FEDERAL COURT OF AUSTRALIA

A v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1343

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (given ex tempore and revised)

MORTIMER J:

1    This is an interlocutory application filed today for, relevantly, an order that the respondent do all things necessary, and take all necessary steps, to bring C, an infant, to Australia on or before 31 August 2018.

2    The applicant read, in support of this application, an affidavit from Michael Bradley affirmed on 29 August 2018, to which a great deal of material was exhibited, and I have been taken to quite a bit of that material during argument. No objection to that affidavit was taken by the Minister. The application was heard as a matter of urgency by me, by video-link from Sydney to Melbourne, tonight. I am grateful to counsel for the applicant and for the Minister, and the solicitor for the Minister, for their attendance and assistance. There is considerable urgency because of what the applicant contends will happen in China on or about 31 August 2018 to C, his infant son, and to his wife.

3    The context for seeking these unusual orders is as follows. The applicant is of Uyghur ethnicity and is an Australian citizen. He was born in China and has been in Australia since early 2009. He became an Australian citizen in June 2013. In his statutory declaration, which was before both the Administrative Appeals Tribunal and is before this Court, he recounts how he met his partner in October 2015. She is also a Uyghur. In July 2016, he travelled back to the part of China that he is from, to again be with his partner.

4    In his statutory declaration, he recounts a number of things that happened during that visit in relation to the way he was treated by some Chinese police. He also relates how he and his partner travelled to the United States and to Istanbul during 2016. He fills out a lot of what then happened in his statutory declaration, but I do not, at the moment, need to address those facts. The key fact relevant to this application is that on 31 August 2017 in the region of China that his partner is from, C was born. Although as I set out below one of the issues facing the applicant is to prove that C is in fact his son, for ease of reference and understanding, I will refer to C as the applicant’s son in these reasons. The applicant has not seen his son, but has kept in close contact with both his partner and his son, through a number of modes of communication.

5    On 2 August 2018, the applicant lodged a citizenship application with the Department of Immigration, Citizenship and Multicultural Affairs on behalf of his son. The catalyst for the applicant taking that step is set out in his statutory declaration. He deposes that on about 13 April 2018, he found out from his partner’s cousin that she had been taken by the Chinese police and detained in a re-education camp for Uyghurs. His son was still being breastfed at the time.

6    While she was detained, his partner’s parents looked after his son. His partner was released several days later, but the applicant deposes that she was told that once her son reached one year of age, namely, on 31 August 2018, she would be put back in detention. The applicant deposes that his partner was also told that when she was put back in detention:

It is likely that C will be put in a “holding camp” for children, which is like a prison, and then he will be given a new Han Chinese name and adopted out to a Han Chinese family.

7    The applicant then deposes that he has stayed in touch with his partner since that time, but through reduced methods of communication. Given the situation, the applicant was put in touch with Senator Nick McKim and told the Senator, he deposes, the story of his family. The applicant then deposes to a range of steps that he was advised to take to try and secure the safety of his son, and the timeline that he deposes to in his statutory declaration about this ranges from late April through to July 2018. He deposes that in June 2018, he was advised that he should lodge a citizenship application for his son. He deposes that he attempted to do that in June 2018, but the first application was rejected because it did not meet the formal requirements the Department imposed.

8    He then lodged a new application, the one that was lodged on 2 August 2018. I am not invited by the Minister to disbelieve any of the applicant’s account of these steps, and it is apparent, from what I have recited and from the greater detail that is in his statutory declaration, that he has made every effort possible to try and take the advice he has been given and secure an outcome for his son which he clearly hopes will avoid the fate he has been told is likely to befall his son in a few days. The Minister accepted, for the purpose of this application, that the material before the Court did disclose some risk to the applicant’s son. I consider that was an appropriate concession.

9    There is some country information in evidence before the Court which supports the description the applicant has given in his evidence about the situation for Uyghurs in China and, in particular, the circumstances likely to face the applicant’s son. I refer, in particular, to two pieces of evidence exhibited to Mr Bradley’s affidavit, one of which is headed “Dozens of Uyghur children in Xinjiang Village Camp detainees sent to live in orphanages”, and another entitled “Uyghur children’s identities changed”.

10    Each of these news reports corroborates both the account given by the applicant’s wife of the detention of Uyghurs and the practice of taking children who were left without parents to orphanages, on the reports in these documents, possibly to be held in terrible conditions and exposed to a risk of not seeing their parents again. The newspaper reports also describe authorities as “moving children to mainland China” as part of this apparent removal process.

11    After the applicant lodged the citizenship application for his son on 2 August 2018, the following sequence of events occurred. A decision was made on 22 August 2018 refusing the citizenship application. The reasons given by the delegate for that refusal related to the delegate not being satisfied about the applicant’s status as the father of C and also not being satisfied about the child’s identity. For those reasons, the delegate was not satisfied that the child was eligible for Australian citizenship under s 16(2) of the Australian Citizenship Act 2007 (Cth).

12    On the hearing of this application, Mr Burnside QC for the applicant pointed to the evidence that was before the delegate relating to DNA tests that had been carried out in Australia establishing, in his submission, to a high degree of probability, that C was the biological son of the applicant. Mr Burnside QC pointed to the way that had been dealt with in the delegate’s decision as likely to reveal error and likely to sustain a successful review in the Administrative Appeals Tribunal. While there may be some substance to that submission, it is not a matter on which I consider it is appropriate for me to base my decision on this application. The matter is, as I will shortly explain, currently still before the Administrative Appeals Tribunal.

13    On 27 August 2018, the applicant lodged an application for review of the citizenship decision with the AAT. The next day – that is, yesterday, 28 August 2018 – Mr Burnside QC appeared for the applicant at an interlocutory hearing before the AAT. Orders were sought on behalf of the applicant from the AAT pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) in a similar form to the orders that are sought from this Court: that is, orders that the Minister take all necessary steps to bring the applicant’s son to Australia from China. An order was also sought in similar terms in relation to the applicant’s partner, but that is not a matter that is pressed on this application.

14    Yesterday, the Administrative Appeals Tribunal refused that interlocutory application and gave reasons for that decision today, 29 August 2018. The Court has been provided with those reasons. Essentially, the AAT found that it did not have power to make the orders sought and that was the basis for the refusal of the application. The AAT took a particular view about its powers under s 41(2) of the AAT Act, to which I will return in a moment. Thus, the applicant comes to this Court on appeal under s 44 of the AAT Act, and the subject matter of this appeal is the AAT’s refusal to exercise a power under s 41(2) of the AAT Act.

15    On this interlocutory application, the applicant seeks orders from this Court under s 23 of the Federal Court of Australia Act 1975 (Cth) to preserve what he contends to be the subject matter of the dispute which – doing the best I can in the time I have had to summarise the careful and comprehensive submissions made by Mr Burnside – is the ability of the applicant’s son to take advantage of the grant of Australian citizenship if the AAT review is successful. Mr Burnside submits that there will be no realistic possibility of the applicant’s son being able to take advantage of citizenship if it is granted to him, unless the Court makes orders of the kind that are sought today.

16    On the usual principles, the Court must consider whether there is a serious question to be tried and where the balance of convenience lies.

17    On the matter of a serious question, bearing in mind that the subject matter of the appeal concerns the AAT’s construction of s 41(2) of the AAT Act, I am prepared to accept that there is an arguable case of error in relation to the construction given by the AAT to its powers.

18    Section 41(2) is in the following form:

The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

(emphasis added)

19    The way the Tribunal construed that power can be seen in paragraph [20] of its reasons, where the Tribunal stated:

I do not have the power to take positive steps beyond those of the power to stay (i.e. the power to postpone or suspend) and the powers to otherwise affect the operation or implementation of the decision under review.

20    The Tribunal was not prepared to accept the approach set out by Siopis J in Civil Aviation Safety Authority v Hotop [2005] FCA 1023; 145 FCR 232, where his Honour made it clear that the power in s 41(2) was of a kind that extended to orders to take positive steps which were necessary to preserve the effectiveness of the Tribunal’s review. In the short time I have had to consider the matter, I would respectfully agree with his Honour’s approach and, indeed, the submissions that Mr Burnside QC made about the breadth of that power being greater than the Tribunal articulated may well be well-founded. The Tribunal’s error, at least at one level, could simply be described as refusing to follow the decision of Siopis J, by which it was bound, but at a broader level, it could be described as giving too narrow a construction to s 41(2).

21    Although I am satisfied of the existence of an arguable error by the Tribunal, that does not mean I accept it is arguable s 41(2) extends to the kind of orders sought from the AAT in this case. Similar difficulties to the ones identified in these reasons about s 23 of the Federal Court Act would arise, and likely others, since the Tribunal does not exercise judicial power.

22    So, in my view, it is clear that there is a serious question to be tried about the Tribunal’s decision on the interlocutory application, even if the serious question may not extend to construing the power in the way the applicant contends.

23    I also accept, if the applicant were correct about the way he puts the balance of convenience (see [15] above), then the balance of convenience would also favour the making of some kind of orders, perhaps not quite of the kind sought by the applicant.

24    However, what the Court is asked to preserve is not the subject matter of the dispute, either on the s 44 appeal or before the AAT, and that is what I see as the key problem in the applicant’s application. The subject matter of the dispute in this Court is an appeal about the AAT’s power under s 41(2). However, if the orders sought by the applicant in this Court were made, that appeal would be rendered nugatory. The orders sought today are the very orders the applicant sought from the AAT and did not secure.

25    The appeal in this Court will have no utility once the interlocutory orders sought by the applicant today are made. I do not consider that s 23 of the Federal Court Act can be used in those circumstances. The orders sought by the applicant go well beyond the preservation of the subject matter of the dispute in this Court, pending the hearing of the s 44 appeal.

26    Secondly, the subject matter of the dispute before the AAT is whether or not the applicant’s son should be granted citizenship. It is not whether or not the applicant’s son should be able to enter and remain in Australia. As the Minister submitted, there may be a number of practical and legal reasons why the applicant’s son would not, even if granted citizenship, be able to leave China. Those matters are simply unknown and unknowable at the moment.

27    Therefore, on both these bases, even if one was to look beyond the subject matter of the dispute in this Court and to look at the subject matter of the dispute in the AAT, I do not consider that the Court’s power under s 23 extends to making the kind of orders sought by the applicant.

28    Further, even if I had been satisfied that there was power under s 23, the nature of the orders sought are such that I would not have been persuaded they were appropriate to be made.

29    In Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 at 336-337, Charles JA said:

Because a restraining injunction prevents the person affected from acting in a particular way, on pain of penalties for contempt of court, it is essential that the injunction be certain in its terms, so that the defendant may know precisely what may or may not be done pursuant to the injunction. Imprecision and ambiguity must, so far as possible, be avoided in the language used: Australian Consolidated Press Ltd. v. Morgan (1964) 112 CLR 483 at 503, 515, Redland Bricks Ltd v Morris [1970] AC 652 at 666 7, Meagher, Gummow and Lehane, Equity, Doctrines and Remedies, 3rd ed., (1992), pp. 619-20. Furthermore an interlocutory restraining injunction should be made no wider in ambit than is necessary: National Australia Bank Ltd. v. Bond Brewing Holdings Ltd. [1991] 1 V.R. 386 at 556-9.

30    Although Charles JA was dealing with a prohibitory injunction, the principle applies with greater force to a mandatory injunction: see generally Businessworld Computers Pty Ltd v Australian Communications Commission [1988] FCA 206; 82 ALR 499 at 502 (Gummow J) and the authorities there referred to. In Businessworld Computers at 502-3, Gummow J also describes why a mandatory injunction carries a higher risk of injustice to the party to whom it is directed, because it generally requires a party to take positive steps and is more intrusive.

31    The Court can have no certainty, and not even reasonable certainty, about what might be the steps that are able to be taken by the Minister, or which might be reasonable to order the Minister to take. There is little or no evidence about the whereabouts – the actual whereabouts – of the child and his mother.

32    There is no evidence about how Australian officials might find the child and his mother, or make arrangements for the child, who is not quite 12 months old, to be flown to Australia, bearing in mind on the applicant’s case, this all has to happen by Friday, 31 August 2018, being the date, on the applicant’s case, the child is at risk of being taken. I also take into account that there is no evidence it is safe for Australian officials to approach the mother or her family about the child and about these kinds of arrangements. The applicant’s whole situation is premised – and, as I said, with some justification in objective material – on the risks to Uyghurs from the Chinese State and from Chinese officials.

33    It seems to me it is not fanciful, in these circumstances, to apprehend that harm may come to people engaged in trying to remove this child from China, especially if part of the reason the application is sought is that Chinese officials have imprisoned his mother. However, the fundamental consideration on this aspect for the Court is that I am not satisfied it is appropriate for the Court to make an order that is not capable of compliance, nor one that is capable of being enforced, and it seems to me that an order of the kind sought by the applicant fails at both these hurdles. It is too uncertain, on the evidence, about what kind of steps might be taken and what steps might be characterised as reasonable, and, even if the Minister or the appropriate Minister were ordered to take reasonable steps, it is difficult to see how the Court could be satisfied that the order had been complied with.

34    A further factor that I have taken into account, and that I raised with counsel during argument, is that what is being asked of the Court is to compel the Commonwealth executive to take certain actions, essentially, in the diplomatic sphere. No authority was supplied where such orders have been sought, let alone made. Although that, in itself, may not be a reason to refuse to make the orders, it provides a reason for caution. For a Court to compel the Commonwealth executive to take steps essentially in the diplomatic sphere to remove a child from China who is not an Australian citizen, and who is not a resident of Australia, is, in my opinion, a step that is unlikely to be within power, even if the underlying cause of action in this Court were of a kind that might engage s 23 of the Federal Court Act, which I have found it is not.

35    I am grateful to counsel for the Minister for directing me to the case of Hicks v Ruddock [2007] FCA 299; 156 FCR 574, which I have taken into account, and also the references by the Minister’s counsel to United Kingdom authorities, concerning applications made to try and compel steps to be taken to bring individuals into the countries in which such orders were sought.. However, all of those cases, on the Minister’s counsel’s submission, concerned either citizens of the state against which the mandatory injunctive orders were sought, or permanent residents of that state, and here, the orders are sought against the Commonwealth executive, but in relation to taking steps in respect of a Chinese citizen, in China, and a very young baby at that. I also take into account that there is no evidence about the legal situation around C’s guardianship or his custody which, of course, are likely to be matters of some concern to the Chinese authorities.

36    For those reasons, the Court must refuse the application. I do not propose to make any order as to costs.

Associate:

Dated:    3 September 2018