Doumit v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT ORDERS THAT:

1. The application be dismissed summarily. 2. The applicant's next friend, Lilliana Maria Suzrez Restrepo, pay the respondents' costs of the proceedings. 3. The time for the filing of any application for leave to appeal from these orders be extended to the date that is 7 days after a copy of the certified reasons for judgment in matter number NSD305 of 2005, given on 4 May 2005, have been made available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: VERAMU NADIKIDIKILATI CAKAUNITABUA an infant by his next friend Lucy Jane Turaga

SAVENACA ZACHEAUS TYCHICUS CAKAUNITABUA an infant by his next friend Lucy Jane Turaga

WAKUSITAN MALOTAVA DIKIDIKILATI CAKAUNITABUA an infant by his next friend Lucy Jane Turaga

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT:

1. The application be dismissed summarily. 2. The applicants' next friend, Lucy Jane Turaga, pay the respondents' costs of the proceedings. 3. The time for the filing of any application for leave to appeal from these orders be extended to the date that is 7 days after a copy of the certified reasons for judgment in matter number NSD305 of 2005, given on 4 May 2005, have been made available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: VICENTIUS BIMA YULIARDHYANTO an infant by his

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT:

1. The application be dismissed summarily. 2. The applicant's next friend, Lusiana Permata Dewi, pay the respondents' costs of the proceedings. 3. The time for the filing of any application for leave to appeal from these orders be extended to the date that is 7 days after a copy of the certified reasons for judgment in matter number NSD305 of 2005, given on 4 May 2005, have been made available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: JASON MATTHEW VEDY an infant by his next friend VENNY WINARTA

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT:

1. The application be dismissed summarily. 2. The applicant's next friend, Venny Winarta, pay the respondents' costs of the proceedings. 3. The time for the filing of any application for leave to appeal from these orders be extended to the date that is 7 days after a copy of the certified reasons for judgment in matter number NSD305 of 2005, given on 4 May 2005, have been made available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: JI HEE HWANG an infant by his next friend YOUNG HEE HAN

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT:

1. The application be dismissed summarily. 2. The applicant's next friend, Young Hee Han, pay the respondent's costs of the proceedings. 3. The time for the filing of any application for leave to appeal from these orders be extended to the date that is 7 days after a copy of the certified reasons for judgment in matter number NSD305 of 2005, given on 4 May 2005, have been made available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: MARY ISSA an infant by her next friend SANIOURA ISSA (AKA ELIAS)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT:

1. The application be dismissed summarily. 2. The applicant's next friend, Sanioura Issa (aka Elias), pay the respondent's costs of the proceedings. 3. The time for the filing of any application for leave to appeal from thee orders be extended to the date that is 7 days after a copy of the certified reasons for judgment in matter number NSD305 of 2005, given on 4 May 2005, have been made available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NSD305 OF 2005 BETWEEN: GEORGE DOUMIT an infant by his next friend ZAKHIA DOUMIT

CHARBEL DOUMIT an infant by his next friend ZAKHIA DOUMIT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD306 OF 2005 BETWEEN: MARIA DOUMIT an infant by her next friend

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD307 OF 2005 BETWEEN: MEMA YACOUB an infant by his next friend

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 339 OF 2005 BETWEEN: JOHNATHAN LEON SUAREZ an infant by his next friend

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 364 of 2005 BETWEEN: VICENTIUS BIMA YULIARDHYANTO an infant by his

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 350 OF 2005 BETWEEN: VERAMU NADIKIDIKILATI CAKAUNITABUA an infant by his next friend LUCY JANE TURAGA

SAVENACA ZACHEAUS TYCHICUS CAKAUNITABUA an infant by his next friend LUCY JANE TURAGA

WAKUSITAN MALOTAVA DIKIDIKILATI CAKAUNITABUA an infant by his next friend LUCY JANE TURAGA

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 408 OF 2005 BETWEEN: JASON MATTHEW VEDY an infant by his next friend

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 446 OF 2005 BETWEEN: JI HEE HWANG an infant by his next friend

