FEDERAL COURT OF AUSTRALIA

Akomeah v Commonwealth of Australia

[2003] FCA 1476

MARY AFRAMIA AKOMEAH An Infant by her next friend Robert Atta Akomeah v COMMONWEALTH OF AUSTRALIA and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1998 OF 2003

GYLES J

11 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

(1)               The second respondent be restrained from causing or permitting the applicant:

a.           to be removed from the Commonwealth of Australia or

b.          to be taken into Immigration detention

unless two days prior notice thereof has been given to the solicitors for the applicant.

(2)               The parties have liberty to apply on four hours notice to the Associate to Justice Gyles or, if unavailable, the duty Judge.

(3)               Costs be reserved.

(4)               The proceeding stand over to 2 March 2004 at 9.30 am.

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

REASONS FOR JUDGMENT

1                     The applicant, Mary Aframia Akomeah, was born on 30 May 2000 in New South Wales and has resided in Australia since that time with her father, mother and brother.  Her father, Robert Atta Akomeah, (who is her next friend) was born on 14 January 1960 in Ghana, Africa, and is a citizen of Ghana.  Her mother, Maria Antonia Akomeah, was born on 30 August 1962 and is a citizen of the Philippines.  Her brother, Robert Akomeah, was born on 10 December 1996 in the Philippines.  The applicant has no other relatives living in Australia.  The family hold bridging visas which are to expire on 12 December next.

2                     This proceeding was commenced on 24 November and seeks the following substantive permanent relief:

‘Declaration that the Applicant acquired Australian citizenship by birth in Australia on 30^th May 2000; alternatively

Declaration that the Applicant acquired Australian nationality as a “subject of the Queen” by birth in Australia on 30^th May 2000;

Declaration that Section 10(2) of the Australian Citizenship Act 1948 is not a valid law of the Commonwealth;

Declaration that Section 198 of the Migration Act 1958 is not capable of valid application to the Applicant;

Order by way of injunction restraining the Second Respondent from causing on [sic] permitting the Applicant to be removed from the Commonwealth of Australia;’

And the following substantive interlocutory relief:

‘An order by way of injunction restraining the Second Respondent from causing or permitting the Applicant 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;

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

3                     The High Court proceeding S441 of 2003 involves a claim to relief similar to that claimed in the present proceeding.  It has been fixed for hearing in early February 2004. 

4                     This is a motion for the interlocutory relief claimed in the application.

5                     It is submitted for the applicant that the case is indistinguishable from that considered by Goldberg J in Mashood v Commonwealth of Australia [2003] FCA 1147.  Goldberg J found that there was a serious question to be tried and that the balance of convenience lay in favour of the grant of interlocutory relief (at [26]).  There is no need for me to summarise the reasoning for that result.

6                     It is accepted for the respondent Minister that there is a serious question to be tried in this case, although it is said that the recent decision in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 has lessened the chances of success.  It is not accepted that the exercise of discretion based upon the balance of convenience is governed by the decision in Mashood.  It is pointed out that there is no consideration in that judgment of the consequences of granting an injunction in relation to a very young child, where the parents will be liable to be removed from Australia in the very near future.  It is submitted that there is no practical utility in an injunction in these circumstances.  There is no evidence as to how this applicant is to be cared for upon the departure of the parents.  It is submitted that an injunction in these circumstances cannot be said to be in the best interests of the child.  It is also submitted that the disadvantages referred to in Mashood and those referred to in the written submissions on behalf of the applicant, which I need not set out in detail, are more apparent than real.  It is submitted that there is no reason to believe that the applicant’s case cannot be conducted if she leaves the jurisdiction as well as if she were here.  It involves bare questions of law which stand or fall with the result of the High Court proceeding being conducted by a third party.  If she succeeds, she will then be entitled to all of the benefits of citizenship, including re-entry to Australia.  Even if she cannot continue the case, success by the applicant in S441 of 2003 will effectively operate in rem for the benefit of all those in a like position. 

7                     I appreciate the force of the reasoning of Goldberg J in Mashood and of the factors to which he referred favouring the grant of interlocutory relief but apparently he did not have to grapple with the arguments which have been put here, perhaps because the expiry of the bridging visas of the parents was not as imminent as it is here.  The arguments for the Minister are very troubling.  The effect of the injunction, if granted, would be to virtually compel the separation of a three year child from her father, mother and brother after their bridging visas expire, with no other relative living in Australia and with no evidence of any arrangements made or to be made for the care of the child in those circumstances.  The suggestion on behalf of the applicant that there are welfare agencies which will have the responsibility of looking after the applicant if her parents leave is unsupported by evidence and, in any event, is not a satisfactory answer to the problem.

8                     It is suggested on behalf of the applicant that there is no certainty as to when the parents might be removed and that the problem does not have to be faced until then.  There is substance to that submission.

9                     I order:

(1)        That the second respondent be restrained from causing or permitting the applicant:

a.         to be removed from the Commonwealth of Australia or

b.         to be taken into Immigration detention

unless two days prior notice thereof has been given to the solicitors for the applicant.

(2)        That the parties have liberty to apply on four hours notice to the Associate to Justice Gyles or, if unavailable, the duty Judge.

(3)        That costs be reserved.

(4)        That the proceeding stand over to 2 March 2004 at 9.30 am.

Associate:

Dated:              11 December 2003