Minister for Immigration & Multicultural & Indigenous Affairs & B & B - [2003] FamCA 591

[2003] FamCA 591

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA Appeal No. SA82 of 2002

File No. AD3433 of 2002

AT SYDNEY

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Applicant

- and -

B (INFANTS)

Respondent Infants

- and -

B (INTERVENER)

Respondent Father

REASONS FOR JUDGMENT

CORAM:Nicholson CJ, Ellis and O’Ryan JJ.

DATE OF HEARING: 26 June 2003

DATE OF JUDGMENT: 8 July 2003

APPEARANCES:

Mr Bennett QC with Mr Kennett of counsel, instructed by the Australian Government Solicitor, Level 20, 25 Grenfell Street, Adelaide SA   5000, appeared on behalf of the Applicant.
Mr Tilmouth QC with Mr Ower of counsel, instructed by Jeremy Moore & Associates, 10 Albyn Terrace, Strathalbyn   SA   5255, appeared on behalf of the Respondent Infants.
Mr McQuade of counsel (instructed by Boylan & Co, 138 Florence Street, Port Pirie   SA   5540, appeared on behalf of the Respondent Father.

Catchwords: FAMILY LAW – Children – Immigration detention – Application by Minister for s.95(b) certificate – Important questions of law and of public interest involved.

Application by Minister for a stay of operation of orders pending appeal to the High Court – Applicable principles.
s.95(b) certificate granted.
Application for stay dismissed.

Introduction

This is an application filed on 23 June 2003 by the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) in which the following orders are sought:-
“1.That the Full Court issue a certificate, in the form of Attachment A hereto or as otherwise directed, that an important question of law or of public interest is involved in this matter for the purposes of section 95(b) of the Family Law Act 1975.
2.That the execution of the Court’s judgment of 19 June 2003 be stayed pending determination of an appeal in the High Court of Australia against the said judgment.
3.Or alternatively, that the execution of the Court’s judgment of 19 June 2003 be stayed pending determination of an application for Special Leave to Appeal in the High Court of Australia against the said judgment, and if Special Leave be granted pending determination of the appeal.
4. Such other or further orders as the Court deems fit.
5. Costs of the application.”
The application arises out of an appeal heard by the Court on 17 and 18 December 2002. On
19 June 2003, the Court delivered its reasons for judgment and made the following order:-
“1. That the appeal of the appellant infants and of the appellant intervener be allowed.
2.That paragraphs 1, 2, and 3 of the order made on 9 October 2002 be set aside and in lieu thereof, it be ordered that the application of the appellant infants filed on 31 July 2002 and the applications of the appellant intervener filed on 18 September 2002 and on 19 September 2002 be remitted for rehearing as a matter of urgency before a Judge other than the Honourable Justice Dawe.”
In addition, the Court gave directions in relation to certain costs.
The history of the appeal to date may be summarised as follows:-
In July 2002 two boys, A and M aged 14 and 12 applied, by their mother as next friend, to the Family Court for orders that the Minister release them from a particular immigration detention centre. The ground upon which A and M principally relied was, broadly speaking, because the continued detention was harmful to their welfare. The father (“the Intervener”) also intervened in the proceedings, seeking orders that the two boys and their three younger sisters reside with him; or, in the alternative, that he have regular contact with them and that certain orders be made to protect the children whilst they remain in detention.
In October 2002, the trial Judge found that the Family Court had no jurisdiction to make orders in respect of children held in immigration detention, and accordingly dismissed the application. The appeal to the Full Court was initially brought on behalf of the two boys and the father as appellant Intervener. Although not parties to the original application, the mother was also given leave to add A and M’s three younger sisters aged 11, 9 and 6 as appellants (together, “the children”).
At the time of the trial, the children and their mother were detained at one particular immigration detention centre and the father was living in the general community. However, by the date of the hearing of the appeal, the mother and children had been transferred to another detention centre, and the father was detained in the same facility. All family members are unlawful non-citizens within the meaning of s.14 of the Migration Act 1958.
In addition to the application referred to in paragraph (1) hereof, on 23 June 2003 the Minister filed in the High Court an Application for Special Leave to Appeal from the whole of the judgment of the Full Court. If that appeal was allowed, he indicated that he sought an order that the order of the Full Court be set aside and in lieu thereof that the appeal from the judgment of Dawe J given on 9 October 2002 be dismissed.
Following the hearing of the appeal, the Full Court held that the jurisdiction of the Family Court is not limited by the State’s referral of power in relation to ex-nuptial children, and that the welfare jurisdiction of the Family Court extends to all children of marriages in Australia, including children in immigration detention, where the particular orders sought arise out of, or are sufficiently connected to the marriage relationship. The Full Court found that the welfare jurisdiction is similar to the parens patriae jurisdiction formerly exercised by the Court of Chancery in England and also exercised by the Supreme Courts of the States and Territories. Further, the Court held that the constitutional validity of that jurisdiction is derived from the marriage, divorce and incidental powers contained in ss.51(xxi) and (xxii) of the Constitution, which are to be broadly construed. Accordingly, in exercising the welfare jurisdiction, the Family Court may make orders for the protection of children of marriages directed at third parties, where the orders sought are sufficiently connected to the relevant heads of constitutional power. The Family Court, in exercising the welfare jurisdiction, may thus make orders for the protection of children of marriages in immigration detention, where the orders sought are sufficiently connected to the relevant heads of constitutional power. Section 196(1) of the Migration Act should not be interpreted as permitting the indefinite detention of children in circumstances where there is no real likelihood or prospect in the reasonably foreseeable future of the children being removed and thus released from detention.
Nicholson CJ and O’Ryan J, (Ellis J dissenting) concluded that the trial Judge erred in determining that the Family Court of Australia lacked jurisdiction to hear the applications. In addition, their Honours concluded that the children did not appear to have any means of bringing an end to their detention and in particular appeared to lack the capacity to make a request for repatriation pursuant to the provisions of s.198(1) of the Migration Act. Importantly, their Honours found that, subject to the findings of a trial Judge as to the children’s capacity to bring an end to the detention, their continued detention was unlawful and if so the Family Court could, in the exercise of its welfare jurisdiction, order the Minister to release the children.
Nicholson CJ and O’Ryan J also found that should the finding that the Family Court has the power to order the release of the children be incorrect, the Court may still give directions about the nature and type of detention in which children are held. They found that if the marriage, divorce and incidental powers contained in the Constitution were insufficient to justify the assumption of jurisdiction by the Court to make orders pursuant to s.67ZC of the Family Law Act 1975 (“the Act”), then resort could be had to the external affairs power by reason of the ratification by Australia of the United Nations Convention of the Rights of the Child (UNCROC). Their Honours found that UNCROC was incorporated into domestic law by the Family Law Reform Act 1995 (“the Reform Act”). Consequently, and insofar as it did not otherwise do so, s.67ZC applies to all children in Australia, including ex-nuptial children.
Ellis J found that in exercising its welfare jurisdiction, the Family Court has power to make orders for the welfare of children of a marriage, insofar as the subject matter(s) of the orders sought are sufficiently connected with the relevant heads of constitutional power, but that an order releasing children from a particular form of immigration detention is not so connected. However, he found that the provision of adequate, proper and prompt medical treatment for the children and of ensuring they are not exposed to violence and trauma are matters directly related to their protection and welfare and that such matters arise out of and are aspects of the relevant marriage relationship. As to UNCROC, his Honour found that in enacting the Family Law Reform Act (1995), the Commonwealth Parliament did not implement UNCROC or the relevant parts thereof. Thus the provisions of Part VII of the Act, in particular s.67ZC, are not laws with respect to external affairs under s.51(xxix) of the Constitution. Accordingly, the Court does not have the power to make the orders sought by reference to s.51(xxix).
As a consequence, the appeal was allowed and the order referred to in paragraph 2 hereof was made.

Section 95(b) Family Law Act

Section 95 of the Act provides:-
“Notwithstanding anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except:
(a) by special leave of the High Court; or
(b)upon a certificate of a Full Court of the Family Court that an important question of law or of public interest is involved.”
In Re Z (No 2) (1996) FLC 92-708 Fogarty J said at 83,494:-
“Section 95(b) is an unusual provision with no counterpart in Australia. Under the Matrimonial Causes Act 1959 access to the High Court was by ''special leave of the High Court'' or by way of a case stated by a single judge (see ss.91 and 93). The Family Law Bill 1974, when originally introduced into the Parliament, limited that to appeals where the High Court granted special leave. However, on 27 November, 1974, during the committee stages of the debate on that Bill in the Senate, the Attorney-General moved an amendment to that clause to its present form, thus introducing what is now s 95(b). The motion was agreed to without discussion. Whilst it is clear that there was a conscious decision to include this provision, there does not appear to be any other material which throws light on the policy reasons for it. There was no equivalent provision in the Federal Court of Australia Act which was passed in 1976.”
Nicholson CJ and Frederico J recorded at 83,492 that the power to grant a certificate has been exercised extremely sparingly and the traditional view of this Court has been that the High Court should decide which matters arising from this Court the High Court wishes to entertain in its appellate jurisdiction. The more usual way that matters proceed to the High Court is by Application for Special Leave and the reasons for this are fairly self evident. In Re Z (supra) Nicholson CJ and Frederico J also said at 83,493:-
“… to grant a certificate is a serious step which effectively usurps High Court’s discretion and detracts from its capacity to determine for itself, the matters which it considers significant for the function and development of the law as seen from the position of the highest court in the land …”
However, there have been circumstances where this Court has granted a certificate: Stowe v Stowe (No 2) (1981) FLC 91-074; Fisher v Fisher (No 2) (1986) FLC 91-767 and Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293. In Re Z (supra) Fogarty J, in a dissenting judgment, said at 83,494:-
“I in no way doubt the fundamental importance of the High Court, as the final national Court of Appeal in Australia, controlling its own work and that this is a factor of significance which must be taken into account in a substantial way in considering applications under s 95(b). However, that appears to me to be different from saying that, because the avenue of special leave to appeal is available, that in itself should lead to a rejection of a s 95(b) application where it is clear that the stringent requirements of the section are satisfied.
…
If the view is effectively adopted that certificates should be refused notwithstanding the importance of the case but for the reason that there remains scope for an application for special leave to appeal there seems to be little purpose in the continued existence of s 95(b). It creates rights and expectations which almost inevitably are going to be defeated.”
In Laing v Director General, Department of Community Services New South Wales (1999) FLC 92-850 Nicholson CJ said at 86,002-86,003:-
“25.I am now inclined to the opinion that the view in Re Z (No 2) was too restrictive. As Dr Griffith QC pointed out in the present case, it does not seem to be consistent with the views expressed in the majority judgment of McHugh, Gummow and Callinan JJ in the subsequent High Court decision of CDJ v VAJ (1998) FLC ¶ 92-828 at para 110 and by Kirby J in para 186 subpara 8.
26.Counsel were unable to direct us to any material that provided an explanation for the inclusion of s 95(b) in the Act. One is therefore left to speculate to some degree as to why it was included.
27.I consider that it must be that because of the specialist nature of this Court and the limited number of family law cases that were likely to come before the High Court, the legislature considered that the Full Court of this Court would in some circumstances, have a high degree of awareness of what were important questions of law or public interest in the family law area.
28.It is difficult to think of any other explanation for the inclusion of this provision, which constitutes a unique power so far as intermediate appellate courts are concerned in this country.
29.This view may gain some force from the inclusion of the words ''public interest'' in s 95(b). By way of contrast, s 35A of the Judiciary Act 1903 (Cth) provides:
“In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant by [but] shall have regard to -
(a)whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law -
(i) that is of public importance, whether because of its general application or otherwise; or
(ii)in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b)whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.”

30.It is to be noted that this section was inserted after s 95(b) of the Family Law Act . While it might be said that it is perhaps difficult to distinguish between ''public interest'' and ''public importance'', s 95(b) draws a clear distinction between important questions of law and public interest whereas ''public importance'' in s 35A is made referable to a question of law.

31.It thus may be that s 95(b) of the Family Law Act provides a broader test than is contained in s 35A of the Judiciary Act.

32.However this may be I am satisfied that the view previously taken by Justice Frederico and myself was too restrictive in that it purported to read limitations into the section that were not there. The section must be given its ordinary meaning and that is what I propose to do.”

In this instance, the Solicitor General submitted that we should grant a certificate pursuant to the provisions of s.95(b) of the Act because the issues involved are of great importance. He further submitted that it is almost inconceivable that the High Court would not grant Special Leave. Counsel for the children made no submissions in relation to whether an important question of law or of public interest is involved and, referring to Laing v Director General, Department of Community Services New South Wales (supra) submitted that s.95(b) is to be interpreted liberally. Counsel for the father opposed the application, submitting that the traditional approach should be adopted.
In this matter we are satisfied that there are important questions of law and of public interest involved and that, in all the circumstances, it is appropriate to grant a certificate pursuant to s.95(b) of the Act. We accept the submissions of the Solicitor General in this regard. Neither counsel for the children or counsel for the Intervener submitted that important questions of law and of public interest were not involved. However, whilst counsel for the children submitted that it was appropriate for this court to grant a certificate, counsel for the Intervener submitted that we should not. We accept that were we to grant such a certificate, the appeal may be considered by the High Court earlier than if we refuse to do so. As observed by Fogarty J in Re Z (supra) at 83,494:-
“The further advantage in granting a certificate in this case, where it is otherwise appropriate to do so, is that it may enable this matter to be determined by the High Court some months earlier than will otherwise be the case if the special leave application, which I understand is listed for hearing late this year, is to provide the only avenue of access.”
We note the observations of the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) in DJL v Central Authority (2000) 170 ALR 659 at 665 namely:-
“… the certificate should specify the terms of that important question. It should also state whether that question is one of law of public interest, or both. The apparent object of s.95(b) will then be achieved. This is to obviate the necessity for a grant of Special Leave by the High Court, limited to a ground perceived by the High Court, on the Special Leave application, to be an important question of law or of public interest.”
The certificate attached to the present application is in the following form:-
“The judgment of the Full Court of the Family Court given on 19 June 2003 in the matter of B and B (Infants) and B (Intervener) and the Minister for Immigration and Multicultural and Indigenous Affairs involves the following issues which are important questions of law and of public interest:

1.The scope of the “welfare” jurisdiction of the Family Court under s.67ZC and/or s.68B of the Family Law Act 1975, in particular whether that jurisdiction extends to:

(i)determining the validity of the detention of a non-citizen child (who is the child of a marriage) under s.196 of the Migration Act 1958, and

(ii)making orders directing officers in the performance of their functions under the Migration Act in relation to such a child.

2.Whether the provisions of Part VII of the Family Law Act operate according to their tenor, on the basis that they are supported by s.51(xxix) of the Constitution (as implementing the United Nations Convention on the Rights of the Child), or only have the more limited operations provided for in Subdivision F of Division 12 of Part VII.

3.Whether the detention of a child who is an “unlawful non-citizen” within the meaning of the Migration Act is beyond the authority conferred by that Act when that detention extends over a lengthy period or its duration is indefinite.

4.If so, whether the detention of a child is “indefinite” if the child lacks capacity to make a request under s.198(1) of that Act.”

We are of the view that a certificate in this form adequately identifies the important questions of law and of public interest in the instant case.
On behalf of the children it was submitted that if we were minded to grant a certificate pursuant to s.95(b) of the Act, we should only do so on the following condition or undertaking by the Minister:
“The Respondent Minister pays the reasonable legal costs of the Applicants and the Intervener of and incidental to the appeal to the High Court irrespective of the result, and not seek to interfere with the costs orders in the Court.”
The Solicitor General advised that the Minister did not oppose the condition with the exception of any costs order of this Court. We have not as yet received written submissions from all parties relating to the costs of the appeal. In our view, the condition should relate only to the costs of the appeal to the High Court.

Stay of execution of the Order of 19 June 2003

The next issue for consideration is the order sought by the Minister for a stay of execution of the order of the Full Court made on 19 June 2003. During the course of submissions, the Solicitor General conceded that the Minister sought not a stay of execution of the order, but a stay of operation thereof. See Clemett and Clemett (1981) FLC 91-013 at 76,175-76,176 per Nygh J. The application for the stay was opposed by the children and the Intervener.
Although there are no provisions in the Act or Family Law Rules which specifically enable this Court to order a stay of the operation of a decree pending an appeal from the Full Court of the Family Court to the High Court, there is no issue that this Court has jurisdiction to grant such a stay pending the determination of the appeal by the High Court. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Brennan J identified the principles governing the grant of a stay where an application for Special Leave to Appeal to the High Court is pending. His Honour said at 684-685:-
“A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. That was the situation to which this court adverted in Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 3) (1913) 16 CLR 384. There the court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal. What the court said in that case, at 386, is applicable to this case:
“The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants’ appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience.”
…

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this court’s discretion. In each case when the court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider — first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”

In De L v Director General, NSW Department of Community Services and Another (1996) 136 ALR 201 Gummow J had regard to the factors identified by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (supra) when considering whether to exercise his discretion to grant a stay: see also “Re Evelyn” (No 2) (1998) FLC 92-817 and Fauna Holdings Pty Ltd and McGillivray v Mitchell (2000) FLC 93-024.
In Federal Commission of Taxation v Myer Emporium Ltd (1986) 64 ALR 325 at 327
Dawson J said:-
“It is well established by authority that the discretion which [the Rules of the Court] confer to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. See, e.g., The Annot Lyle (1886) 11 P.D. 114, at p.116; Scarborough v Lew's Junction Stores Pty. Limited (1963) VR 129, at p 130. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. See Wilson v Church (No.2) (1879) 12 ChD 454, at p 458; Klinker Knitting Mills Pty. Ltd. v L'Union Fire Accident and General Insurance Co. Ltd. (1937) VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. See McBride v Sandland (No.2) (1918) 25 CLR 369 at p 375.”

In JRN and Anor v IEG and Anor (unreported, B18 of 1998, 3 August 1998) Kirby J said:-

“The principles governing stays
The issue is, therefore, what should be done in the meantime. Should a stay be granted? The principles which govern the determination of stays in this Court are not in doubt. They are stated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681. They have been applied many times, including recently. In the cases applying the Burgundy Royale principles, it has been pointed out that it is much more difficult for an applicant to secure a stay in this Court, pending an application for special leave to appeal, because a case will have proceeded through at least two tiers of the judicial process before it comes to this Court. As I said in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 464:
The would-be appellant’s arguments will have been rejected by the court whose orders are the subject of the special leave application. Only a relatively small proportion of the applications for special leave succeed. To succeed, something more than legal or factual error must usually be shown. These are reasons for maintaining a higher standard in this court for the provision of a stay than would now usually be imposed by other Australian appellate courts in respect of invocations of their jurisdiction.

Nevertheless, in Bryant, I drew to attention, at page 464, to the fact that different considerations may apply in respect of the operation of the criminal law or in respect of laws designed to protect the public. In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.”

It may be said that in the instant case, the grant of a certificate by this Court under s.95(b) eliminates the necessity for Special Leave to Appeal being granted in order for the matter to be considered. We would, however, draw particular attention to Kirby J’s reference to the special position of children. In this case, the consequences of the grant of a stay would mean that the children, who on the view of the majority of the Full Court may be unlawfully detained, would remain in such detention pending the determination of the appeal to the High Court. In the majority judgment, reference is made to the importance of issues relating to individual liberty. It would seem to us to run contrary to these principles to grant a stay, which may well have the effect of continuing what Nicholson CJ and O’Ryan J found to be a potentially unlawful detention of these children.
No submissions were made by the Solicitor General as to the principles to be applied in considering the application of the Minister. In written submissions, Counsel for the children submitted that the criteria for a stay pending an appeal to the High Court are settled and relied upon Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (supra). In the absence of submissions to the contrary, we propose to exercise the discretion in the instant case by reference to the principles enunciated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (supra) and in JRN & Anor v IEG & Anor (supra). See also “Re Evelyn” (No 2) (supra) at 85,294 – 85,295.
The Solicitor General submitted that a stay was necessary to preserve the integrity of the litigation because there may be a rehearing of the applications of the children and the Intervener before the appeal was heard and determined by the High Court, and the outcome of any such rehearing may be rendered nugatory by the outcome of the appeal. He further submitted that a stay would avoid the possible situation arising where the continued detention of the children was found to be unlawful at the rehearing, but was subsequently found to be lawful upon the hearing of the appeal. He submitted that a significant factor for consideration was avoiding a change in who had “the custody” of the children. No further submissions were made by the Solicitor General in support of the application for the stay.
Counsel for the children submitted that the need to maintain some sort of status quo for the children is clearly misconceived given that their detention may be unlawful. Further, he submitted that there are no special or exceptional circumstances that would justify the grant of a stay, and that the Solicitor General could point to no possible detriment or harm to the Minister that may result if the stay is not granted. Counsel for the Intervener submitted that the issue involved is that of the liberty of the children, and that whilst there is no prejudice to the Minister if the stay was refused, there is great prejudice to the children if the stay was granted.
We do not consider that the subject matter or the integrity of the litigation will be threatened should a stay be refused. As noted above, the Minister is seeking a stay of the operation of the Court’s order. However that order has no immediate effect other than to remit the applications of the children and the Intervener for rehearing.
In Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1037 Merkel J dismissed an application for a stay of orders that the applicant be released from immigration detention. In that case the Minister contended that:-
“The release from detention of an unlawful non-citizen, namely a person in Australia who is a non-citizen without a visa, raises an important issue under the Migration Act 1958 (Cth) which should be determined by an appeal court. The release is contrary to the manner in which the Minister has administered the Act. The release may impede the ability of the Minister to remove the applicant from Australia. In particular, the Minister contends that the risk of abscondment may render nugatory a successful appeal in that the applicant may not be able to be removed if he is not in detention.”
However, Merkel J reasoned that:-
“One aspect of the present matter is, in my view, of fundamental importance; the Court has found that the applicant is being unlawfully detained and therefore unlawfully deprived of his liberty. Having regard to that matter in particular, the circumstances relied upon by the Minister do not warrant the Court ordering that the applicant's unlawful detention continue until any appeal of the Minister is heard and determined. Such an order will tend to deny the applicant the fruits of his victory, that is his liberty.”
Merkel J added that there was no evidence of a real risk of abscondment, and that co-operation by the applicant to facilitate his removal, and daily reporting conditions ordered by his Honour, protected the Minister against the outcome of a successful appeal being rendered nugatory. Merkel J thus refused the application for a stay of the order.
In VFAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1159 Merkel J heard another application for a stay of an order releasing the applicant who was being held in immigration detention. He referred to the analogy with Al Masri and repeated his reasoning in again refusing to grant a stay. He stated that:-
“… as in Al Masri, in the present case there is one aspect which, in my view, is of fundamental importance. The Court has made an order for the release of a person currently being held in detention and therefore an order for the liberty of that person. That circumstance is, in effect, the fruits of the victory that the applicant has enjoyed on his application. To stay my order would substantially deny the applicant the fruits of that victory and, given that the date of the final hearing may not be too distant, it may well be that the victory will be rendered illusory if a stay were granted.”
Thus in both Al Masri and VFAD Merkel J applied what he labelled as ‘an aspect of fundamental importance’ when considering the granting of a stay ordering the release of an detainee being held in immigration detention. The matter of ‘fundamental importance’ is that in such cases, to deny an order for release of a detainee being held unlawfully would be to deny that detainee the ‘fruits of the victory’, and that is too great a matter to be denied.
Finally, in the instant case, a consideration of the balance of convenience favours the refusal of the application for a stay.
We are therefore of the view that the application for an order staying the operation of the order of the Full Court should be dismissed.

Costs of the Application

At the completion of the hearing, we heard submissions in relation to the costs of the application.
The Solicitor General submitted that those costs should be in the discretion of the Court, whereas counsel for the children and the Intervener both submitted that the Minister should be ordered to pay the costs of the children and Intervener of and incidental to the application. Given the approach adopted by counsel in relation to the application for a s.95(b) certificate, in our view, the circumstances justify the making of an order that the Minister pay the costs of the children and the Intervener only in relation to the stay application.

Orders

We order:-

1.That pursuant to s.95(b) of the Family Law Act 1975 (Cth) a certificate issue as follows:-

The judgment of the Full Court of the Family Court given on 19 June 2003 in the matter of B and B (Infants) and B (Intervener) and the Minister for Immigration and Multicultural and Indigenous Affairs involves the following issues which are important questions of law and of public interest:

1.The scope of the “welfare” jurisdiction of the Family Court under s.67ZC and/or s.68B of the Family Law Act 1975, in particular whether that jurisdiction extends to:

(i)determining the validity of the detention of a non-citizen child (who is the child of a marriage) under s.196 of the Migration Act 1958, and

(ii)making orders directing officers in the performance of their functions under the Migration Act in relation to such a child.

2.Whether the provisions of Part VII of the Family Law Act operate according to their tenor, on the basis that they are supported by s.51(xxix) of the Constitution (as implementing the United Nations Convention on the Rights of the Child), or only have the more limited operations provided for in Subdivision F of Division 12 of Part VII.

3.Whether the detention of a child who is an “unlawful non-citizen” within the meaning of the Migration Act is beyond the authority conferred by that Act when that detention extends over a lengthy period or its duration is indefinite.

4.If so, whether the detention of a child is “indefinite” if the child lacks capacity to make a request under s.198(1) of that Act.

2.That the Minister pay the reasonable legal costs of the respondent Infants and the respondent Intervener of and incidental to the appeal to the High Court irrespective of the outcome of such appeal.

3.That the application of the Minister for a stay of the operation of the order of the Full Court of the Family Court of 19 June 2003 be dismissed.

4.That the Minister pay the costs of the respondent Infants and the respondent Intervener in relation to the application for a stay of the operation of the order of the Family Court, such costs to be as agreed, or failing agreement, as taxed.

I certify that the preceding 43 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate