NBLA v Commonwealth of Australia

REASONS FOR JUDGMENT 1 This is an urgent application for an injunction to restrain the removal of the applicant from Australia under s 198 of the Migration Act 1958 (Cth) ("the Act"). The evidence reveals that the applicant was born in Australia in 1998 and, as I understood the submissions put today, she has remained resident in Australia since she was born. By operation of s 10(2) of the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act"), she has not acquired Australian citizenship. 2 Ms Watson, solicitor for the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), submitted the Minister can and indeed should remove the applicant from Australia, she being an unlawful non-citizen. Without tracing through the definition of the expression "unlawful non-citizen", it ultimately depends on who is or is not an Australian citizen, which, at least prima facie, would be an issue to be determined by reference to the Citizenship Act. 3 In these proceedings, counsel for the applicant seeks to challenge the validity of the Citizenship Act, at least as it operates as the touchstone for the legislative scheme involving s 198 of the Act and s 10 of the Citizenship Act. Ms Watson has taken me to various passages in the judgment of the High Court in both Singh v Commonwealth of Australia (2004) 209 ALR 355; [2004] HCA 43 and Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143; [2003] HCA 72. There are observations made by the various judges of the High Court which would support the contention that the Citizenship Act has been lawfully enacted and would operate to enable the removal of the applicant as an unlawful non-citizen in the present circumstances. 4 However, counsel appearing for the applicant has cast sufficient doubt by reference to existing authority on this basal question about whether the Citizenship Act was validly enacted or at least could validly operate in the way the Minister relies upon in the present proceedings. 5 In the circumstances, the argument of the applicant, as I have understood them this afternoon, raises a point which cannot be said to be devoid of substance, but is nonetheless potentially a complex one. The Minister has not pointed to any real prejudice in restraining the removal of the applicant. That is not to say there will not be costs and inconvenience associated with doing so. If, however, the Minister has no lawful right to remove the applicant, the consequences of her removal this evening would be considerable. 6 In those circumstances I propose to make an order restraining the Minister from removing the applicant from Australia this evening as presently planned. I also propose to adjourn this matter to the docket of Emmett J, who, I am informed, has several other matters raising this particular point. No doubt his Honour can give further consideration to this issue and determine whether the order I make today should be varied or revoked. 7 I will order that the second respondent be restrained from removing the applicant from Australia until further order and that costs of the motion be reserved, and I will make orders tomorrow about the further conduct of the matter. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.