MZUAZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is an infant two years old who brings the proceeding by his next friend, his father. The application he makes, pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss 475A, 477, 478 and 479 of the Migration Act 1958 (Cth) ("the Act"), is for writs of prohibition, certiorari and a declaration in relation to a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 October 2003 and published on 31 October 2003. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 29 May 2003 to refuse an application by the applicant for a Protection (Class XA) visa. 2 The applicant claims that the decision of the Tribunal is visited with error as it was made without jurisdiction and, as a consequence, the decision is not a privative clause decision to which s 474 of the Act applies. The applicant contends that the decision is affected by jurisdictional error in that either the Tribunal failed to take account of relevant material, asked the wrong question, identified the wrong issue, took into account irrelevant material, or failed to deal with the integers of the applicant's case. 3 The matter comes before the court this afternoon on a claim for interlocutory relief in the following terms: "Such order and direction as may be required to facilitate the hearing of the application and the applicant, his parents and his sister not be removed or placed in detention pending the hearing and determination of this application." The application was filed in the Federal Magistrates Court on 14 November 2003 with the application for interlocutory relief returnable this day. Pursuant to s 39 of the Federal Magistrates Act 1999 (Cth), the Federal Magistrates Court transferred the application to this Court. I had previously dealt with a matter involving the applicant and his sister which also related to relief sought in respect of the applicant's parents. I published my reasons for judgment in that matter on 21 October 2003 ([2003] FCA 1147). 4 In the earlier matter, I recited the history of the family, and it is not necessary to rehearse that history in any detail. Suffice it to say that the applicant and his sister were born in Australia. Their parents, who are citizens of Sri Lanka, arrived in Australia on visitors visas on 12 April 1995. There have been a number of applications made by the parents and the children for visas to stay in Australia, but no substantive visas, giving them the right to stay in Australia, have been granted. 5 In the earlier matter I granted an injunction restraining the Minister, pending the determination of that proceeding or further order, from causing, directing or permitting the applicant and his sister to be taken into detention or immigration detention, whether pursuant to s 189 of the Act or otherwise, or to be removed from Australia, whether pursuant to s 198 of the Act or otherwise. The basis for that order was that the applicant and his sister were claiming that s 10(2) of the Australian Citizenship Act 1948 (Cth) ("Citizenship Act") was not a valid law of the Commonwealth. 6 I found that there was a serious question to be tried in respect of that issue, particularly having regard to another matter presently before the High Court, Plaintiff S441 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCATrans 258. I was also asked to grant interlocutory relief restraining the Minister from taking the parents into immigration detention or removing them from Australia. 7 At that time, I reached the conclusion that there was no ultimate form of relief which might be obtained by the parents which would justify the grant of interlocutory relief restraining the Minister from causing or permitting them to be taken into immigration detention. At the time of that hearing the applicant's parents were unable to identify any substantive visa to which they might be entitled in the event that their children's claim as to the constitutional validity of s 10(2) of the Citizenship Act was successful. On that basis, the application for interlocutory injunctions in favour of the parents was dismissed. I reached that conclusion on the basis that there was no substantive ground of relief in the parents' favour which would be preserved by the grant of interlocutory relief. 8 I relied in particular on Jackson v Sterling Industries Ltd (1987) 162 CLR 612, Peniche v Vanstone (1999) 96 FCR 38 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1. 9 Since the last judgment, two further matters have occurred which are relevant to consider today. First, at that time there was a decision pending before the Tribunal, which was handed down on 31 October 2003. The applicant's visa was due to expire 28 days thereafter. At that time, the applicant's father's affidavit stated that he had received legal advice that the applicant's refugee application was unlikely to succeed and that if the decision was adverse, it was not his intention to seek on his behalf to appeal the decision. 10 The second matter which has occurred is that on 19 November 2003, the applicant's parents and sister filed an application seeking prerogative relief in the High Court of Australia in relation to the decision of the Tribunal made on 11 January 2002, which had affirmed the decision of the delegate not to grant the applicant's parents and his sister refugee status. An application for review of that decision before the Court was determined adversely to the applicant and his family on 17 March 2003 (VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205). 11 When the matter came on for hearing, counsel for the Minister announced that the Minister would not take any steps to remove the applicant, his sister or their parents from Australia until the hearing and determination of the matter before the High Court ("the Minister's statement). The Minister's statement was expressed to extend not only to the determination of the High Court proceeding, but any remittal of that proceeding before this Court, or transfer of the proceeding to the Federal Magistrates Court. The statement did not extend to any appeal. It was made clear by counsel for the Minister that any consideration of whether the position of the Minister should cover any appeal was a matter which would be the subject of further consideration. 12 In light of the Minister's statement, at the present time there is no urgency in relation to the grant of interlocutory relief seeking to restrain the Minister from causing or procuring or facilitating the removal of the applicant, his sister and their parents from Australia. In any event, a prohibition on the Minister from removing the applicant and his sister from Australia is covered by the injunction granted on 21 October 2003 in the earlier proceeding. The statement of the Minister extends that protection, not in the form of an injunction, but rather as an indication to the applicant and his parents of the Minister's position, for the duration of the proceeding in the High Court until its determination. 