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 542 OF 2005 BETWEEN: MARY ISSA an infant by her next friend SANIOURA ISSA (AKA ELIAS)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT 1 I have before me applications for summary dismissal of nine separate proceedings, being NSD305/2005, NSD306/2005, NSD307/2005, NSD339/2005, NSD364/2005, NSD350/2005, NSD408/2005, NSD446/2005 and NSD542/2005. In each proceeding, relief is claimed under the Judiciary Act 1903 (Cth) on behalf of infant children. Identical legal issues arise in each proceeding and it has been agreed between the parties that the outcome of any one of the applications for summary judgment will govern the outcome in all of them. The parties have indicated that it would be convenient to deal with proceeding NSD305/2005 on the basis that the facts alleged on behalf of the infant applicants in that that proceeding are accepted by the respondents for the purposes of the summary dismissal application. 2 Proceeding NSD305/2005 was commenced on behalf of the applicants by their next friend, Zakhia Doumit, who is their father. The applicants were both born in Australia, one on 7 January 2000, and the other on 29 August 2002. They have each remained continuously in Australia since birth. The respondents to the proceeding are the Commonwealth of Australia and the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). 3 In essence, the applicants seek to restrain the Minister from removing them from Australia pursuant to s 198 of the Migration Act 1958 (Cth) ('the Migration Act'). However, the declarations sought in the amended application go beyond that relief, and are in the following terms: 1. Declaration that the Australian Citizenship Act 1948 (Cth) ('the Citizenship Act'), save as to the naturalisation of aliens or the revocation of a person's Australian nationality where the person has been an alien, is ultra vires the Constitution. 2. Declaration that there exists no power in the Constitution that would enable the Commonwealth Parliament to define the term 'citizen'. 3. Declaration that, in consequence, s 198 of the Migration Act is not capable of valid application to the applicants. 4. An order by way of injunction that the Minister be restrained from removing the applicants, or causing the applicants to be removed, from Australia.

