NAMG v Minister for Immigration

[2003] FMCA 541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMG & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 541

PRACTICE AND PROCEDURE – MIGRATION – Jurisdiction of the Court to review a primary decision under the Migration Act 1958 (Cth) – need to resolve parenting issues under the Family Law Act 1975 (Cth) – possibility of concurrent proceedings under the Migration Act and the Family Law Act.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.476

Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24

First Applicant:

Second Applicant:
Third Applicant:

NAMG

NAMH
NAMI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1199 of 2003

Delivered on: 20 November 2003

Delivered at: Sydney

Hearing date: 20 November 2003

Judgment of: Driver FM

REPRESENTATION

The first applicant appeared in person and for the third applicant

No appearance by the second applicant

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

THE COURT DIRECTS THAT:

1. The hearing is adjourned to a date to be advised administratively.

THE COURT ORDERS THAT:

1. For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), NAMG is appointed as litigation guardian of NAMI, and NAMG is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of her appointment.

2. Applicant NAMG has liberty to apply within 28 days under the Migration Act 1958 (Cth) or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for relief in respect of the decision of the delegate made on 30 August 2001 in relation to her second child identified in the decision of the Refugee Review Tribunal made on 24 July 2002.

3. Such application, if made, will be heard concurrently with the present application.

4. Applicant NAMG has liberty to apply within 28 days for parenting orders under the Family Law Act 1975 (Cth) in relation to both children.

5. Such application, if made, should be directed to the Parramatta Registry of this Court with a copy of these orders.  Such application, if made, shall be referred to Federal Magistrate Driver for appropriate directions.

6. Costs of today’s hearing are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1199 of 2003

NAMG, NAMH, NAMI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The application I have before me is to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 July 2002 and 13 August 2002 in relation to three applicants who were refused protection visas.  There is a father, a mother and one child from Peru.  Since the protection visa application was made, a second child had been born.

2. A separate protection visa application was made by the mother on 14 August 2001 to the Immigration Department.  That application was refused on 30 August 2001.  The RRT, in its reasons, (court book, pages 271-272) decided that it had no jurisdiction in relation to the protection visa application for the second child because the child was born after the original protection visa application was made and because no application had been made to the RRT to review the decision of the delegate made separately on 30 August, 2001 in relation to that child.  Given the time limits that apply in relation to applications to the RRT, I assume that no application could now be made to the RRT.

3. In these circumstances, in my view, it would be preferable for the Court to deal with all issues between the applicants and the Minister in relation to both children as well the adults. Section 476 (1) of the Migration Act1958 (Cth) (“the Migration Act”) provides that the Court has no jurisdiction in relation to a primary decision. Section 476(6) provides that in that section, a primary decision means a privative clause decision, relevantly, that is reviewable or would have been reviewable if a timely application had been made by the RRT.

4. Having regard to the decision of the High Court of Australia in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24, it is apparent to me that the Court does have jurisdiction in order to determine whether the primary decision made in respect of the second child is, or is not, a privative clause decision. Mr Bromwich has submitted, and I accept, that if the protection visa application of the mother is rejected on its merits, as it has been, any protection visa application made separately on behalf of a child who makes no separate claims, must necessarily fail.

5. Nevertheless, without seeing the decision of the delegate, I cannot determine whether the application by the second child was entirely dependant upon the application of the mother, or whether the decision of the delegate is infected by any jurisdictional error.  I do not rule out the possibility that a review by me of the decisions made in respect of all four members of the family may lead to an outcome favourable to one or more of them.

6. In addition, a review of the decisions made in respect of all four members of the family may lead to an outcome that I could make useful recommendations to the Minister in relation to a power under s.417 of the Migration Act, noting of course that I have no jurisdiction in order to compel or review the exercise of such power.

7. The other matter of concern to me is that I was told at the outset of proceedings that the first applicant, NAMG, has now separated from the second applicant, NAMH, who is the father of the two children.  At present, the children are under the care of the mother.  However, whether that is in the best interests of the children I do not know.  The father is a citizen of the United States.  The mother is a citizen of Peru.  One of the two children is also a citizen of the United States.  I do not know the citizenship status of the second child, although it appears that at the moment he is not a citizen of Australia.  There may well be a question requiring resolution under the Family Law Act 1975 (Cth) (“the Family Law Act”) of what the future of these children should be.

8. In the circumstances, in my view, it is desirable for the Court to invite the invocation of its jurisdiction under the Family Law Act to make appropriate orders in relation to these children. I do not rule out the possibility that the Minister may at some stage need to be joined as a party to any proceedings under the Family Law Act. Some complex issues may arise in relation to the inter-relationship of this Court's migration jurisdiction and its family law jurisdiction.

9. My present intention would be if proceedings are filed under the Family Law Act, to hear those concurrently with proceedings under the Migration Act. These are issues about which the mother would be wise to obtain legal advice. I have appointed her as litigation guardian of her older child who is presently a party to the proceedings before the Court. If proceedings are brought before the Court under the Migration Act in relation to the second child, that child would also need to have a litigation guardian.

10. In the second application, the father was not present in court today.  It is desirable that I hear from him, both in relation to the migration proceedings and in relation to any family law proceedings.

11. Mr. Bromwich has made clear that he opposes on behalf of the Minister the orders which I have made. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  26 November 2003