Mashood v Commonwealth of Australia [2003] FCA 1147

FEDERAL COURT OF AUSTRALIA

Mashood v Commonwealth of Australia [2003] FCA 1147 MIGRATION – application by children born in Australia but not entitled to citizenship by virtue of s 10(2) Australian Citizenship Act 1948 (Cth) – expiration of visas of one child and her parents and pending expiry of visa of second child – challenge by unrelated party to the validity of s 10(2) Australian Citizenship Act 1948 (Cth) currently before the High Court – application for interlocutory relief on behalf of the children pending determination of matter before the High Court – whether serious issue to be tried evidenced by existing legal challenge – whether denial of liberty constitutes irreparable injury – application for interlocutory relief on behalf of the children's parents – no rights or entitlements would accrue to the parents as non‑citizens within Australia if children were found to be Australian citizens – whether Court can grant interlocutory relief to restrain detention and deportation of parents pursuant to the Migration Act 1958 (Cth) – consideration of Court's parens patriae jurisdiction. Migration Act 1958 (Cth): ss 189, 198 Australian Citizenship Act 1948 (Cth): s 10(2) Federal Court of Australia Act 1976 (Cth): s 23 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, applied Re Minister for Immigration and Multicultural Affairs; Ex parteTe(2002)193ALR37,referredto Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420, applied Richardson v Forestry Commission (1998) 164 CLR 261, referred to Jackson v Sterling Industries Ltd (1987) 162 CLR 612, applied Peniche v Vanstone (1999) 96 FCR 38, referred to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, applied Tupou v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 225, considered Nevsky v Scott [2002] FamCA 860, considered Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, considered Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218, referred to Wellesley v Wellesley [1828] 4 ER 1078, referred to MinisterforImmigrationandMulticultural Affairs vW157/00A[2002]FCAFC 281,referredto Tait v R (1962) 108 CLR 620, applied FATHIMA SHANEEZA MASHOOD and SHAN IFTHIKAR MASHOOD (Infants by their next friend GALAGAWA VIDANALAGE GEDARA IFTHIKAR AHMED MASHOOD) v COMMONWEALTH OF AUSTRALIA and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 903 of 2003 GOLDBERG J 21 OCTOBER 2003 MELBOURNE