29 November 2000 Application lodged by Mrs Molisi for review of what is described as "the decision" of Mr Price that the applicant is barred from applying for any visa other than the bridging visas granted by Mr Price that day.
29 November 2000 Applications by Mr and Mrs Molisi and the two youngest children for bridging visa E - subclass 050 made and granted, such visas to remain in force until twenty-eight days after the outcome of the present proceedings.
6 Section 189 the Migration Act imposes a mandatory duty on an officer who knows that a person in the migration zone is an unlawful non-citizen to detain that person. Section 194 obliges an officer who detains such a person to ensure that the person is made aware of the provisions of ss 195 and 196. Section 195 entitles such a detainee to apply for a visa within two working days after the day on which the person receives such advice from the officer. Section 195(2) provides that a detainee who does not apply for a visa within that time may not apply for a visa, other than a bridging visa or a protection visa, after that time. Section 198(5) casts a mandatory duty on an officer to remove "as soon as reasonably practicable" such an unlawful non-citizen detainee entitled to but who has not applied for a visa in accordance with s 195. It is apparent from the chronology that officers of the Department, long before the dates on which these two children became Australian citizens, knew of their presence and the presence of their mother and father and other two siblings in Australia and also knew that all were unlawful non-citizens during various periods when they had no visa applications under consideration. In the period between 22 May 1992 and 6 April 1993, the Molisis had no application of any kind before the Department for its consideration. The same was the position between 25 November 1997 and 17 March 1998 and after 16 December 1998, until 23 November 2000. During various other periods, each substantial in extent (eg, in the twenty-five month period it took the Department to reject Mr Molisi's application of 6 April 1993), the Molisis appear to have had no lawful entitlement to stay in Australia, though they had various applications before the Department for consideration. Provisions similar to ss 189 and 198 of Division 7 and Division 8 of Part 2 the Migration Act 1958 (Cth) have been in force since 1992, ie, since well prior to Sione, and then Joshua, acquiring Australian citizenship on the tenth anniversary of each's birth in Australia. None of those provisions were invoked against Mr and Mrs Molisi and any of their four children before Sione and Joshua became Australian citizens even though, for a substantial period of time before that event, Departmental officers had knowledge of their presence in Australia as unlawful non-citizens.
7 The Minister acknowledges that Sione (now twelve years of age) and Joshua (now ten years of age), as Australian citizens, cannot be removed from Australia. The Minister's position, however, is that the provisions of the Act to which I have referred compel him to remove Mr and Mrs Molisi and the two younger children from Australia whether or not this involves breaking up the family: he has no discretion under the Migration Act to do anything else.
8 It is necessary now to turn to Mrs Molisi's application for judicial review of what is said to be Mr Price's decision of 23 November 2000. The Minister has filed a notice of objection to the competency of the application on the ground that it "does not disclose a decision which is reviewable pursuant to s 476 of the Migration Act 1958."
9 It is only if Mr Price, on 23 November last, made a determination within s 475(1)(c) the Migration Act - "other decisions made under this Act or the regulations, relating to visas" - that there will be a judicially reviewable decision. Otherwise the application for review will, as the Minister contends, be incompetent.
10 For a determination to amount to such a "decision", it must have the quality of being final or operative or determinative, at least in a practical sense, of an issue falling for consideration: it must be a substantive determination. Cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337. The only decision of that character relating to visas which Mr Price made on 23 November was to issue the bridging visas. In his other dealings with Mr and Mrs Molisi on that day, he did not go beyond expressing his opinion as to the non-availability of any other form of visa. It is clear that he did not purport to refuse applications then made by Mr or Mrs Molisi for any other visa. There is nothing that I can see in what Mr Price did leading up to issuing the bridging visas that could be said to amount to such a "decision": see Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 341.
11 Mrs Molisi's pro bono legal representatives having been granted leave to withdraw by order of the District Registrar made prior to yesterday's hearing, I gave leave to Mrs Molisi to be represented in these proceedings by a friend, Mr Fonua. He offered no submissions throwing any doubt on the absence of any judicially reviewable decision. The objection to competency must therefore be upheld and the application dismissed.
