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Federal Court of Australia |
Last Updated: 12 September 2001
Lewai v Minister for Immigration & Multicultural Affairs [2001] FCA 1309
Migration Act 1958 (Cth) s 198(5), (6), 195(1), (2), 482(2), (3), 189
Federal Court of Australia Act 1976 (Cth) s 23
Acts Interpretation Act s 15AA
Talk of the Town Pty Ltd v Hagstrom (1990) 99 ALR 130 cited
Karaguleski v Vasil Bros & Co Pty Ltd (1981) 1 NSWLR 267 cited
Madafferi v Minister for Immigration & Multicultural Affairs [2001] FCA 250; (2001) 106 FCR 76 considered
Kopiev v Minister for Immigration & Multicultural Affairs [2000] FCA 1831 referred to
Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872 referred to
Bolea v Minister for Immigration & Multicultural Affairs [2001] FCA 1129 referred to
Arkan v Minister for Immigration & Multicultural Affairs [2000] FCA 1134 referred to
Crock, Immigration & Refugee Law in Australia (1998)
TIMOCI LEWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1214 OF 2001
TIMOCI LEWAI v GRANT DAVIDSON AND WENDY GREEN
N 1301 OF 2001
HELY J
12 SEPTEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. The application for interlocutory relief be refused.
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 |
JUDGE: |
HELY J |
DATE: |
12 SEPTEMBER 2001 |
PLACE: |
SYDNEY |
1 The applicant is a Fijian who entered Australia on 9 April 1994 on a visitor's visa. He has remained in Australia ever since. In the intervening years the applicant has made a number of applications for visas of various kinds, and from time to time he has been granted bridging visas for various periods.
2 It is sufficient for present purposes to record that on 24 July 1997, or on 22 August 1997 (it is not clear which, but it does not matter which), the applicant lodged an application to remain permanently in Australia with the Department of Immigration & Multicultural Affairs ("DIMA"), which application was refused on 5 March 1999. On 17 August 1999 the Migration Review Tribunal ("MRT") declined to accept an application for the review of that decision on the grounds that the application for review was lodged out of time. That was the last occasion on which the applicant applied for a substantive visa.
3 In January 2000 the younger child of the applicant was born in Australia. In January 2001 the older child of the applicant arrived in Australia on a visitor's visa. At about that time the children applied for protection visas which were refused by the Minister's delegate. On 22 February 2001 an application was made to the Refugee Review Tribunal ("RRT") on behalf of the children for review of the delegate's decision. That application has not yet been determined by RRT.
4 In about April 2001 the applicant became an unlawful non-citizen when a bridging visa earlier granted to him expired. On 10 July 2001 the applicant was located by DIMA and taken into custody. He remains in immigration detention.
5 On 25 July 2001 the applicant applied for a Bridging Visa E which application was refused by the Minister's delegate on 27 July 2001. On 8 August 2001 MRT affirmed the delegate's decision that the applicant was not entitled to the grant of a Bridging Visa E.
6 On 17 August 2001 the applicant lodged an application for an order of review of that decision with this Court. The grounds of the application were simply described as: "refer to submission". The reference to "submission" is a reference to a document which the applicant lodged with the Court on 17 August 2001. It is sufficient for present purposes to state that this document does not invoke any of the grounds of review for which s 476 of the Migration Act 1958 (Cth) ("the Act") makes provision.
7 The matter came before a registrar of the Court for directions on 30 August 2001. On that occasion the respondent indicated that there was a possibility that the applicant might be removed from Australia before the substantive hearing, although directions were then given with a view to the matter proceeding for hearing on 22 November 2001.
8 By facsimile dated 31 August 2001 the applicant wrote to my associate requesting that the matter be relisted before the Court because:
"I wish to be granted a removal stay certificate as it has been indicated to me by DIMA officials that they may remove me at any time prior to the hearing date."
9 The matter was listed for directions on 6 September 2001. The applicant appeared for himself on that occasion. He told me that he was first notified that he would be removed from Australia on 5 September 2001, and the first he knew that the matter had been listed before me was when information to that effect was given to him by a DIMA official when he woke up on the morning of 6 September 2001. He told me that he had not had the opportunity of consulting his legal advisers, nor was he prepared to present argument as to why he should not be removed from Australia. On the other hand, the solicitors for the Minister had prepared a carefully reasoned document, with references to authority, as to why the stay application for interlocutory relief should be dismissed. I thought that it was unfair to expect the applicant to be in a position to respond to that material, hence I adjourned the proceedings until 7 September 2001, and granted an injunction restraining the Minister from removing the applicant from Australia in the meantime. It is not seriously in dispute, and in any event it emerges from the removal checklist Exhibit 1, that it is proposed to remove the applicant from Australia, in reliance upon s 198(6) of the Act.
10 When the matter came on for hearing at 10.15 am on 7 September 2001, Mr Zipser appeared for the applicant. He informed me that the applicant seeks to remain in Australia until a determination by RRT of the applications for review of the decision to refuse protection visas to his two children. The applicant seeks to remain in Australia because:
- the children require the applicant's financial support while they remain in Australia. The children will also suffer emotional hardship if the applicant is removed from Australia;
- if the children are entitled to a protection visa, the applicant may be able to apply for a visa on the basis that his children are entitled to remain in Australia. The only basis for that possibility put forward by Mr Zipser was the provisions of s 417 of the Act.
11 Mr Zipser submitted that there were three grounds on which the applicant was entitled to remain in Australia until these matters are resolved. He described the grounds as being:
- the "reasonably practicable" issue;
- the "absence of power" issue; and
- the "acceptable arrangements" issue.
12 The first two of those grounds challenge the propriety of the applicant's removal from Australia pursuant to s 198 of the Act. That is not a matter which is within the scope of the application for an order of review lodged on 17 August 2001. Further, it is a departmental officer, rather than the Minister, who is threatening to remove the applicant from Australia pursuant to s 198 of the Act. Nonetheless, I heard submissions in support of a claim for interlocutory relief to restrain the threatened removal of the applicant upon the basis that appropriate proceedings invoking the jurisdiction of the Court under s 39B of the Judiciary Act would be filed and served by 11 September 2001, returnable on 12 September 2001. That application became N 1301/2001. The respondents to that application are the DIMA officers who signed the removal check list, Exhibit 1.
"Reasonably practicable" issue
13 The applicant is not an Australian citizen. He does not hold a valid visa. He is therefore an unlawful non-citizen: Act ss 13 and 14. As such, DIMA officers were obliged to detain him: s 189, and to remove him from Australia in the circumstances referred to in s 198. If any of those circumstances is enlivened an "officer" (including a DIMA officer) is obliged to remove the applicant "as soon as reasonably practicable". The applicant contends that the officer intending to remove the applicant is required to take into account, before doing so, the interests of the applicant and his children, and that the officer may not have taken those interests into account. In the applicant's submission, the s 198 power is to remove a unlawful non-citizen "as soon as reasonably practicable", but not before, and whether it is "reasonably practicable" to remove the applicant having regard to the claims of his children is amenable to review in the Federal Court under s 39B of the Judiciary Act.
14 Section 198 imposes an obligation on a DIMA officer to remove the applicant as an unlawful non-citizen if the conditions of the section are otherwise satisfied. The section does not confer a discretionary power on an officer which is reviewable on general administrative law grounds. Removal from Australia is by force of law, rather than as the result of an administrative decision. The obligation is to remove the applicant as soon as reasonably practicable. If flights and travel documents are available then it is reasonably practicable for the applicant to be removed. It is not impracticable to remove the applicant simply because his wife and children may be left behind. Section 199 deals specifically with the position of dependents of removed non-citizens in such a way as suggests that the fact that the applicant has dependents in Australia is not an impediment to the removal of the applicant.
"Absence of power" issue
15 Sections 198(5) and (6) of the Act provide as follows:
"(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:(a) is a detainee; and
(b) was entitled to apply for a visa in accordance with section 195 but did not do so.
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone."
16 Section 195 of the Act provides as follows:
"Detainee may apply for visa(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply - within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time."
17 The applicant submits that there is a lacuna in these provisions inasmuch as s 198(5) deals with the situation in which the applicant does not apply for a substantive visa or a bridging visa, whereas s 198(6) deals only with the position of an unsuccessful applicant for a substantive visa. In other words, according to the applicant's submissions, neither s 198(5) nor s 198(6), nor any other provision of s 198, deals with the position of a detainee who applies for a bridging visa after his detention, but is unsuccessful in that application.
18 The applicant's submission assumes that s 198(5) and (6) have a sequential operation such that s 198(6) only applies to applications made by an unlawful non-citizen for a substantive visa whilst that non-citizen is a detainee.
19 Acceptance of that submission would have the result that there is simply no mechanism for removal from Australia of an unlawful non-citizen who applied for but failed to obtain a substantive visa to remain in Australia, and who unsuccessfully applied for a bridging visa after his detention. Such a person would be condemned to a state of indefinite detention: s 196(1), even though the mandatory removal process was intended to operate as an (automatic) end stage of the immigration process: Crock, Immigration & Refugee Law in Australia, (1998) p 219.
20 I do not know whether the applicant failed to apply for a visa under s 195, so as to enliven the duty of removal under s 198(5). That question may not be without its own difficulties. It is not established whether or not the application for the Bridging Visa E was made within the time frame permitted by s 195(1) [as whether s 194 was complied with, and if so when, does not appear from the evidence]. There may be a question as to whether if the bridging visa was applied for pursuant to the exception to the prohibition contained in s 195(2), s 198(5)(b) is nonetheless satisfied.
21 The respondents have not relied upon s 198(5), hence it is neither necessary nor appropriate to pursue these questions.
22 The Minister relies on s 198(6). Paragraph (a) is clearly satisfied. So far as pars (b) and (c) are concerned the Minister relies on the making of the application for permanent residence in 1997 and the final determination of that application when MRT declined to review the decision refusing that application in August 1999 (see par 2 above). Paragraph (d) is clearly satisfied.
23 The only answer which the applicant makes to the Minister's contention in this regard is that s 198(6) should be limited by implication to an application for a substantive visa made after the detention of the non-citizen. Clearly, s 198(6) extends to that situation, but why should it be confined to it absent some language or context which requires that result? The various sections in s 198 provide for removal of unlawful non-citizens in various sets of circumstances. There is no reason to assume that s 198(5) and (6) of the Act were only intended to have a sequential operation, particularly as s 198(6) is not expressed as applying where the non-citizen exercised an entitlement to apply for a visa in accordance with s 195. Section 198(6) is perfectly general in its application; s 198(6)(a) is expressed in the present tense, and s 198(6)(b) is enlivened if the non-citizen "made" an application which, as a matter of ordinary English, encompasses an application made prior to detention.
24 If a detainee exercised an entitlement to apply for a substantive visa in accordance with s 195, then s 198(5) would not apply to that detainee, nor would s 198(6) until the application was finally determined. But if the immigration process has otherwise come to an end, inasmuch as the detainee is an unlawful non-citizen who has been refused a substantive visa and has no other valid applications for a substantive visa outstanding then there is no legitimate reason for confining s 198(6) by implication so as not to apply in those circumstances.
25 That is particularly so when to confine s 198(6) in that way would produce an obvious gap in the legislation, the consequence of which would be that an unlawful non-citizen who has failed to gain a right to remain in Australia after unsuccessfully seeking a substantive visa would be condemned to a state of potentially perpetual detention.
26 It would not be consistent with s 15AA of the Acts Interpretation Act to construe the Act in that way. It is open to a Court, in an appropriate case, to decide questions of construction even though the proceedings are interlocutory: Talk of the Town Pty Ltd v Hagstrom (1990) 99 ALR 130; Karaguleski v Vasil Bros & Co Pty Ltd (1981) 1 NSWLR 267. This is such a case. The applicant has not made out a case for relief on this ground.
The "acceptable arrangements" issue
27 The applicant seeks an order restraining the Minister from removing the applicant from Australia until the determination of the application for review lodged with the Court on 17 August 2001.
28 The applicant contends that the Court is empowered by s 482(2) and (3) of the Act to make an order in the terms sought for the purpose of securing the effectiveness of the hearing and determination of the "appeal". Alternatively reliance is placed on s 23 of the Federal Court of Australia Act 1976 (Cth) ("FCA"), but the applicant accepts that the decision of the Full Court in Madafferi v Minister for Immigration & Multicultural Affairs [2001] FCA 250; (2001) 106 FCR 76 is an obstacle in the path of resort to s 23 of FCA.
29 The decision under review is a decision of MRT affirming the decision of the Minister's delegate that the applicant is not entitled to the grant of a Bridging Visa E. Under s 482(3) the Court may make an order staying, or otherwise affecting the operation or implementation of that decision. An order staying the decision is of no use to the applicant, as he would continue to be liable to removal from Australia even though MRT's decision was stayed.
30 The applicant submits that had MRT made a favourable decision, the applicant could not have been removed from Australia, hence an order restraining the Minister from removing the applicant from Australia is an order which affects the operation of that decision. However, the applicant was liable to removal from Australia both before and after MRT's decision. His liability to removal is not a consequence of that decision. That liability flows from the fact that the applicant is and has been since April 2000 a non-citizen within the migration zone without a visa. The Court has no power to grant the applicant a visa.
31 A power to make an order "affecting the operation or implementation" of the decision does not extend to restraining the removal of the applicant from Australia when the Minister and/or the relevant DIMA officer was entitled, if not bound, to remove the applicant from Australia unless his status as an unlawful non-citizen was changed as a result of a favourable MRT decision.
32 Accordingly, the Court does not have jurisdiction flowing from ss 482(2) and (3) of the Act to make the orders sought.
33 Section 23 of FCA confers a power on the Court to make such interlocutory orders as it considers appropriate in relation to matters otherwise within its jurisdiction, hence s 485(1) of the Act has nothing to say about the availability of the s 23 power. The question is whether the decision of the Full Court in Madafferi v Minister for Immigration & Multicultural Affairs denies the availability of the s 23 power in circumstances such as the present.
34 In Madafferi v Minister for Immigration & Multicultural Affairs the Full Court held:
(i) if there was a threat to remove the applicant prior to the determination of the substantive proceedings, that may be a basis for attracting s 482 (at [18]);
(ii) s 482(2) of the Act delimits the power of the Court to intervene on an interlocutory basis (at [16]);
(iii) for the purposes of s 482 it is not a relevant question whether there is a serious question to be tried (at [27]).
35 As to the first of those matters, the consequence of the decision there under review was that the applicant became an unlawful non-citizen again (see [17]). Presumably the applicant was the holder of a bridging visa which came to an end in consequence of that decision. Madafferi v Minister for Immigration & Multicultural Affairs does not deal with the reach of s 482 in circumstances such as the present.
36 As to the second of those matters, when account is taken of the context, it is by no means clear that the Full Court held that s 482 of the Act delimits the power of the Court to grant interlocutory relief to the exclusion of s 23 of FCA. The point which the Court made at par [16] is that it is s 482(2) of the Act, rather than s 482(1)(d), which is the source of the power to grant interlocutory relief. The discussion at par [12] suggests that the Court did not intend to exclude the availability of s 23 of FCA in an appropriate case.
37 On the view I take of the construction of s 482(3), the third of those matters does not arise in the circumstances of the present case. However, the application, even when read in conjunction with the submission, does not disclose any available ground for review of MRT's decision. Mr Zipster's submissions assert that MRT failed to take into account a relevant consideration in coming to its conclusion that it: "is not satisfied that the visa applicant is making acceptable arrangements to depart at the time of the decision". The relevant consideration is said to be the interests of the applicant's children and the hardship they might suffer if the applicant is removed from Australia prior to the determination of their application.
38 The issue which MRT was required to address (Sched 2: 050.212(2)) was whether MRT was satisfied that "the applicant is making, or is the subject of, acceptable arrangements to depart Australia". MRT considered (par 48) whether it was satisfied that the applicant intends to depart Australia once the children's' applications for a protection visa have been finalised. MRT said that it did not find the applicant such a credible witness (par 49) that it is prepared to find that he is making acceptable arrangements to depart Australia "on the basis of his assurances that he will leave at some uncertain future time".
39 In coming to the conclusion which it did, MRT took into account the fact that the children had proceedings pending before RRT, but the applicant failed to persuade MRT that he would leave Australia once the RRT proceedings were finalised. If MRT was required to take into account the children's pending proceedings before RRT, then MRT did so.
40 Accordingly, the only identified ground on which it is sought to impeach the decision of MRT is one which is doomed to failure. The respondent has not followed the obvious course of moving for summary judgment on the applicant's claim. Why it has not done so does not appear. The power to grant relief under s 482(2) is discretionary. The Court cannot be obliged to grant relief under s 482(3) in a case where it concludes that the "appeal" is without merit and bound to fail. Madafferi v Minister for Immigration & Multicultural Affairs does not require the Court to proceed in that way. Accordingly, if I had power to grant the interlocutory relief sought under s 482(2) and (3), in the exercise of my discretion I would not do so.
41 The position is a fortiori when one recalls that what the applicant is seeking from MRT is a bridging visa to remain in Australia on the ground that he has made acceptable arrangements for his departure.
42 In the view I take, the Court has power to grant interlocutory injunctive relief under s 23 of FCA. That power is to be exercised in accordance with settled principles, which involve a determination of whether there is a serious question to be tried, and where the balance of convenience lies or perhaps simply whether there is a sufficiently arguable case: see Crock (supra) at pp 223-234. For the reasons already given, the applicant has not established that there is a serious question to be tried, or a sufficiently arguable case.
43 In Arkan v Minister for Immigration & Multicultural Affairs [2000] FCA 1134 Tamberlin J considered whether or not to grant an interlocutory injunction to restrain a threatened deportation in circumstances similar to the present. His Honour took into account on the balance of convenience the fact that the applicants (not unnaturally) had already taken almost every available avenue of challenge to the decisions of the Minister and his department, and that they had been in Australia unlawfully for a considerable period of time. There was little real benefit in further delaying their departure until they could satisfy the Minister that they had made suitable arrangements for departure. A grant of a visa for this purpose would have achieved very little for the applicants from a practical point of view. All of these features are to be found in the present case.
44 As against that, there is material which suggests that if the applicant is returned to Fiji there is a significant chance that Workers Compensation payments which the applicant is receiving will cease, and the applicant may have difficulty in providing, and may be unable to provide, money to support his wife and children in Australia. The applicant would have difficulty in obtaining employment in Fiji having regard to his back condition and to the fact that he has been out of Fiji since 1994. He would also have difficulty in providing instructions to any representative in relation to his current application for review.
45 My conclusion is that it has not been shown that the applicant has any arguable basis for a review of MRT's decision, and that it would be futile for the hearing scheduled for 22 November of this year to take place. In the light of that conclusion it is not strictly necessary for me to consider the balance of convenience. There are factors which point in each direction. Ultimately I have come to the conclusion that the balance favours departure, as keeping the applicant here in detention simply postpones the evil day without significant benefit to the applicant or his family.
46 The application for interlocutory relief should be refused.
47 In Kopiev v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 Sackville J carefully analysed the legislative scheme and concluded at [28] that the Minister was entitled, if not required, to remove the applicant from Australia notwithstanding that the applicant had instituted proceedings in the Court. In Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872 the Full Court held that participation in directions hearings did not give rise to an implied undertaking to the Court that the applicant would not be removed from Australia until the determination of the proceedings. At [41] the Court adverted to the possibility that in some circumstances removal of an applicant from Australia in the face of pending court proceedings could constitute a contempt: see also Bolea v Minister for Immigration & Multicultural Affairs [2001] FCA 1129 [14].
48 The applicant did not seek to invoke the issue of contempt as a basis for the grant of relief, hence I say no more about that matter.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. |
Associate:
Dated: 12 September 2001
Counsel for the Applicant: |
Mr B Zipser |
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Solicitor for the Respondent: |
Blake Dawson Waldron |
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Date of Hearing: |
6, 7 September 2001 |
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Date of Judgment: |
12 September 2001 |
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