Lyones v Farrell
[2008] FMCA 1657
•12 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LYONES & ORS v FARRELL | [2008] FMCA 1657 |
| MIGRATION – Application to transfer matter to Migration Review Tribunal or Minister for Immigration & Citizenship – no reviewable decision – no jurisdiction. |
| CONSTITUTIONAL LAW – Naturalisation and aliens – eligibility for election to Commonwealth Parliament – British subject an alien. |
| PRACTICE AND PROCEDURE – Application for adjournment to seek legal representation refused – no jurisdiction in any event. |
| Australia Act 1986 (Cth) Commonwealth Electoral Act 1918 (Cth), s.163 Constitution, ss.34, 51(xix) Federal Magistrates Act 1999 (Cth), s.42 Migration Act 1958 (Cth), ss.5, 48, 476 Migration Regulations 1994 (Cth), Sch. 8, condition 8512 |
| Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 |
| Moens G.A and Trone J, Lumb & Moens’ The Constitution of the Commonwealth of Australia Annotated, (7th Edn) (Chatswood: LexisNexis Butterworths Australia, 2007). |
| First Applicant: | JANE ESTELLE LYONES |
| Second Applicant: | SCOTT ANTHONY LYONES |
| Third Applicant: | DEAN EDWARD LYONES |
| Fourth Applicant: | DANIELLE JANE LYONES |
| Fifth Applicant: | BRADLEY ANDREW LYONES |
| Sixth Applicant: | NICOLA ROSEMARY LYONES |
| Respondent: | PAUL FARRELL AS DELEGATE OF THE MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | PEG 192 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 11 December 2008 |
| Date of Last Submission: | 11 December 2008 |
| Delivered at: | Perth |
| Delivered on: | 12 December 2008 |
REPRESENTATION
| Applicants: | First applicant in person and on behalf of second to sixth applicants |
| McKenzie Friend | Mr. J. Dean (by leave of the Court) |
| Counsel for the Respondent: | Mr P. Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the respondent be amended to “Paul Farrell as delegate of the Minister for Immigration & Citizenship”.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 192 of 2008
| JANE ESTELLE LYONES |
First Applicant
| SCOTT ANTHONY LYONES |
Second Applicant
| DEAN EDWARD LYONES |
Third Applicant
| DANIELLE JANE LYONES |
Fourth Applicant
| BRADLEY ANDREW LYONES |
Fifth Applicant
| NICOLA ROSEMARY LYONES |
Sixth Applicant
And
| PAUL FARRELL AS DELEGATE OF THE MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 December 2008 the applicants came before this Court urgently seeking an order allowing the applicants to remain in Australia until the first applicant’s husband’s visa status has been determined. The first applicant, Mrs Lyones, has named her five children as applicants in these proceedings.
The matter was then adjourned until 11 December 2008 to provide time for all parties to provide further relevant information to the Court and to give the applicants some opportunity to obtain legal advice.
When the matter came back on for hearing on 11 December 2008 the Court had before it four affidavits as follows:
a)three affidavits of Mrs Lyones sworn 5, 9 and 11 December 2008;[1] and
b)an affidavit of Thalia O’Sullivan filed on behalf of the respondent sworn 10 December 2008.[2]
[1] Respectively, “Mrs Lyones’ First Affidavit”, “Mrs Lyones’ Second Affidavit” and “Mrs Lyones’ Third Affidavit”.
[2] “Ms O’Sullivan’s Affidavit”.
The application
From Mrs Lyones’ Second Affidavit it appears to the Court that the applicants seek:
a)an adjournment of the hearing date of 11 December 2008 to obtain legal advice;
b)an order restraining the Department of Immigration & Citizenship[3] from taking any action until the Minister for Immigration and Citizenship[4] or Migration Review Tribunal has reviewed the matter; and
c)an order that the Migration Review Tribunal or the Minister deal with the matter and not the Department.
[3] “Department”.
[4] “Minister”.
Mrs Lyones has also suggested that the Department is in contempt of Court by not meeting with the applicants.
During the hearing on 11 December 2008 Mrs Lyones requested an adjournment of at least two months in order to properly prepare the case and raise the funds to obtain legal advice. The adjournment was opposed by the respondent.
In Mrs Lyones’ Third Affidavit and in submissions during the hearing, the applicants say that there are two constitutional issues raised in this matter. The first issue is that s.34 of the Constitution allows British subjects to be elected in Parliament. That lends support to the second issue: that the meaning of ‘alien’ within s.51(xix) of the Constitution does not include British subjects. The respondent says that no constitutional issues arise.
The applicants also rely upon Mrs Lyones having sworn an Oath of Allegiance as evidence of citizenship.
Relevant facts
Visas
A review of the affidavits relied upon in this matter demonstrates that Mr and Mrs Lyones and their children have been in and out of Australia on numerous occasions on various visas since June 2005.[5]
[5] Ms O’Sullivan’s Affidavit, paras.4-36.
For present purposes it suffices to recite only a little of the overall history.
On 24 July 2008 Mr Lyones was granted a subclass 676 visa, which, on hardship grounds, had work rights attached, so as to assist Mr Lyones and his family in meeting mortgage payments on the family home.[6]
[6] Ms O’Sullivan’s Affidavit, para.37.
On 15 August 2008 an application made by Mrs Lyones for a subclass 457 visa was refused.[7] That decision was reviewable,[8] but there is no evidence of any application to review by Mrs Lyones.
[7] Ms O’Sullivan’s Affidavit, para.38.
[8] Ms O’Sullivan’s Affidavit, annexure TOS 7 at pages 124 and 143-144.
On 11 September 2008 Bridging A visas for the applicants ceased, on the same day that Mr Lyones, who had a subclass 676 visa returned to Australia.[9] Mr Lyones made an application for a subclass 457 visa naming the applicants as dependents.[10]
[9] Ms O’Sullivan’s Affidavit, para.40.
[10] Ms O’Sullivan’s Affidavit, paras.40-42.
On 23 September 2008 the applicants were granted Bridging E visas until Mr Lyones’ subclass 457 visa application was assessed.[11]
[11] Ms O’Sullivan’s Affidavit, para.44.
On 12 November 2008 Mr Lyones’ subclass 457 visa was deemed to have been withdrawn by reason of his employer’s nomination being refused, with the consequence that no review rights attach in respect of that application.[12]
[12] Ms O’Sullivan’s Affidavit, para.47 and annexure TOS 10 at page 177.
On 9 December 2008 Mr Lyones lodged a further subclass 457 visa application and was granted a Bridging C visa pending determination of that application.[13]
[13] Ms O’Sullivan’s Affidavit, para.48.
The applicants remain on a Bridging E visa which is due to expire on 18 December 2008.[14]
[14] Ms O’Sullivan’s Affidavit, para.48.
The applicants’ Bridging Visa E is subject to condition 8512 of Sch. 8 of the Migration Regulations 1994 (Cth) which provides that:
The holder must leave Australia by the date specified by the Minister for the purpose.
Efforts to obtain legal advice
Mrs Lyones has informed the Court of her efforts to obtain legal advice in this matter. She does not presently have the means to pay for legal advice for herself and the other applicants, her children. An application for legal aid is pending. Mrs Lyones requested an adjournment of the hearing date of 11 December 2008 to earn money to pay for legal advice or to ascertain whether she has been given a grant of legal aid.[15]
[15] Ms. Lyones’ Second Affidavit, paras.1-6.
There is no evidence before the Court as to:
a)how Mrs Lyones proposes to earn money to pay for legal advice; and
b)how long it might take for the legal aid application to be processed.
Consideration
Adjournment
The Court accepts that Mrs Lyones has made genuine attempts to obtain legal advice and that she does not have the means to pay for legal advice. Self represented litigants are common in this Court, especially in migration matters, and Mrs Lyones had the assistance of a McKenzie friend.
The Court has an obligation to ensure that proceedings are not protracted.[16]
[16] Federal Magistrates Act 1999 (Cth), s.42.
An adjournment of the hearing date is refused. An adjournment would unduly protract the matter by a number of months, in circumstances where any legal advice obtained would not affect the outcome in this particular matter, which turns on whether this Court has jurisdiction to grant the orders sought by the applicants.
Department meeting
Mrs Lyones suggests the Department may be in contempt of Court for not following a ‘court directive to a meeting’. The Court suggested at the urgent first directions hearing on 5 December 2008 that mediation, or at least a meeting, between the applicants and the respondent was a possible way forward in this matter. The Court did not order that there be a meeting or mediation. The Department is not in contempt of Court.
Constitutional Questions
The Constitution gives the Commonwealth Parliament[17] the power to make laws in relation to migration and elections.
Section 34 of the Constitution
[17] “Parliament”.
The applicants submit that s.34 of the Constitution shows that Mrs Lyones, as a citizen of the United Kingdom, is entitled to be a member of the Parliament and that no section in the Constitution describes citizens of the United Kingdom as aliens. The applicants say that for s.34 to be changed, a referendum is required under s.128 of the Constitution.
Section 34 of the Constitution provides that:
Qualifications of members
Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:
(i) he must be of the full age of twenty‑one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;
(ii) he must be a subject of the Queen, either natural‑born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.
Section 34 of the Constitution gives the Parliament to “provide otherwise”. Parliament has elected to “provide otherwise”, as provided for in s.34 of the Constitution, by enacting s.163 of the Commonwealth Electoral Act 1918 (Cth) which states that:
Qualifications for nomination
(1) A person who:
(a) has reached the age of 18 years;
(b) is an Australian citizen; and
(c) is either:
(i) an elector entitled to vote at a House of Representatives election; or
(ii) a person qualified to become such an elector;
is qualified to be elected as a Senator or a member of the House of Representatives.
