FEDERAL COURT OF AUSTRALIA Vaiangina v Commonwealth of Australia [2004] FCA 751 VAISIOA VAIANGINA AND INUKAVA VAIANGINA v COMMONWEALTH OF AUSTRALIA AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N397 of 2004 JACOBSON J 1 JUNE 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N397 of 2004 BETWEEN: VAISIOA VAIANGINA AND INUKAVA VAIANGINA APPLICANT AND: COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: JACOBSON DATE OF ORDER: 1 JUNE 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: (1) The second respondent, whether by herself, her servants or her agents, be restrained pending the determination of this proceeding or further order from causing, directing or permitting the applicants to be taken into immigration detention pursuant to s 189 of the Migration Act 1958 (Cth). (2) Order (1) be subject to the following conditions: a. the applicants reside with Joanne Vaiangina at 11 Shears Way, Minto New South Wales; b. that Joanne Lavinia Vaiangina notify the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) within 24 hours of any change of address and contact details for the applicants. c. that the applicants report by telephone once per week to DIMIA, the details of such reporting to be provided by the solicitors for the respondents to the solicitors for the applicants or as otherwise agreed between the parties. (3) The parties have liberty to apply on 24 hours notice. (4) The costs of and incidental to the Notice of Motion be costs in the cause. 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 N397 of 2004 BETWEEN: VAISIOA VAIANGINA AND INUKAVA VAIANGINA APPLICANT AND: COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: JACOBSON J DATE: 1 JUNE 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I have before me an application for interlocutory injunctive relief by two infants, a girl and a boy aged 4 and 2 respectively. The children were born in Australia but their parents, who are citizens of Tonga, are unlawful non citizens who are in immigration detention under s 189 of the Migration Act 1953 (Cth) ("The Act"). The parents are liable to be deported at any time under s 198 of the Act. 2 The applicants move by their next friend, who is their mother, for interlocutory injunctions restraining the second respondent from detaining the children under s 189 of the Act and from removing them from Australia under s 198. 3 The second respondent has given an undertaking inter partes that it will not remove the children from Australia until the High Court hands down its decision in Plaintiff S441 of 2003 v the Commonwealth ("Singh"). The High Court heard argument on a stated case in Singh in February 2004 and judgment has been reserved. 4 However, the respondents have given no undertaking in respect of the detention of the children and they oppose interlocutory relief. 5 It is conceded by the respondents that there is a serious question to be tried. The question is not, as put by the applicants, namely whether s 10 of the Australian Citizenship Act 1958 (Cth) is ultra vires the Constitution to the extent that it purports to deny citizenship to Australian born children of non citizens where the children have not attained the age of ten. 6 Rather, the serious questions are, as was submitted by Mr Wigney, who appeared for the respondents, as follows: (1) Are the applicants aliens within the meaning of s 51(19) of the Constitution? (2) If the answer to (1) is "no", is s 198 of the Act capable of valid application to the applicants? 7 The respondents concede that the applicants are in a similar position to the plaintiff in Singh. Thus, if the plaintiff in Singh is held not to be an alien and if s 198 is held not to apply to her, it will follow that s 198 will not be capable of applying to the applicants. The fact that the High Court has reserved its judgment in Singh is sufficient to give rise to a serious question on the present application. This application, therefore, falls to be considered on the question of balance of convenience. 8 I will set out the evidence in some detail. 9 The effect of it is that the children are presently in the care of an aunt by marriage. She lives with her husband and four of her own children as well as, since 19 May 2004, with the applicants and an older sister. 10 The aunt, Mrs Vaiangina, has sworn an affidavit deposing to her ability and willingness to care for the children. She was cross-examined on the affidavit and I will refer to her evidence in more detail below. 11 There was also evidence from the children's mother as to the less than ideal living conditions which exist in Villawood. She was not cross-examined on her affidavit evidence and no evidence was called by the respondents to rebut the mother's evidence. Moreover, since this application is made by the mother as next friend, it necessarily follows that she considers that the best int erests of the children lie with the care of Mrs Vaiangina rather than by placing them in detention at Villawood with their parents. 12 There was also evidence of a psychiatrist, Mr M.J. Dudley, as to the adverse effects of detention on children. However, the evidence was in general terms and I did not find it of any assistance. No reference was made to the conditions which exist at Villawood, nor did the affidavit state the time at which Mr Dudley made the observations to which he deposes in his affidavit. 13 Mrs Vaiangina's affidavit evidence was that the two children and the older sister had been living with Mr and Mrs Vaiangina since 19 May 2004. They live in a four bedroom house with, as I have already said, four of Mr and Mrs Vaiangina's own children. 14 Mrs Vaiangina said that she is happy to provide a home for the children while the mother is in detention. She understands this may be for many months. Her husband is also happy for this to occur. 15 Mrs Vaiangina's affidavit states that she and her husband have the financial capacity to care for the children. Mr Vaiangina is a glass cutter who works full time on shift work. Mrs Vaiangina works on a casual basis as a traffic controller. She said in her affidavit that she usually works three days a week. Her oldest son, who is 20, works full time and he contributes board to the family. 16 Mrs Vaiangina also deposed in her affidavit that she and the other members of the family are able to provide adequate supervision for the children. She said that she was able to adjust her working hours so that there was "almost" always an adult available to look after the children. Her son is 20 years old and she has three daughters aged 13, 12 and 9 respectively. 17 Mrs Vaiangina also said in her affidavit that the children play at home with her children's toys and they draw and that they watch television and DVDs under supervision. She said that she proposes to take them on occasional outings including outings to Villawood to see their parents. 18 Under cross-examination Mrs Vaiangina conceded that she had no real relationship with the children prior to commencing care of them. However, she did say that she was present at the birth of the older of the two children and that she had seen them on one or two occasions prior to the date on which they commenced in care with her. As I think I have said earlier that date was 19 May 2004. 19 Mrs Vaiangina conceded that the children require constant care and supervision by an adult. She said that they are not yet enrolled in pre-school but she is willing to do that. She said in cross-examination that her husband usually works from 7 am to 3 pm and he does some overtime but only for a couple of hours per week. 20 Mrs Vaiangina referred, in cross-examination, to her son's work. He works full time but she also said under cross-examination that although she has some flexibility as to the hours of her own work she does not have complete freedom. She said that she was however prepared to sacrifice her job for the sake of the children. She stated under cross-examination that her youngest child is only eight years old and that she has not had any problem looking after the two children the subject of this application. She said that she was willing to give up her job if necessary but she has not yet done this. 21 Mr Wigney cross-examined Mrs Vaiangina about occasions on which it has been necessary for the children to be supervised by someone else. Mrs Vaiangina said that she has been able to arrange for another member of her family, usually her sister, to look after the children. She said in cross-examination that she has always been able to arrange adult supervision. She was cross-examined about the difference between that evidence and her statement in her affidavit that she had almost always been able to have adult supervision available. She insisted that she never leaves the children without the supervision of an adult. In any event she said that it was only on a very few occasions that it had been necessary for her to arrange for someone else to supervise the children because she has only worked twice since the children were put in her care on 19 May 2004. 22 Mr Wigney in cross-examination put to Mrs Vaiangina that if she was to give up her job that would place financial pressure on the family. Mrs Vaiangina conceded that it would put some pressure on the family but she said that she would be able to cope even with the wages earned by her husband and the board contributed by her son. She said she was prepared to do whatever was necessary to be done to look after the children including making the necessary sacrifices if in fact she does have to resign from work. 23 I accept Mrs Vaiangina's evidence. She seemed to me to be doing her best to assist the court. She fairly made concessions under cross-examination and I was impressed by the fact that she is prepared to make the sacrifice to her living space and financial position in order to care for the children on an interim basis. 24 The children's mother gave hearsay evidence of a conversation with a staff member at Villawood to the effect that if the children go to Villawood the responsible authorities would try to allocate a family room but this could not be guaranteed and the family may have to be split up. The children's mother also gave evidence of the dirty conditions which exist at Villawood. 25 The children's mother also gave evidence that, although schooling can be arranged for children in detention at Villawood who have been there for more than six months, the schooling will not be available to the children because they are too young to be provided with schooling facilities. The children's mother also gave evidence that there are crowded conditions available to residents if they try to watch the one television set which is available for several hundred people. 26 As I have said, there was no evidence led by the respondents to rebut the evidence given by the children's mother. Even though the evidence about the possible unavailability of a single family unit was hearsay, I admitted it as this is an interlocutory application and it would have been open to the respondents to lead evidence that there was in fact some family accommodation available for the children to be able to reside with their parents. 27 The issue which I have to consider has been dealt with by three judges of the court, Goldberg J, Gyles J and Tamberlin J. 28 In Mashood v The Commonwealth of Australia [2003] FCA 1147 Goldberg J considered an application by two young children aged eight and two. Their parents were citizens of Sri Lanka whose bridging visas were about to expire. 29 The respondents in Mashood did not contest that there was a serious question to be tried. Goldberg J considered that the children would suffer irreparable injury if they were placed in detention. His Honour also considered that the balance of convenience favoured the grant of interlocutory relief. 30 Goldberg J said at [21]: Loss or deprivation of liberty, even for a short time, is a matter of irreparable harm. The right to enjoy personal liberty is "the most elementary and important of all common law rights": Trobridge v Hardy(1955) 94 CLR 147 at 152 per Fullagar J. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 Brennan J said at 523, "The law of this country is very jealous of any infringement of personal liberty…" Liberty is a precious and valued right. Much blood has been shed in defence of liberty. In Preston v Minister for Immigration & Multicultural & Indigenous Affiars [2003] FCA 420, French said at [27]: "Liberty lost is never recoverable even if partially compensable by damages." I adopt with respect his Honour's observation, although I am inclined to doubt the proposition that liberty lost can be compensated, even partially, by the award of a monetary sum. 31 In Akomeah v The Commonwealth of Australia [2003] FCA 1476 Gyles J dealt with an application for interlocutory injunctive relief. His Honour pointed out at [6] that it was not accepted by the Minister that the exercise of discretion was governed by the decision in Mashood. His Honour noted that there was no consideration by Goldberg J of the consequences of granting an injunction in relation to a young child where the parents would be liable to be removed from Australia in the very near future. His Honour also noted at [6] that there was no evidence before him as to how the applicant would be cared for upon the departure of the parents from Australia. 32 His Honour said at [7] that he appreciated the force of the reasoning of Goldberg J in Mashood. However, his Honour went on at [7] to say: The arguments for the Minister are very troubling. The effect of the injunction, if granted, would be to virtually compel the separation of a three year child from her father, mother and brother after their bridging visas expire, with no relative living in Australia and with no evidence of any arrangements made or to be made for the case of the child in those circumstances. 33 Gyles J observed at [8] that there was no certainty as to when the parents might be removed from Australia and the problem of arrangements for the care of the children did not have to be faced until that point of time. This was a suggestion that was made in argument and his Honour accepted that there was substance in the submission. 34 Gyles J granted limited injunctive relief restraining the removal of the child from Australia and restraining the child from being taken into immigration detention unless two days prior notice was given. 35 In Xai v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 421 Tamberlin J granted a mandatory interlocutory injunction for the release from immigration detention of three children. His Honour imposed conditions on the release and it seems to me that conditions of that type are appropriate where an order such as is proposed in the present case is made. 36 In the application before Tamberlin J the Minister submitted that it may be appropriate to get evidence in relation to the best interests of the children from an expert or outside source before young children were separated from their mother by the removal from immigration detention. His Honour said at [3] that in those circumstances his Honour thought that the appropriate course would be to make an order for the conditional release of the children. 37 It seems to me, as it did to Gyles J, that there is force in what Goldberg J said in Mashood. However, the effect of what Gyles J said is that each case must turn on its own facts, no doubt with due weight being given to the effect of the possible loss of an applicant's liberty. 38 Here I do have evidence of the children's caring arrangements and I also have actual evidence, albeit limited, of the conditions at Villawood Detention Centre. It seems to me that what I have to do is to balance against the possible adverse effects of the inadequate living conditions at Villawood, the evidence as to the caring arrangements, with whatever deficiencies exist in the arrangements made by Mrs Vaiangina, in order to decide where the balance of convenience lies. 39 I have come to the view that, although there will be some real difficulties in the arrangements which have been put in place with Mrs Vaiangina, especially the pressures on the family's financial circumstances and the possible difficulties in relation to ensuring constant adult supervision, the benefits of living in a family environment with relatives who are prepared to make sacrifices for the children outweigh the poor conditions disclosed by the evidence with respect to the situation at Villawood. 40 I have taken into account the apparent wishes of the children's mother. I have also taken into account the issue which troubled Gyles J, namely, the separation of the children from their parents. However, on the evidence before me I accept that to the extent it is necessary for me to so find the best interests of the children lie with the maintenance of the status quo, even though that position has only been in force for several weeks. 41 It is true that the children had no relationship with Mrs Vaiangina prior to 19 May 2004 but I think the sort of family relationship which Mrs Vaiangina described and her willingness to make sacrifices outweighs the lack of a prior relationship. 42 Mr Wigney submitted that in order to grant injunctive relief I would need to be satisfied that there are proper caring arrangements in place both now and for the period during which the children are likely to be in Mrs Vaiangina's care. The effect of what I have said is that I am satisfied that there are, and will be for that period. 43 Mr Wigney submitted that I should be concerned about the nature of the care that can be afforded. Whilst, as I have said, there may be some difficulties in that regard, I find that it is adequate for present purposes. I note that Mr Wigney, very fairly, did not criticise Mrs Vaiangina, nor did he question her intentions. 44 Mr Wigney also submitted that the evidence before me as to the caring arrangements is quite limited and he said that I should not grant adjunctive relief in the absence of independent expert professional assessment of the children. I accept that the evidence is limited but the question is one of fact for me and it is not necessary in this case for me to have reference to evidence of the kind suggested. In any event, I propose to impose conditions on the injunctive relief of the kind ordered by Tamberlin J in Xai. This should ensure that if there are any relevant changed circumstances the Minister will be informed so that the matter can be further considered. 45 Mr Levet of counsel for the applicants sought to argue that there was a further issue relevant to the consideration of balance of convenience. He submitted that the respondents had attempted to "bludgeon" the family into submission by imposing conditions on the mothers release from detention which were said to be inconsistent with the applicant's status as "Australian nationals". However, it is unnecessary to decide this submission, for several reasons. 46 Firstly, I do not see how it is relevant to the question of balance of convenience. Secondly, it was not raised until closing address. Mr Wigney told me that if it had been raised as an issue at the outset he would have led evidence on the issue and he would have cross-examined the children's mother. Thus, I do not have all the evidence before me on the question and cannot decide it even if it is in some way relevant to the exercise of my discretion on balance of convenience grounds. Thirdly, as Mr Wigney pointed out, the complaint is made at least in part by the mother, who is not a party to the proceedings. 47 In these circumstances I propose to order that the second respondent, whether by herself, her servants or her agents, be restrained pending the determination of this proceeding or further order from causing, directing or permitting the applicants to be taken into immigration detention pursuant to s 189 of the Migration Act. 48 I do not propose to say anything further in my judgment about the conditions. As I have already said, these should be in accordance with the conditions referred to by Tamberlin J in the matter of Xai and I will ask counsel to agree some short minutes and submit them to me so that I can make the necessary orders. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 1 June 2004 Counsel for the Applicant: B Levet Solicitor for the Applicant: Bharati Solicitors Counsel for the Respondent: M Wigney Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 June 2004 Date of Judgment: 1 June 2004