4 Both parents of the applicants ('the Parents') were born in Lebanon and have at all material times been citizens of Lebanon. The Parents entered Australia on 19 September 1999 and applied for protections visas on 28 March 2000. On 12 May 2000, a delegate of the Minister refused to grant protection visas and, on 7 June 2000, the Parents applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 28 March 2002, the Tribunal affirmed the decision not to grant protection visas. 5 The applicants presently have no substantive visa that would constitute permission to remain in Australia. However, they claim that the provisions of the Migration Act that would require their removal from Australia are invalid. It is necessary first to outline the relevant scheme of the Migration Act. 6 Section 189(1) of the Migration Act provides that, if an officer knows, or reasonably suspects, that a person in Australia is an unlawful non-citizen, the officer must detain the person. Under s 196(1), an unlawful non-citizen detained under s 189 must be kept in migration detention until he or she is removed from Australia, deported or granted a visa. 7 Sections 198(5) and 198(6) of the Migration Act relevantly provide for circumstances when an officer must, as soon as practicable, remove an unlawful non-citizen from Australia if the non-citizen is a detainee. It is common ground that the applicants are unlawful non-citizens within the meaning of the Act, and that if s 198 is a valid exercise of the legislative power of the Commonwealth, s 198(5) or s 198(6) would require the removal of the applicants from Australia as soon as reasonably practicable. The applicants contend, however, that s 198 is invalid as beyond the legislative power of the Commonwealth. 8 Under s 14 of the Migration Act, a non-citizen in Australia, who is not a lawful non-citizen is an unlawful non-citizen. Under s 13, a non-citizen in Australia, who holds a valid visa, is a lawful non-citizen. The term 'non-citizen' is defined in s 5 of the Migration Act as a person who is not an Australian citizen. The term 'Australian citizen' is not defined in the Migration Act. However, the term is used extensively in the Citizenship Act 1948 (Cth) ('the Citizenship Act'). 9 The Minister contends, and I do not understand the applicants to contend to the contrary, that the term, 'Australian citizen', when used in the definition of non-citizen in the Migration Act, must be taken to refer to a person who is an Australian citizen as explained in the Citizenship Act. 10 Sections 10(1), 10(2), 10(3), 10A, 10B(1), 10B(4), 10C(1), 11(4), 15(1) and 15(7) of the Citizenship Act lay down circumstances in which a person is, or becomes, an Australian citizen. Sections 18(4), 19, 21(1), 23(1) and 23(2) lay down circumstances in which a person will cease to be an Australian citizen. Sections 23AA(1), 23AA(2), 23AB(1), 23AB(3), 23A(2) and 23B(2) lay down circumstances in which a person, who has previously ceased to be an Australian citizen, may again become an Australian citizen. 11 On one view, the Citizenship Act does no more than identify classes of persons who, for various purposes, may be referred to as Australian citizens. It was not suggested that the Citizenship Act confers upon any person any particular right, by reason of that person's being, or becoming, an Australian citizen as that term is used in the Citizenship Act; nor was it suggested that the Citizenship Act of itself imposes any disability on any person who is not an Australian citizen. In one sense, the Citizenship Act is no more than a dictionary. While it provides substantive procedures to enable what might be regarded as the naturalization of aliens, of itself it confers no rights on a person who is an Australian citizen and imposes no disability on a person who is not an Australian citizen. 12 There are, of course, many instances of the exercise of Commonwealth legislative power in which rights are conferred upon persons who are Australian citizens, or disabilities are imposed upon persons who are not Australian citizens. Such enactments operate on the assumption that whether or not a person is an Australian citizen is determined by the Citizenship Act. The validity of those enactments is not in question in this proceeding. The only enactments whose validity is presently in question are the provisions of the Migration Act that call for the detention and removal of the applicants. 13 The Migration Act, of course, is not concerned with citizenship. It is concerned with the circumstances in which persons may enter and remain in Australia, or may be removed or deported from Australia. Various criteria are set out in the Act in considerable detail for determining who may enter and remain in Australia, and who must be detained and removed or deported. However, the essential touchstone for determining whether a person may be detained, or may be removed or deported, is whether or not the person is an Australian citizen. 14 The long title of the Migration Act is: 'An Act Relating To The Entry Into And Presence In Australia Of Aliens And Departure Or Deportation From Australia Of Aliens And Certain Other Persons'. Thus, s 51(xix) of the Constitution, the power to make laws with respect to naturalization and aliens, is relied upon in order to support the validity of the Migration Act. 15 It is accepted, on behalf of the applicants, that the applicants are aliens within the meaning of that term when used in the Constitution. It is also accepted, on behalf of the applicants, that the Commonwealth Parliament has power to legislate with respect to the detention or the removal or deportation of aliens from Australia. However, counsel for the applicants contends that, because s 198 is founded upon a concept of Australian citizenship and the Commonwealth Parliament has no power to legislate with respect to citizenship as such, there is a fatal flaw in the Migration Act, insofar as it rests upon the power conferred by s 51(xix) of the Constitution. Counsel for the applicants referred to the Convention debates that led to the enactment of the Constitution, where observations were made that indicate a positive decision was made not to deal with the concept of citizenship in the Constitution. 16 While the Parliament has express power, under s 51(xix) of the Constitution, to make laws with respect to naturalization and aliens, no express power is conferred to make laws with respect to citizenship. If, under the Migration Act, the criterion for the detention or removal of a person was that the person have the status of an alien within the meaning of s51(xix) of the Constitution, as opposed to the status non-citizen, the applicants accept that there would be no question as to the validity of those provisions of the Migration Act. 17 It is true enough that the concept of 'Australian citizen' does not coincide precisely with the concept of non-alien. It may be that there are persons who are aliens, who would be Australian citizens within the meaning of the Citizenship Act. However, counsel for the applicants was unable to point to any class of persons who are not aliens and who are not Australian citizens. In endeavouring to explore the possibility that there might be such a class, reference was made to Koroitamana v The Commonwealth [2005] FCAFC 61 at [6], and Shaw v The Minister for Immigration and Multicultural Affairs [2003] HCA 72 at [27]. 18 As a matter of logic, s 198 would only authorise the detention and removal of a person who is an alien. It would not authorise the removal of a person who is not an alien. It may be that there are some persons who could not be removed pursuant to s 198, because, while they are aliens, they are also Australian citizens. That, however, is not to the point. 19 I have been unable to discern any circumstance where s 198, operating as it does only in relation to persons who are not Australian citizens, would authorise the removal of a person who is not an alien. In those circumstances, whatever effect the Citizenship Act may have in other contexts, its effect in relation to the Migration Act is not to authorise the removal of anybody who is not an alien. The purpose of the Migration Act is to deal, amongst other things, with the detention and removal from Australia of aliens. It is within the legislative competence of the Parliament, conferred by s 51(xix) of the Constitution, to provide for the detention and removal of persons who are aliens. 20 I have heard all of the argument that would be advanced if the matter were being heard on a final basis. I am firmly of the view that s 198, insofar as it operates in relation to persons who are not Australian citizens within the meaning of the Citizenship Act, is a valid exercise of the legislative power of the Commonwealth. On that premise, if the matter were being heard on a final basis, I would conclude that the application should be dismissed. However, the proceeding before me is an application for summary dismissal of the proceeding. 21 Jurisdiction to terminate a proceeding summarily ought to be employed sparingly, and ought not to be used except in a clear case, where the Court is satisfied that it has the requisite material and the necessary assistance from the parties, to reach a definite and certain conclusion. A case must be very clear to justify summary intervention of the Court to prevent a party from submitting his case for determination in the ordinary way. On the other hand, the exercise of the jurisdiction should not be reserved for those cases where argument is unnecessary to evoke the futility of a claim. Argument, sometimes of an extensive kind, may be necessary to demonstrate that the case sought to be made is so clearly untenable that it cannot possibly succeed. 22 Summary jurisdiction would normally be exercised in order to save time and costs in the exploration of disputed factual matters that, even if they were resolved in favour of an applicant, would not demonstrate a good cause of action. Because there is no dispute as to the facts, that is not this case. The question of whether or not I should dismiss the matter summarily appears to have tactical forensic consequences, in that it may be open to the Minister to argue that leave is necessary for any appeal. Whether or not leave would be required and, if so, whether it should be granted, is not a matter before me at present. The only question is whether I should dismiss the proceeding summarily. 23 I have reached the firm conclusion that the applicants' case is without substance. I have reached that conclusion with the degree of certainty that would be appropriate for the order of summary dismissal. I therefore propose to accede to the Minister's application to dismiss the proceeding summarily, pursuant to Order 20 Rule 2(1)(a), on the ground that no reasonable cause of action is disclosed. It follows from what I have said that the other eight proceedings presently before me should also be dismissed summarily on the same ground. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Respondent: Australian Government Solicitor