12 I should mention that Mr Fonua pointed out that Mrs Molisi, on 7 December 2000, had given "notice of constitutional matters under s 78B the Judiciary Act 1903 (Cth)". No argument was put forward in support of any of the five assertions that the Commonwealth Parliament acted unconstitutionally in enacting the Migration Act and the Migration Regulations 1994 (Cth) because of the various impacts they are said to have on Australian citizen children in the position of Sione and Joshua.
13 That the Migration Act may authorise the making of regulations having an unjust effect in their practical application to individuals, including the effect of uprooting Australian citizen children from their country of birth and citizenship, does not, I think, provide any ground for doubting the constitutional power of the Parliament to pass such legislation. Cooper J rejected the same kind of arguments asserted in the notice before me in Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 at pars [45] to [49]. His decision on this point was upheld by the Full Court: see Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197 at par [16].
14 No question of constitutionality, in my opinion, can arise even if it were established that regulations have been made under the Migration Act providing for the differential treatment of some entrants on the basis of their nationality. Quite apart from the untenable notion that the Racial Discrimination Act 1975 (Cth) and a Ministerial declaration under s 47 the Human Rights and Equal Opportunity Commission Act 1986 (Cth) each fetters the legislative power of the Commonwealth Parliament to enact statutes inconsistent with the Racial Discrimination Act and a declared international instrument, the foundation for the assertion that the Racial Discrimination Act prohibits discrimination on the basis of nationality is unfounded: see Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 471 - 472. In any event, compliance by an official with a statutory duty imposed, eg, by the Migration Act cannot involve any breach of the Racial Discrimination Act: see Secretary, Department of Veterans Affairs v P (1998) 79 FCR 594 at 597 - 598.
15 It remains to consider the application for orders under the Family Law Act 1975 (Cth). This was based upon the undisputed evidence of Mr Molisi that the welfare of the two Australian citizen children, Sione and Joshua, will be harmed if, as is likely, their parents have no practical option but to take them with them when they and the two younger children are compelled to leave Australia. That evidence, not disputed, is that Sione and Joshua will be uprooted from their country of birth where they have lived the whole of their lives and will have to go to one of the outer islands in the Tongan group from which Mr Molisi comes. They will have language difficulties, not being fluent in Tongan. Educational and health facilities there are greatly inferior to those available to Sione and Joshua here.
16 However, counsel who appeared for the children on this application stated that he could identify no basis upon which he could contend that this Court could make orders of the kind sought including injunctive orders under s 68B the Family Law Act (or under s 114(3), the provision relied on in the application).
17 Counsel for the Minister has prepared written submissions to the effect that this Court has no jurisdiction under any source of power, including s 39B(1A) the Judiciary Act 1903 (Cth), to deal with applications for orders under the Family Law Act. In Hooper v Kirella Pty Ltd (1999) 167 ALR 358; [1999] FCA 1584 at par [71], the Full Court expressly left open the question whether this Court has jurisdiction under s 39B(1A) to make orders in respect of family law matters and to make orders under the provisions of the Family Law Act. It is, however, unnecessary in the present case to express any conclusion on those issues because counsel has also submitted, in a detailed and careful argument that, even if this Court has jurisdiction to make parenting orders and to grant an injunction under a provision such as s 68B the Family Law Act, those provisions, properly construed, do not confer power on any court to defeat the rights or enlarge the obligations of persons who are neither parties to the marriage nor in some way connected with the personal relationship out of which the matrimonial litigation has arisen: it is said that the Minister is therefore not a person in respect of whom the power to issue an injunction under s 68B extends.
18 In Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337, Gibbs J (Stephen, Aicken and Wilson JJ agreeing) said (at p 349) of the power conferred on the Federal Court by s 114(3) to grant injunctions that, though the orders in question, which were in the form of mandatory injunctions against strangers to the marriage relationship, "fall within the literal words of s 80 and s 114(3) and that they were made in aid of the jurisdiction of the Family Court", they could not be sustained for reasons set out at 354: