Xai v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 In this matter, there is an application on behalf of the three youngest children of Ms Shao Qiong ("the applicants") for their release from immigration detention. The applicants have been with their mother in immigration detention for two months. There is no application for release of the mother. They and their eldest sister were born in Australia. Their eldest sister is an Australian citizen, and is therefore not in detention. She is living with her maternal grandfather, who is also an Australian citizen. He has a relationship with each of the four children, having cared for each of them since their births. On the evidence before the Court, he is prepared to continue to care for them while their mother is in detention, and if it occurs, after their mother is deported from Australia. The applicants' maternal grandmother, three maternal uncles and one maternal aunt are all Australian citizens. The evidence is that the grandfather has sufficient resources to care for them as he has in the past. 2 The Minister has appeared on this application and indicated a concern in relation to the tender ages of two of the three applicants, Eda and Michael, who are respectively two years and three months old and six months old. The Minister submits that it may be appropriate to get some further evidence in relation to the best interests of the children, presumably from an expert or an outside source, before such young children are separated from their mother by their removal from immigration detention. 3 In the circumstances, giving proper weight to the wishes of the mother, the evidence of the grandfather, and the fact that it is important that the four siblings, including the eldest sister, should live together, I think the appropriate course is to make an order for the conditional release of the three children. I make this order on the conditions that have been set out in some short minutes of order that have been presented to me. I note, in making this decision to release the children from detention, that the Minister is prepared to undertake that the applicants will not be removed from Australia, pending the determination of these proceedings. As I understand the position, these proceedings are awaiting the outcome of a matter that has been heard by the High Court and is awaiting judgment. It is a most unfortunate circumstance that the mother remains in detention away from her children and that she has been forced to make such a difficult choice with respect to children of tender years. 4 Having regard to the evidence and the submissions of counsel and the representatives of both sides, I am satisfied that the appropriate orders are those set out in the short minutes of order below. I make the following orders: