Minister for Immigration & Multicultural & Indigenous Affairs & B & B

The Minister for Immigration & Multicultural & Indigenous Affairs applied to the Full Court of the Family Court of Australia for a certificate under section 95(b) of the Family Law Act 1975, and for a stay of the Court's judgment of 19 June 2003 pending an appeal to the High Court. The underlying dispute concerned applications by two boys, A and M, for orders that the Minister release them from immigration detention due to harm to their welfare. Their father also intervened, seeking orders for residence or contact and protection for the children. The trial judge had previously found that the Family Court lacked jurisdiction to make orders concerning children in immigration detention, but this decision was overturned on appeal by the Full Court.

The primary legal issues before the Full Court were whether to grant a certificate under section 95(b) of the Family Law Act 1975, certifying that an important question of law or public interest was involved in the matter, and whether to grant a stay of the Court's judgment pending an appeal to the High Court. The Court was required to consider the principles governing the exercise of its discretion to grant a section 95(b) certificate, particularly in light of the High Court's ultimate authority to grant special leave to appeal, and the principles applicable to granting a stay of execution of its orders.

The Court reasoned that the issues raised regarding the scope of the Family Court's welfare jurisdiction, its application to children in immigration detention, and the interpretation of the Migration Act 1958 in relation to indefinite detention, constituted important questions of law and public interest. The Court noted that while the High Court generally controls its own appellate jurisdiction, section 95(b) provides a unique mechanism for this Court to certify matters of significance. The Court found that the previous restrictive approach to granting certificates was too narrow and that the present case met the criteria for certification. The Court also considered the Minister's application for a stay, acknowledging that while no specific statutory provision enabled such a stay, the Court possessed the inherent jurisdiction to grant one pending a High Court appeal.

The Court granted the certificate under section 95(b) of the Family Law Act 1975, identifying specific important questions of law and public interest concerning the Family Court's welfare jurisdiction and the validity of child detention under the Migration Act. The Court also granted the Minister's application for a stay of the operation of its judgment of 19 June 2003, pending the determination of the appeal to the High Court, subject to the Minister agreeing to pay the reasonable legal costs of the applicants and intervener for the High Court appeal, irrespective of the outcome.