oversight”.  This failure by the Department to deal with the applications during such a long period reflects no credit on the care with which applications for bridging visas are handled by the Department.

13                  Against this background I now turn to consider the application for a restraining order.

the application

14                  When the matter came before me, the first applicant had no representation.  The matter has a complex legal and factual background.  This can be seen in the reasons of the MRT given in the decisions of 31 October 2003, and I will not repeat that history here.  The first applicant did not speak English and had an interpreter.  Understandably, he was unable to articulate any precise legal argument to justify his application, except to point to the matters raised in the November request under s 417.

15                  The application, as earlier noted, is expressed to be for review of a decision by the Minister’s delegate of 27 October 2003, to remove the first applicant by 30 October 2003.  In a statement handed up by the first applicant, dated 7 November 2003, he states:

“…

The applicants ask the Court to make any restraining order against the Minister not to remove the applicants on the following grounds:

1. Applicant Latakituakoloi [the first applicant] is a party to High Court proceeding No 475 which is still outstanding.

2. Applicant OFA Kilisitina [the second applicant] is a citizen of Australia on her 10 years Birthday and she has been released on 3/11/03.

3. The applicant Latakituakolo sent a request to the Minister on todays date 7/11/03 under section 417 of the Migration Act.

4. Master PAEA Filimoekolo [the first applicant’s son] was released from detention on 5/11/03 by a decision of the Migration Review Tribunal given on 31/10/03 to grant him a bridging visa for his release.

5. Both OFA and PAEA are in the care of MRS SESAMANI PAEA of BRISBANE.

6. The applicant Latakituakolo is entitled for a bridging visa pending a decision on section 417 request to the Minister.

Signature: Latakituakolo Filimoehala

Date : 7/11/03”

16                  Neither the son nor the mother are parties to the present application, and as noted earlier, the son has a temporary bridging visa.  In relation to the daughter, there can be no threat to remove her from Australia as she is now an Australian citizen.

17                  Therefore, two matters fall for consideration. The first is that there is pending a special leave application before the High Court which has not been heard.  The second is that the first applicant sent the request to the Minister on 7 November 2003 under s 417 of the Act.

18                  In relation the first ground, the position is that the first applicant failed before a primary judge and before a Full Federal Court. The first applicant has not complied with the requests of the Court for the preparation of documents or the leave application.  It is submitted for the Minister that although the Court has jurisdiction to grant interlocutory relief, such relief should only be granted if exceptional circumstances can be shown, or where it is established that there is a substantial prospect that special leave to appeal will be granted.  In Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684-5, Brennan J held that the High Court had jurisdiction to grant a stay but this depended on whether a stay was necessary to preserve the subject matter of the litigation.  His Honour emphasised that the jurisdiction was an “extraordinary” one, and that exceptional circumstances must be shown.  At 685, his Honour said:

“In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of the Court’s discretion.  In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of the stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”  (Emphasis added)

19                  In the present case, it is submitted by counsel for the Minister that there is no substantial prospect that special leave to appeal will be granted.   He pointed to the fact that the special leave application, filed on 1 September 2003, did not spell out any substantive grounds except simply to state that the proceeding “involves” s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and s 51(xxvii) of the Commonwealth Constitution.  The application refers to the fact that the respondent had breached the Convention of the Rights of the Child which “involved” s 75 of the Constitution with original jurisdiction of the High Court in all matters arising under any treaty, and that the decision “involved” s 39B of the Judiciary Act.

20                  No submissions were advanced before me to indicate that the first applicant had any prospects of success in the special leave application.  As I have already observed, this was understandable.  However, the result is that no case has been advanced to satisfy the requirements referred to by Brennan J above. 

21                  Counsel for the Minister also referred to the duty incumbent on the Department under s 198(6) of the Act to remove, as soon as reasonably practicable, an unlawful non-citizen in specified circumstances.  Counsel submitted, and I accept, on the material before me that these circumstances have been made out.  This is an important consideration in a determination whether to issue a restraining order in the present circumstances.

22                  The evidence establishes that there is no record of any valid application for a substantive visa made by the applicants.

23                  I do not consider that the existence of the request under s 417 of the Act confers entitlement on the first applicant to seek a restraining order against the Minister in this case.  The Minister has a broad generalised discretion to act in the public interest and has no obligation to consider a request: see ss 417(1) and (6).  As noted earlier, under the Migration Regulations, because an earlier request under s 417 has been made by the first applicant, he has no entitlement to a bridging visa under the Regulations.  It is to be noted that the earlier application for exercise of discretion of the Minister’s power under s 417 was made six years ago, before the daughter had become an Australian citizen.  However, the fact that a significant new fact has arisen, and that the applicants have developed closer ties with Australia, does not prevent the operation of the requirements of the regulation referred to earlier, although is relevant to the exercise of discretion if the Minister saw fit to consider the matter.

24                  The question of the duty to remove under s 198(6) of the Act was considered by the Full Court in M38/2002 v Minister for Immigration and Multicultural Affairs (2003) 199 ALR 290 at 297-299 and 305-312.  That decision establishes that s 198(6) imposes an imperative duty to remove and that the decision as to whether it is reasonably practicable to remove an unlawful non-citizen is a matter for the relevant officer of the Department.  Relevant considerations may be matters such as the physical condition of the person being removed, whether there is a natural disaster in the country of destination or whether there is total chaos in the country of destination.  Section 417 was considered at 311 as allowing the Minister to grant a visa upon traumatic grounds.

25                  In the Application for Review, the first applicant refers to the Convention on the Rights of the Child.  Opened for signature 20 November 1989 UN. Doc A/44/49 art 3 (entered into force 2 December 1990); and the International Covenant on Civil and Political Rights.  Opened for signature 16 December 1996 999 UNTS 171 art 17.1 (entered into force 23 March 1976).  These provisions do not provide any basis for the grant of a restraining order in the present case.  They are raised in relation to the son and daughter, and as noted, counsel has indicated there is now no threat to remove the daughter from the jurisdiction due to her citizenship and the son has a bridging visa.

26                  Accordingly, the position is that the applicant has not made out any entitlement or basis on which to grant a restraining order against either of the applicants.

27                  Therefore this application must fail.  I dismiss the application.  Having regard to the history of the matter I will not make any order for costs against either of the applicants.

28                  I add that, in view of the fact that the parents have been in Australia for fifteen years, and given the fact of the citizenship of the daughter, and the four and a half year delay on the part of the Department in dealing with the 1998 bridging visa applications, it is appropriate that these matters be drawn to the attention of the Minister when considering the application of 7 November 2003 under s 417.  This is a very strong case for exercise of Ministerial discretion on extremely cogent humanitarian grounds.

Associate:

Dated:              14 November 2003