Filimoehala v Minister for Immigration & Multicultural & Indigenous Affairs

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. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 14 November 2003 The Applicant appeared in person with the assistance of an interpreter:

Counsel for the Respondent: S Lloyd

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 7 November 2003

Date of Judgment: 14 November 2003