13 However, the applicant also seeks relief that would prevent the Minister from removing his parents, his sister and himself to detention pending the hearing and determination of the present application. The difficulty facing the applicant in terms of relief relating to the taking of his parents into immigration detention is that if the substantive application succeeds in the present proceeding, and the matter is remitted to the Tribunal for determination according to law, there is no substantive relief that the Tribunal may grant in favour of the parents. 14 Mr Krohn, who appeared for the applicant, submitted that at the time of the earlier hearing on 15 October 2003 there was no visa available to the parents, save for a bridging visa, which required that the Minister be satisfied that suitable arrangements either had been made or were being made by the parents and the children to depart from Australia. Mr Krohn submitted that a consequence of the filing of the High Court application was the opportunity for the parents to apply for a subclass 050 Bridging (General) visa. Such an application could be made first under item 050.212 (3A)(b)(i), in sch 2 to the Regulations, on the basis that the father had applied for judicial review and the judicial proceeding was not completed, and secondly, under item 050.212(2), that it was open to the Minister to be satisfied that acceptable arrangements had been made by the applicant's parents to depart from Australia when the proceeding had concluded. 15 At the present time, the applicant's parents have not applied for any bridging visa to be operative upon the expiration of their current visas today. Mr Krohn submitted that there was a serious question to be tried that the decision of the Tribunal was affected with jurisdictional error and that, accordingly, the balance of convenience was in favour of the grant of the interlocutory relief sought. That may be the position in relation to the applicant child, but it is of no assistance so far as relief is sought in relation to the parents. 16 It was submitted by Mr Krohn that the detention of the applicant's parents would have deleterious consequences for the applicant. He submitted that the parents' detention would render the conduct of the litigation and subsequent proceedings in a Tribunal difficult and that in the event that the parents were detained, they would be obliged to take their two children with them because they are unable to make alternative arrangements as to the children's care. Mr Krohn submitted that such a consequence would render useless the relief granted in the earlier proceeding. He also submitted that the court should order, under the parens patriae jurisdiction, that the parents not be detained in the interests of the applicant child. In the earlier proceeding I expressed the view that it is not open to me to make such an order on that simple basis. 17 The applicant's father, in his affidavit, stated that he and his family are aggrieved that although the Tribunal accepted that it was necessary to consider the circumstances of the entire family, and did in fact consider such circumstances, the Tribunal refused to grant the protection they sought. The applicant's father asked that the family be allowed to remain in Australia and not be transferred to immigration detention until the completion of the review. 18 As the application before me this afternoon is for interlocutory relief restraining the Minister from certain conduct, I am obliged to consider whether there is a serious question to be tried and to consider the balance of convenience. In the present case I do not reach the issue of a serious question to be tried in relation to the decision of the Tribunal, but even if I did, I would not be satisfied that there was a serious question to be tried on an issue in relation to which some ultimate relief subsists in favour of the parents. As I noted earlier, even if the applicant succeeds in having the decision of the Tribunal set aside, there is still no right in the parents to obtain substantive relief. 19 The consequence is that there is no basis, consistent with principle, upon which I can grant interlocutory relief restraining the Minister from taking the parents into immigration detention. I focus on the parents because the children are already protected from both removal to immigration detention and from Australia by my earlier order. The parents are only protected at the present time by the Minister's statement in open court that, pending the determination of the High Court proceeding in the manner to which I have referred, the Minister will not take any steps to remove the applicant's parents from Australia. 20 It is a regrettable situation that the consequence of the inability of the parents to obtain interlocutory relief restraining them being taken into immigration detention will have the result that the children may be taken into immigration detention, notwithstanding my order; that is, taken by the parents, not the Minister, because of an inability of the parents to have their children cared for outside an immigration detention facility. However, there is no substantive relief, as I have said, which will enure in favour of the parents, regardless of the outcome in the present proceeding. 21 It seems to me that the only alternative available to the parents, as outlined by counsel for the Minister, is for the parents to apply forthwith for a bridging visa to which I have earlier referred, under item 050.212. If such an application is made by the parents forthwith, it would no doubt be considered on the merits by the relevant departmental officer. I am not in a position where I can make any order in relation to the grant of such a visa. That is a matter relating to the administration of the Act and is for the departmental officers, or the Minister, to act consistently with those provisions. 22 The end result, in light of the Minister's statement and the order I made on 21 October, is that there is no need for any relief to be granted in relation to the applicant and his sister. Further, there is no serious question to be tried that there is any basis upon which relief should be granted in relation to the parents in this proceeding, and as such the application for interlocutory relief in the terms sought is refused. I would only wish to add that from a family point of view, this is an unfortunate result for the applicant and his family. But no doubt that is a matter that would be taken into account on any application for a further bridging visa by the applicant's parents. 23 The order of the court will be: