Morrell, Emma Nitta v Minister for Immigration & Multicultural Affairs
[1996] FCA 335
•10 MAY 1996
CATCHWORDS
CITIZENSHIP - children born in Australia - whether parent a permanent resident at time of birth - "prohibited non-citizen" and "illegal entrant".
Australian Citizenship Act 1948, ss 5A(1), 10(2)
EMMA NITTA MORRELL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
No. NG 95 of 1995
Coram: Whitlam J
Place:Sydney
Date: 10 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 95 of 1995
)
GENERAL DIVISION )
EMMA NITTA MORRELL
Applicant
MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
BARBARA MAURO
Second Respondent
Coram:Whitlam J
Place:Sydney
Date:10 May 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The amended application dated 29 June 1995 be dismissed.
The applicant pay the respondents' costs of the proceeding other than in respect of the claims in Part B of the amended application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 95 of 1995
)
GENERAL DIVISION )
EMMA NITTA MORRELL
Applicant
MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
BARBARA MAURO
Second Respondent
Coram: Whitlam J
Place: Sydney
Date:10 May 1996
REASONS FOR JUDGMENT
This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 and for relief under s 39B of the Judiciary Act 1903. The decision that is the subject of the application was made on 16 June 1992. However, this proceeding was not commenced until 17 February 1995.
The applicant, Emma Nitta Morrell, is a Fijian citizen. She arrived in Australia on 21 January 1987 and was granted an entry permit which expired on 20 February 1987. Soon after arriving in Australia, Miss Morrell commenced a de facto relationship with one Ian Geoffrey Underwood. He is the father of Miss Morrell's daughter born on 14 September 1988 and of her son born on 6 May 1990. Both children were born in Australia.
On 20 February 1991 Miss Morrell applied to the first respondent ("the Minister") for permission to remain permanently in Australia. This involved an application for an entry permit on compassionate grounds under subpar 131A(1)(d)(v) of the Migration (1989) Regulations, which required that "refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident". Miss Morrell claimed that her daughter and son were Australian citizens who would be so affected.
Miss Morrell stated in her application for the entry permit that Mr Underwood was a permanent resident of Australia. However, a departmental memorandum regarding Mr Underwood dated 2 August 1991 stated:
"Mr Underwood arrived in Australia as a migrant on 23.12.84. He was accompanied by his mother, step-father and three sisters. One brother remained in Fiji.
On 24.11.86 he was convicted at Waverley Local Court of 'take and use motor vehicle', and sentenced to 12 months imprisonment. This conviction and sentence rendered him liable for deportation pursuant to the then s.12 (now s.55) of the Migration Act. He was relelased [sic] from prison on 15.6.87.
On 30.4.88 Mr Underwood departed Australia for a holiday in Fiji. He re-entered Australia on 11.5.88 without the necessary s.16 (now s.20) endorsement on his entry permit. Consequently, as of that date, he became an illegal entrant."
On 16 June 1992 the second respondent, the Minister's delegate, refused to grant the entry permit. One reason was that Miss Morrell's children were not Australian citizens. This conclusion depended on the view that Mr Underwood became a prohibited non-citizen on 11 May 1988 by operation of s 16 of the Migration Act 1958 as a result of the matters detailed in the departmental memorandum.
In her amended application to the Court Miss Morrell alleged that a breach of the rules of natural justice occurred in connexion with the making of the delegate's decision and that the decision involved an error of law. The natural justice point related to Miss Morrell's opportunity of responding to the matters stated in the departmental memorandum dated 2 August 1991. That information had been obtained from Mr Underwood. Much of it is, in any event, confirmed in Miss Morrell's affidavit sworn on 2 August 1995 in support of her amended application to the Court. She also acknowledged in cross-examination that, prior to the delegate's decision in June 1992, she "probably" knew that Mr Underwood had been told in June 1991 by a delegate of the Minister that "he was an illegal entrant as from 11th May 1988". The natural justice ground was not pressed at the hearing.
As in force at 11 May 1988, s 16(1) of the Migration Act 1958 relevantly provided:
16.(1)Where, ... a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who-
...
(c)at the time of entry is or was a person of any of the following descriptions, namely:
...
(ii)a person who has been convicted of a crime and sentenced to ... imprisonment for a period of not less than 1 year;
...
that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section."
Counsel for Miss Morrell accepts that s 16 governs the status of a person such as Mr Underwood. However, she submits that s 16 is silent as to its operation on any children of such a person and that, in the absence of any express reference to such children, it is unclear how s 16 operates in relation to the Australian Citizenship Act 1948.
The criterion specified in par 131A(1)(d) of the Migration (1989) Regulations required the delegate in the instant case to consider whether Miss Morrell's daughter and son were Australian citizens on 15 October 1990 and continuously until 16 June 1992. Miss Morrell claimed that her children were citizens by birth.
Section 10(2) of the Australian Citizenship Act 1948 relevantly provides:
"10.(2) ... a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:
(a)a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; ..."
Permanent residents are dealt with by s 5A of that Act which, for present purposes, relevantly provides:
"5A.(1)A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act:
...
(b)in relation to a period on or after 2 April 1984 and before the prescribed date during which the person was present in Australia (other than a prescribed Territory), if:
...
(ii)the person was not, during that period, a prohibited non-citizen;
...
(ba)in relation to a period on or after the prescribed date and before 1 September 1994 during which the person was present in Australia (other than a prescribed Territory), if:
...
(ii)the person was not, during that period, an illegal entrant;
..."
The prescribed date referred to in pars 5A(1)(b) and (ba) is 19 December 1989. The expressions "prohibited non-citizen" and "illegal entrant" are defined by s 5(1) of that Act. It is not necessary to set out those definitions, the first of which may require consideration of s 16 of the Migration Act 1958 as in force from time to time during the period described in par 5A(1)(b).
These were the provisions that the delegate had to apply. Once it is accepted (as Miss Morrell does) that Mr Underwood failed to disclose his conviction and sentence, the consequences are quite straightforward. As a result of his entry into Australia on 11 May 1988 Mr Underwood was a prohibited non-citizen when his daughter was born and an illegal entrant when his son was born. Accordingly, he was not a permanent resident for the purposes of the Australian Citizenship Act 1948 at the time of either child's birth and the children did not become Australian citizens by virtue of their birth in Australia. No question of retrospectivity arises. The substance of each of pars 5A(1)(b) and (ba) was the same when the relevant child was born. So far as Australian citizenship is concerned, the status of the children has not altered since their birth. In my opinion, the decision of the delegate did not involve an error of law.
It follows that the application must be dismissed. I would, in any event, have refused Miss Morrell's motion for an extension of time under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977. The explanations offered by Miss Morrell and her solicitor for the delay in bringing this application are entirely unsatisfactory. After she was informed of the delegate's decision in June 1992, Miss Morrell initially sought to remain in Australia as a refugee. On 27 August 1992 she withdrew her application for refugee status and applied for legal aid on behalf of her children to challenge the delegate's decision. Legal aid was not granted, and on 9 August 1993 Miss Morrell lodged another refugee application. Her claim to refugee status was supplemented on 13 October 1993 by "humanitarian" claims based on the fact that her children were born in Australia, which her solicitors acknowledged were outside the scope of the Minister guidelines. These "humanitarian" claims were pursued with the refugee claim until the Minister's senior adviser notified Miss Morrell by
letter dated 13 January 1995 that her case had not been referred to the Minister. The route chosen by Miss Morrell was quite inappropriate. It was designed for an individual facing a significant threat to personal security on return to her country of origin. These are quite different considerations to those arising under subpar 131A(1)(d)(v) of the Migration (1989) Regulations.
This matter has a complex procedural history. In the middle of 1994 Miss Morrell and another child born in December 1993 were detained and kept in custody. The proceeding was irregularly commenced with all three of her children as applicants. Relief was also sought not only in respect of the delegate's decision of 16 June 1992, but also the detention decision and the "decision" of the Minister's senior adviser of 13 January 1995. At one stage these four applicants purported by statement of claim to sue for false imprisonment and negligence. These claims were also made without the leave of the Court against a person who had not been named in the originating process.
Leave was given at the hearing on 6 May 1995 to file an amended application, which sought an order of review in respect of the delegate's decision of 16 June 1992 in Part A and the detention decision of 22 June 1994 in Part B. The nature of the proceeding having been clarified, orders were made removing unnecessary parties, including the infant applicants. Miss Morrell then sought leave to discontinue the claim in Part B of her application. The respondents opposed that course, arguing that the claim should be dismissed. I accept that submission. The appropriate order is that the application be dismissed. The respondents do not seek costs in respect of the claim in Part B of the amended application. The costs of
Miss Morrell's motion for extension of time are, of course, the respondent's costs of the claim in Part A of the amended application.
I certify that this and the preceding 5 pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam
Associate:
Date: 10 May 1996
Counsel for the applicant: Lucy McCallum
Solicitors for the applicant: Barlow & Co
Counsel for the respondent: R.T. Beech-Jones
Solicitor for the respondent: Australian Government Solicitor
Dates of hearing: 6 and 7 May 1996
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