FEDERAL COURT OF AUSTRALIA

Xai v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 421

ALICE XAI AND OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N441 OF 2004

TAMBERLIN J

SYDNEY

31 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N441 OF 2004

BETWEEN:	ALICE XAI AND OTHERS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	31 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to file in Court the affidavit of Yu Ying Su sworn 30 March 2004 and the affidavit of Shao Qiong Su sworn 26 March 2004.

2. Yu Ying Su be appointed as tutor for the applicants.

3. Until further order, the applicants be released from immigration detention on the following conditions, with liberty to apply on 12 hours’ notice:

(a) that the applicants reside with Yu Ying Su at 124 Mulgrave Road, Mulgrave.

(b) that Yu Ying Su notify the department of Immigration and Multicultural and Indigenous Affairs within 24 hours of any change of address and contact details for the applicants.

(c) that the applicants report once per week to the Department of Immigration and Multicultural and Indigenous Affairs, the details of such reporting to provided by the solicitors for the applicants, or as otherwise agreed between the parties.

4. The directions hearing presently fixed be vacated, and the matter transferred to Tamberlin J's docket.

5. The matter be listed for directions before Tamberlin J at 9:30 on 21 May 2004, with liberty to apply on 24 hours' notice should the parties wish to apply as a result of the decision of the High Court in Singh v Commonwealth of Australia and Anor.

THE COURT NOTES THAT:

1. The respondent has made an undertaking that the applicants will not be removed from Australia pending the determination of these proceedings.

2. The reporting referred to in order 2 above could be appropriately done by a weekly telephone report to the Department by the Grandfather, Yu Ying Su.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N441 OF 2004

BETWEEN:

ALICE XAI AND OTHERS

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	31 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter, there is an application on behalf of the three youngest children of Ms Shao Qiong (“the applicants”) for their release from immigration detention. The applicants have been with their mother in immigration detention for two months. There is no application for release of the mother. They and their eldest sister were born in Australia. Their eldest sister is an Australian citizen, and is therefore not in detention. She is living with her maternal grandfather, who is also an Australian citizen. He has a relationship with each of the four children, having cared for each of them since their births. On the evidence before the Court, he is prepared to continue to care for them while their mother is in detention, and if it occurs, after their mother is deported from Australia. The applicants’ maternal grandmother, three maternal uncles and one maternal aunt are all Australian citizens. The evidence is that the grandfather has sufficient resources to care for them as he has in the past.

2 The Minister has appeared on this application and indicated a concern in relation to the tender ages of two of the three applicants, Eda and Michael, who are respectively two years and three months old and six months old. The Minister submits that it may be appropriate to get some further evidence in relation to the best interests of the children, presumably from an expert or an outside source, before such young children are separated from their mother by their removal from immigration detention.

3 In the circumstances, giving proper weight to the wishes of the mother, the evidence of the grandfather, and the fact that it is important that the four siblings, including the eldest sister, should live together, I think the appropriate course is to make an order for the conditional release of the three children. I make this order on the conditions that have been set out in some short minutes of order that have been presented to me. I note, in making this decision to release the children from detention, that the Minister is prepared to undertake that the applicants will not be removed from Australia, pending the determination of these proceedings. As I understand the position, these proceedings are awaiting the outcome of a matter that has been heard by the High Court and is awaiting judgment. It is a most unfortunate circumstance that the mother remains in detention away from her children and that she has been forced to make such a difficult choice with respect to children of tender years.

4 Having regard to the evidence and the submissions of counsel and the representatives of both sides, I am satisfied that the appropriate orders are those set out in the short minutes of order below. I make the following orders: