Filimoehala v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The first applicant is a thirty-six year old Tongan male and the second applicant is his ten year old daughter. 2 The first applicant has lived in Australia with his wife for approximately fifteen years. They were married in Australia on 19 December 1992. 3 The second applicant became an Australian citizen pursuant to s 10 of the Australian Citizenship Act 1948 (Cth), because she was born in Australia and has lived here for ten years. She was born on 4 November 1993 and became an Australian citizen on 4 November 2003. The applicant and his wife have a son born in Australia who is two years old. 4 The Minister by his delegate made a decision in late October 2003 to remove the applicants from Australia under the power conferred by the Migration Act 1958 (Cth) ("the Act"). This power cannot now, of course, be exercised in relation to the ten year old daughter, due to her attaining Australian citizenship in November. 5 This application, therefore, concerns the position of the first applicant in relation to the proposed removal. Although the first applicant brought before me a document entitled "Application for an Order of Review", the substance of his claim is that the decision by the delegate of 27 October 2003 to remove him by 30 October 2003 was incorrect and wrong in law. The reference to a decision of 27 October 2003 was to a document, which was sent to the first applicant on that date, in the following terms: "Dear Mr and Ms FILIMOEHALA I am writing to inform you that arrangements have been made for your removal from Australia to take effect on 30th October 2003. You will depart from Sydney at 20.00 hours A notice for the cost of your detention and removal will also be provided to you. Under Air Navigation legislation, it is necessary for your personal details and your deportation from Australia to be notified to the airline company which will transport you from Australia. Please sign that you acknowledge receipt of this letter and return it by fax to this office. Should you have any questions, you can contact Rodd Chignell of this office on (07) 3360 5048. Yours Sincerely Brett SMITH 27th October 2003" 6 The substance of the matter is that the first applicant now seeks an order directed to prevent the implementation of the decision to deport him. 7 On 5 March 2003, the first applicant, his wife, their two year old son and nine year old daughter were taken into immigration detention where they all remained until November 2003. The centre is situated at Villawood. The ten year old daughter was released on 3 November 2003, having obtained Australian citizenship. Her two year old brother was granted a bridging visa, and was also released from detention in early November. I am informed that they are presently living with an aunt in Queensland, neither being under immediate threat of removal. However, the father and mother remain in detention at Villawood, under threat of removal. In the father's case the threat is immediate. On 1 September 2003, the father filed an application for special leave to appeal from a unanimous decision of the Full Federal Court to the High Court in respect of a refusal to grant a bridging visa. That application for leave has not been heard. The reasons for judgment of the Full Court were given on 26 August 2003 and are reported in NANO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 205. The decision of Whitlam J at first instance is reported at [2003] FCA 578. 8 On 7 November 2003, when the matter came before me, I was informed that a further request had been made on that date on behalf of the first applicant, his wife and son, seeking the exercise of the Minister's power under s 417 of the Act to substitute for a decision of the Refugee Review Tribunal ("the Tribunal") any other decision more favourable to the applicants whether or not the Tribunal had the power to make that other decision. It is to be noted that, under that section, the Minister has a broad discretion in the public interest (ss(1)), and that the Minister does not have duty to consider whether to exercise the power, whether or not she is requested to do so (ss(7)). 9 Counsel for the Minister had been previously unaware of the s 417 application of 7 November 2003, and was therefore unable to state what his instructions were in relation to that application. It is important to note that the first applicant had made a previous application under this section to the Minister on 30 June 1997, which had been refused on 19 January 1998, when the Minister decided not to exercise the discretion. The significance of this is that, as a consequence of the Migration Regulations 1994 (Cth)("the Regulations") relating to bridging visas in Schedule 2, sub-class 050.212(6), the applicant does not meet the requirements to qualify for a bridging visa under this provision, because this is not available where there has been a previous unsuccessful request to invoke the Minister's power under s 417. 10 The November 2003 request under s 417 directs attention to the new circumstance that the daughter has now become an Australian citizen. It is said that for this reason, the applicants ought to be allowed to remain in Australia. The request also refers to the long residence in Australia of the husband and wife, and to the circumstances of the two year old son. It is principally the parents' long residence in Australia, as well as the tender age of their children, their education in Australia, and the claimed exceptional circumstance that the daughter is an Australian citizen, that forms the basis of the application. 11 The position of the family can be summarised as follows. The father and mother are threatened with removal from the country in the near future. Their ten year old daughter is entitled to remain in Australia, and the two year old son has a temporary bridging visa. The consequence which could arise is that the father and the mother, who have lived here for fifteen years, will be removed from Australia, while their daughter and son remain in Australia with their Aunt in Queensland, without their parents. This is, to say the least, a seriously unsatisfactory situation. 12 I note from three decisions of the Migration Review Tribunal ("MRT") of 31 October 2003, in evidence before me relating to separate decisions of a delegate to refuse the first applicant, his wife, and his daughter, bridging visas, that although the applications for bridging visas were made in October 1998, (when the daughter was four years old), there was no decision by the Department to refuse these visas until early March 2003. This constitutes a delay of four and a half years. The family was placed in detention between March and November, when the children were released. No satisfactory explanation is advanced for the four and a half year delay, during which period the daughter was approaching her tenth birthday. It was only after the expiration of that period that she became an Australian citizen. No doubt the family had developed closer ties with Australia over this lengthy period. The MRT decisions of 31 October 2003 state that the delegate stated on the decision record that there were no decisions on these applications through "oversight". This failure by the Department to deal with the applications during such a long period reflects no credit on the care with which applications for bridging visas are handled by the Department. 13 Against this background I now turn to consider the application for a restraining order.