(2) A person is not entitled to be nominated for election as a Senator or a member of the House of Representatives unless the person is qualified under subsection (1).
Parliament has thus validly legislated as envisaged by s.34 of the Constitution to provide that only Australian citizens, aged 18 and over who are qualified to vote in elections for the House of Representatives, are qualified to be elected to the Parliament. No referendum under s.128 is required.[18] Mrs Lyones does not meet these qualification requirements.[19]
[18] Moens G.A and Trone J, Lumb & Moens’ The Constitution of the Commonwealth of Australia Annotated, (7th Edn) (Chatswood: LexisNexis Butterworths Australia, 2007), pages 83 and 397.
[19] Nor, insofar as it might be relevant does Mr Lyones.
Consequently, the applicants’ submissions in this regard are wrong and cannot succeed.
Meaning of ‘alien’ in the Constitution
The Commonwealth Parliament is granted the power under s.51(xix) to legislate in relation to ‘naturalization and aliens’. The applicants say that the meaning of ‘alien’ in s.51(xix) of the Constitution does not include citizens of the United Kingdom and thus the applicants’ cannot be subject to the Migration Act.
In Shaw v Minister for Immigration and Multicultural Affairs[20] the High Court held by majority that the word ‘alien’ in s.51(xix) of the Constitution included British subjects. The result was that the applicant in Shaw, a citizen of the United Kingdom, could be deported under the relevant section of the Migration Act. Applying Shaw, the applicants in this matter are aliens under the Constitution and the Migration Act applies to them.
[20] (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 (“Shaw”), distinguishing Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51. In Shaw, the applicant was a citizen of the United Kingdom who came to Australia as a child in 1974. Gleeson CJ, Gummow and Hayne JJ in the majority with whom Heydon J agreed found that s.51(xix) allowed the Commonwealth Parliament to legislate and determine who is an alien. In the minority, McHugh, Kirby, and Callinan JJ held that a British subject could only be an ‘alien’ under s.51(xix) of the Constitution since the passing of the Australia Act in 1986. On both views the applicants in this matter are aliens under the Constitution as the arrived in Australia after the passage of the Australia Act. The word “alien” is a constitutional word, finding its legislative synonym in “non-citizen” as defined in the Migration Act, s.5. See Shaw CLR at 61 per Kirby J; HCA at para.95 per Kirby J.
Consequently, the applicants’ submissions in this regard are wrong and cannot succeed.
Oath of allegiance
It was also suggested that by having recently signed an Oath of Allegiance that Mrs Lyones was entitled to be treated as an Australian citizen.[21] The falsity of that notion is demonstrated by the fact that if it were true any person from any place in the world arriving in Australia and completing an Oath of Allegiance would be entitled to be a citizen. It is not an argument on which the applicants can succeed.
The jurisdiction of the Court
[21] Mrs Lyones’ Third Affidavit, annexure JEL 19.
Jurisdiction conferred
Jurisdiction is conferred upon this Court by the Migration Act. The Court has power to undertake judicial review of decisions in certain limited circumstances.[22] For present purposes, the Court may remit a matter back to the Migration Review Tribunal for reconsideration of a prior decision relating to the grant, refusal or cancellation of a visa when jurisdictional error is shown on the part of the decision maker.
[22] Migration Act, s.476.
The Court does not have jurisdiction in relation to primary decisions.[23] A primary decision is defined as:
a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.[24]
[23] Migration Act, s.476(1)(a).
[24] Migration Act, s.476(4).
Lack of jurisdiction
The Court accepts the respondent’s submission that there is currently no application for judicial review of a decision over which the Court has jurisdiction, nor could there be in any event on the facts presently before the Court.
The applicants ask the Court to refer the matter directly to the Migration Review Tribunal or the Minister. The Court is not empowered to do so under the Migration Act. The Court is only granted the power to judicially review certain decisions, namely decisions, which are not primary decisions, which are infected by jurisdictional error.
Ms Lyones states that the Department has denied the applicants natural justice and the Department’s decisions are tainted with bias. However, on the information before this Court, there has been no review of the merits of the various decisions to refuse and cancel the applicants’ various visas. The applicants and Mr Lyones have either not sought review, or are not allowed to seek review, in the Migration Review Tribunal, for reasons which do not currently require further examination. In those circumstances, the Court has no jurisdiction in the matter.
No decision in relation to removal from Australia
The Court notes that there has been no decision made to remove the applicants from Australia so there is presently no decision to review in that regard.
Respondency
The respondent is presently named as “Paul Farrell as agent of the Australasian Department of Immigration & Citizenship”. It is more appropriate that the respondent be named as “Paul Farrell as delegate of the Minister for Immigration & Citizenship”, and there will be an order accordingly.
Conclusion
The Court finds that there has been no application made within the Court’s jurisdiction and no such application can be made in any event in the present circumstances. Accordingly, the application will be dismissed and the Court will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Michele Lord
Date: 12 December 2008
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