REASONS FOR JUDGMENT
1 The present case raises the question of whether the Court has power to make an interlocutory order for the release from detention of a non-citizen held in immigration detention under the Migration Act 1958 (Cth) ("the Act") and if so, whether it is appropriate for the Court to make such an order.
2 The applicant, who is applying for an interlocutory order for his release from detention, is of Hazara ethnicity and a citizen of Afghanistan. He arrived in Australia as an unlawful non-citizen on or about 21 March 2001 and has been held in immigration detention at the Curtin Immigration Reception and Processing Centre ("the Curtin Centre") in the State of Western Australia since that time.
3 On 27 July 2001 the applicant applied for a protection visa on the ground that he has a well-founded fear of persecution by reason of his race and religion if he returned to Afghanistan. The application for a protection visa was considered by Mr S Thompson, a delegate of the respondent ("the Minister") for the purposes of the grant of, or the refusal to grant, visas under s 65 of the Act.
4 On 7 December Mr Thompson signed an eleven page document entitled "Protection Visa Decision Record" ("the decision record") which was prepared and signed, but not dated, by him. In the decision record Mr Thompson stated the details of the applicant's claims, carefully considered each of the criteria that had to be satisfied for the grant of a protection visa and made findings in the applicant's favour in respect of the applicable criteria. One of the findings was that Mr Thompson was satisfied that the applicant's fear of persecution is well-founded.
5 Mr Thompson recorded his decision as follows:
"DECISIONS ON PROTECTION OBLIGATIONS
I find that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention.
DECISION ON PROTECTION (CLASS XA) VISA APPLICATION
I am satisfied that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention.
I am satisfied that [the applicant] satisfies all Regulations Schedule 2 Part 785 criteria. Accordingly, I grant him a Protection (Class XA) temporary visa. The applicant also:
· has undergone medical examinations carried out by a Commonwealth Medical Officer (clause 785.224).
· where necessary, has undergone a chest x-ray (clause 785.225).
· has satisfied public interest criteria 4001 to 4003 (clause 785.226).
· has satisfied the Minister that the grant of the visa is in the national interest (clause 785.227)
· is in Australia (clause 785.411)
· has not been offered a temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC (clause 785.223)
Only one Protection visa can be held by a person at any one time. My decision to grant a Protection visa on all Protection visa applications before me from the applicant gives him only one Protection visa.
[Signed]
S Thompson
Position number: 6425
Delegate of the Minister for Immigration and Ethnic Affairs
For purposes of section 65 of the Migration Act 1958"
6 The decision purportedly recorded in the decision record was not communicated to the applicant. Mr Thompson claims that that was because the decision was only a draft assessment. He explained his role in the matter as follows:
"6. On 27 July 2001 the applicant lodged an application for a Protection (Class XA) visa ('protection visa application') with the Department. The applicant also lodged a completed Form 80 - Personal Particulars for Character Assessment.
7. I was assigned to process the protection visa application. On 29 July 2001, I interviewed the applicant in relation to his protection visa application.
8. Clause 785.226 is in Part 785 of Schedule 2 to the Regulations and requires the applicant to satisfy public interest criterion 4002.
9. Public interest criterion 4002 is in schedule 4 to the Regulations and provide[s]:
4002 The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.
10. I travelled overseas on Sunday, 9 December 2001 on Departmental business and was not due to return to work until the New Year.
11. Prior to my departure, Ms Karen Dix, who was at the relevant time employed as the Team 4 Manager of the Onshore Protection Section, Sydney requested me to prepare a draft assessment of the applicant's case.
12. On Friday, 7 December 2001, in accordance with Ms Dix's request, I prepared a draft assessment in relation to the applicant's case. A copy of the document I prepared on that date is located at folios 86 to 96 of MIMIA file No. CLF2001/37297 which I am informed is Exhibit ND 2 to the affidavit of Ms Nichola Donovan sworn on 22 July 2002. The document was signed by me but not dated to indicate that it was not a decision. Decisions are always dated on the day that they are made.
13. I drafted my assessment presupposing that a clear PIC 4002 check would be received in relation to the applicant and that changes in Afghanistan would not impact the applicant's case. I did so only for the purposes of facilitating the finalisation of the case in the event that this became possible in my absence.
14. As at 7 December 2001, I was not satisfied that the applicant met all the criteria for the grant of Subclass 785 Temporary Protection) visa. In particular, I was not satisfied that the applicant met clause 785.226 of the Regulations as I had not received the results of the PIC 4002 check.
15. In addition, I was also aware on 7 December 2001 that the changing circumstances in Afghanistan could impact on the finalisation of the applicant's case.
16. Following my departure from Australia on 9 December 2001, I had no further involvement in the further processing of the applicant's protection visa application.
17. I did not at any time make a decision in relation to the applicant's protection visa application or any record of any such decision and did not grant the applicant a Subclass 785 (Temporary Protection) visa or make a record of any such visa."
7 The file of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") shows that on 9 November 2001 Mr Thompson requested an expedited security assessment of the applicant and on 18 December 2001 the assessment, which stated that the applicant was "clear", was received by the Department.
8 It appears that there was a change of policy within the Department which resulted in the suspension of the processing of protection visa applications by Afghan asylum seekers pending the receipt of further information about the security situation in Afghanistan as a result of the fall of the Taliban Government. On 18 January 2002 the Department informed the applicant that the processing of applications for protection visa applications which depended on the situation in Afghanistan was being suspended pending a stabilisation of the situation in that country.
9 Subsequently, as a result of Mr Thompson's unavailability, the applicant's case was transferred to a second delegate of the Minister for further processing. On 11 April 2002 the second delegate made a decision refusing to grant a protection visa to the applicant. It appears that the change in view concerning the applicant's claim was a result of the new situation in Afghanistan. On 12 April 2002 the applicant applied for the review of the second delegate's decision by the Refugee Review Tribunal and also made an FOI request. On 26 June the Tribunal affirmed the second delegate's decision. On 3 July and 10 July the applicant commenced judicial review proceedings in the Court in respect of the Tribunal's decision.
10 The Department's documents, which had been the subject of the applicant's FOI request, were received by the applicant on 22 May 2002. On 18 July representatives of the applicant claimed that the decision record, which was one of the documents produced as a result of the FOI request, constituted the grant of a protection visa to the applicant. After the Department rejected the claim he commenced a proceeding in the Court for a declaration that he was granted a Protection Visa (Class XA) sub-class 785 and a declaration that he was a lawful non-citizen. The applicant also sought an interlocutory order that he be released from immigration detention pending the hearing and determination of his application. The application for interlocutory relief was heard on 2 August 2002.
11 The applicant contends that the decision record constituted the grant of a visa under the Act with the consequence that, as from 7 December 2001, the applicant has been a lawful, rather than an unlawful, non-citizen. The applicant's alternative argument was that if the decision record did not constitute a final decision made on 7 December 2001 when it was signed, it was a decision made on that day subject to a condition namely, the grant of a security clearance, which was satisfied on 18 December at which date the decision became unconditional. Accordingly, the applicant contends that he has a strong prima facie case or, at the least, he has established that there is a serious issue to be tried.
12 On the balance of convenience the applicant relied upon the deleterious consequences he has suffered as a result of being held in immigration detention at the Curtin Centre for over 16 months "waiting for something to happen". He stated that he has become "very depressed, frustrated, and hopeless" with consequential harm to his memory, sleep patterns and overall state of well being. In his affidavit he stated:
"If I am forced to stay in detention much longer I am afraid it will make me paralysed or crazy. I feel like there are fences here, and nothing else. Nothing but fences. Even my thinking is not free. I am away from my family, from everyone I know, and these fences will not allow me to think about being free. I cry here a lot. I never cried before I cried here."
13 Counsel for the applicant tendered a letter from the Hotham Mission in North Melbourne, Victoria, stating that the Mission had secured housing for the applicant in Melbourne and had entered into a joint arrangement with a support group "to provide ongoing support, housing, referral and material aid" to the applicant until the final outcome of his proceeding. The Mission's letter stated:
"Hotham Mission is able to provide monthly cash assistance to [the applicant] through our Basic Living Assistance Program as well as referral to other agencies for any necessary additional assistance. Referrals will also be made for medical and counselling services. A care plan has been prepared for [the applicant] to ensure that he will receive ongoing support and accompaniment.
We will continue to cooperate with DIMIA, as well as working closely with the Foundation for Survivors of Torture and Red Cross in providing adequate ongoing support for [the applicant]."
14 Counsel for the applicant stated that the applicant was prepared to accept release on the following conditions:
"1. The Applicant accept release into the care of Hotham Mission, 2 Elm Street North Melbourne in the State of Victoria.
2. The Applicant reside at 136A Railway Parade, Ringwood East 3135 in the State of Victoria.
3. The Applicant notify the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') of any change of his residential address within 24 hours of the date of such change.
4. The Applicant report on a weekly basis to the Department at Casselden Place, 1 Lonsdale Street in Melbourne.
5. The Applicant not leave the State of Victoria without the permission of an officer in the Compliance Section of the Department.
6. The Applicant will attend the Federal Court of Australia upon the determination of his proceeding by the Court.
7. The Applicant sign an undertaking, to be filed with the Court and a copy kept in the offices of the Department, that he understands and will abide by the conditions of his release as set out herein."
15 The applicant contended that the balance of convenience was plainly in favour of release and that the conditions constituted a reasonable endeavour to ensure that there is no real risk of abscondment.
16 The Minister opposes the grant of any interlocutory relief. He contends that the Court has no power to order the applicant's release as the applicant must be detained in immigration detention under s 196 of the Act until he has been removed from Australia or granted a visa. The Minister contended that, as neither of those events have occurred, the Act prohibits the release of the applicant whether by way of final relief or an interlocutory order. The alternative submission of the Minister is that the applicant has no arguable case on the merits as the evidence demonstrates that the decision record was only a draft assessment and therefore was not capable of being a decision to grant a visa under the Act. The Minister also contended that the applicant's review proceedings in the Refugee Review Tribunal and in the Court were inconsistent with the position he now takes that he was granted a visa. Consequently, so it is argued, the applicant must be taken to have waived his rights in respect of the visa he contends he was granted.
17 On the balance of convenience the Minister submitted that the weakness of the applicant's case, a strong legislative presumption against release of an unlawful non-citizen until the Court has declared otherwise and the risk of abscondment should result in the Court exercising its discretion against ordering the applicant's release. The Minister declined to put any submission in relation to the conditions of release proffered by the applicant or to suggest any further or other conditions. The Minister contended that the appropriate course is for the Court to bring the matter on for an early final hearing, rather than order the applicant's release by way of interlocutory relief.
18 Before turning to consider the merits of the submissions for the parties it is necessary to consider the statutory scheme. The applicant arrived in Australia without a visa and accordingly, was an unlawful non-citizen: see ss 13 and 14 of the Act. Under s 189(1) of the Act an officer who knows or reasonably suspects that a person in Australia is an unlawful non-citizen must detain the person. Section 5 defines "detain" to mean to take into immigration detention or to keep, or cause to be kept, in immigration detention. The expression "immigration detention" is defined in s 5 and includes being held in a detention centre established under the Act, such as the Curtin Centre. It is clear that the applicant was lawfully placed in immigration detention at the Curtin Centre in accordance with the provisions to which I have referred.
19 Section 196, which provides for the period of detention, is as follows:
"(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
a. removed from Australia under section 198 or 199; or
b. deported under section 200; or
c. granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."
20 The applicant claims that, as he was granted a visa on 7 December 2001, or at the latest on 18 December 2001, he is a lawful non-citizen as defined in s 13 and therefore has been held in detention unlawfully since one or other of those dates. Accordingly, he contends that he is entitled to be released from immigration detention.
21 The Minister contends that, as the applicant has not been granted a visa, ss 196(1) and (3) make it clear that he must continue to be kept in immigration detention and that a court cannot order his release until it has declared that he has been granted a visa.
22 Plainly, a critical issue is whether the applicant has been granted a "visa", which is provided for in s 29(1) of the Act:
"(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia."
23 Section 65(1) provides:
"(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa."
24 Section 66 provides for the notification of a visa decision to the applicant for the visa, but s 66(4) provides:
"(4) Failure to give notification of a decision does not affect the validity of the decision."
25 Sections 67 and 68(1) and (2) provide:
"67 A visa is to be granted by the Minister causing a record of it to be made.
68 (1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a) specified in the visa; or
(b) when an event, specified in the visa, happens."
26 Section 70 requires an officer of the Department to give a non-citizen who is granted a visa "evidence of the visa". It is clear from the above provisions, but particularly ss 65(1), 67 and 68(1), that upon reaching the requisite state of satisfaction in relation to the criteria required to be satisfied, the Minister or his delegate must grant the relevant visa by causing "a record of it to be made" and, unless otherwise specified in the visa, it is to have effect "as soon as it is granted".
27 Finally, s 474 of the Act provides:
"(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision."
28 Both parties relied upon s 474 of the Act, which precludes a court from granting relief in respect of a "privative clause decision": see generally NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. The applicant contended that s 474 precluded the Minister from calling into question the "decision" to grant the protection visa and the Minister contended that s 474 precludes the applicant from calling into question the validity of his detention. There are obvious difficulties with the contentions of both parties in respect of the operation of the privative clause in the present case. If the decision record is found to constitute a visa decision, rather than a draft assessment, then the applicant would not need to rely on s 474. Likewise, if the decision record is found not to be a "decision" then the Minister would not need to rely on s 474. At this interlocutory stage I have some doubt as to whether the privative clause will be relevant to the outcome of the respective cases being put on behalf of the applicant and the Minister. Accordingly, at this interlocutory stage I do not regard s 474 as being of sufficient significance to the likely outcome of the case to conclude that it assists or is detrimental to the strength or weakness of the prima facie case the applicant is required to establish for the grant of the interlocutory relief he is seeking.
29 It is appropriate first to consider the Minister's submission, made in reliance on ss 196(1) and (3), that the Court has no power to order the applicant's release by the interlocutory order sought by the applicant. In Al Masri v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 ("Al Masri"). I observed at [54]-[55]:
"54. I do not regard ss 196(1)(a) and 196(3) as operating to prevent an order for the applicant's release from detention. In my view the sub-sections only apply to a detention that is lawful under the Act. As was observed by Beaumont J in NAMU at [15]:
'… it is clear on the face of subs (3) that it is not intended to direct or control the manner of exercise of any judicial power; rather, it makes it clear that there is no jurisdiction in a court to direct the release of a person lawfully detained. But this is not to say that the question whether or not a person is an 'unlawful non-citizen' is not justiciable or not examinable by a court; it would be open to a court to order, for example, that a person judged not to be an 'unlawful non-citizen', be released; that is to say, the ability of the courts to determine the lawfulness of any detention remains unaffected by the provisions of Division 7.'
55. If, contrary to my view, ss 196(1)(a) and (3) were construed as preventing the courts from granting relief in respect of unlawful detention they would be invalid as transgressing the constitutional protections of the judicial power in Ch III discussed in Lim."
30 The issue in Al Masri and the present case relates to the legality of the detention of the respective applicants. Al Masri was concerned with whether there were certain implied limitations on the Minister's power under ss 189, 196(1)(a) and (3) to detain an unlawful non-citizen pending his removal from Australia when there is no real likelihood or prospect of the non-citizen's removal in the reasonably foreseeable future. The present case is concerned with whether the applicant is a non-citizen who has been granted a visa with the consequence that the Minister is not entitled to detain him (ss 196(1)(a) and (2)) or whether he does not have a visa with the consequence that the Minister is obliged to detain him (ss 189, 196(1)(a) and (3)). If the applicant's claim is upheld he is being unlawfully detained but if it fails his detention is lawful.
31 While s 196 cannot prevent the Court from ordering the applicant's release if his detention is unlawful, the issue in the present case is whether it operates to prevent the Court from making an interlocutory order for his release when he is challenging the legality of his detention. The source of the Court's power to make such an order is s 23 of the Federal Court of Australia Act 1976 (Cth) which provides:
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."
32 The operation of s 23 was considered by Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 ("Patrick Stevedores") at 29:
"27. Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') to make 'orders of such kinds, including interlocutory orders ... as the Court thinks appropriate'. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case.
28. It was emphasised in the joint judgment of four members of this Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission that s 23 of the Federal Court Act 'does not provide authority for granting an injunction where there is otherwise no case for injunctive relief', whether 'under the general law or by statute'. In Jackson v Sterling Industries Ltd, Brennan J and Toohey J expressed the point as being that s 23 confers on the Federal Court such powers as are necessary or incidental to the exercise of the jurisdiction of that court. …
…
35. The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.'"
33 The present matter arises under the Act. Plainly, the Court has jurisdiction to grant declaratory relief that the applicant was granted a visa and is a lawful non-citizen. If that relief is granted it must follow that since the grant of the visa the applicant has been unlawfully detained. As s 196 does not authorise unlawful detention there is nothing in the Act that operates to preclude the Court from making final orders for the applicant's release if he establishes that he has been granted a visa. As I explained in Al Masri at [18] and [54]-[56], upon a conclusion being reached that an applicant's detention is unlawful there is no discretion in the Court to refuse an order for release. While the applicant did not seek a final order for release in his application he applied for an interlocutory order for his release and it is clear that the substantive relief he will be seeking includes an order for his release from immigration detention. In these circumstances an interlocutory order for release may be made under s 23 if:
· the Act does not "expressly or impliedly deny the s 23 power": see Patrick Stevedores at [27]; and
· such an order is "appropriate" in the sense discussed in Patrick Stevedores in the passages set out above.
34 Restrictions on the Court's power to grant relief are contained in ss 474(1) and 196. As explained above I doubt that s 474(1) is of any relevance in the present case which is concerned with whether a privative clause decision has been "made". Section 474 does not prevent the Court from determining that issue and, subject to the constraints set out in the section, granting appropriate declaratory and injunctive relief on the basis of that determination. Indeed, in the present circumstances a determination of that question, which will resolve the dispute between the parties, is a precondition to the operation of s 474(1).
35 The operation of s 196 is more problematic. The section was enacted substantially in its present form as s 54ZD, inserted by the Migration Reform Act 1992, presumably in response to the issues raised in Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ("Lim"). When one considers the issues raised in Lim's case, which was heard, but not decided, prior to the second reading speech of the Migration Reform Bill 1992, it is not surprising that ss 196(2) and (3) were enacted in order to emphasise that the courts had no power to interfere with lawful detention (s 196(3)) but the executive had no power to maintain an unlawful detention (s 196(2)). Nonetheless, the issue is whether s 196 is to be construed as expressly or impliedly denying the s 23 power of the Court. A number of factors have led me to conclude that s 196 does not deny that power to the Court.
36 First, under the Act when the legislature intends to deny jurisdiction to a court it has done so expressly and clearly: see ss 474, 475 and 476. Further, it is well established that "the courts should construe strictly any statutory provision purporting to allow the deprivation of liberty by administrative detention": see Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] A.C. 97 ("Lam") at 111 and Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 ("Msilanga") at 188. Section 196 has not clearly or expressly denied the s 23 power.
37 Second, there is a well established body of authority in the Court that s 23 confers power on the Court to make an interlocutory order for the release of an applicant from immigration detention under the Act. The authorities were summarised by Kenny J in Peniche v Vanstone (1999) 96 FCR 38 at 44-46:
"19. In support of the submission that the Court did have power to order the applicant's release on this interlocutory application, the applicant relied on decisions of the Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCA 169 ('Msilanga') and Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158 ('Montero'), as well as the numerous authorities in which those two cases have been applied: see, for example, Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123; Tuiletufaga v Minister for Immigration and Multicultural Affairs [1998] FCA 992; Omar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 607; Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483; and Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 658.
20. All of these decisions concern provisions of the Migration Act 1958, as amended, … For present purposes, it suffices to refer to the provisions under consideration in Msilanga. Under s 93(1) of the Migration Act as it then stood, where an order for the deportation of a person was in force, an officer was authorised to arrest that person, without warrant. Subsections 93(2) and (8) provided that a person arrested under s 93(1) might be kept in custody pending deportation. Subsection 93(9) provided that, in spite of everything else in the section, the Minister or the Secretary might at any time order the release of a person who was in custody under the section.
21. In Msilanga, the applicant sought judicial review of the decisions of the Minister to detain him in custody and to continue his detention. By way of interlocutory relief, the applicant sought an order directing the Minister to release him from detention. The Minister opposed the interlocutory application upon the ground, amongst others, that the Court did not have power to grant the interlocutory relief sought. That submission failed. Beaumont J (with whom Black CJ agreed) held that there was such power 'by virtue of ss 19 and 23 of the Federal Court of Australia Act 1976, read (if need be) in conjunction with s 15 of the Administrative Decisions (Judicial Review) Act 1977': 34 FCR at 179. Beaumont J acknowledged the limits (to which I have already referred) upon the power in s 23 of the Federal Court of Australia Act, observing at 179:
'It is true that an interim order under s 23 of the FCA Act could not travel beyond the jurisdiction or powers conferred by s 16 of the ADJR Act or s 39B of the Judiciary Act by way of final relief - the stream cannot rise higher than its source. But it is plain that final relief by way of release from custody could be ordered in the present type of case. That is to say, as a matter of power or jurisdiction, if release can be ordered at the final hearing, it must also be within the court's competence to make such an order at the interim stage, if this is otherwise appropriate.'
His Honour added at 181-182:
'I agree with the learned primary judge that the immediate source of his jurisdiction or power was s 23 of the FCA Act, read in conjunction with s 15 of the ADJR Act. There is nothing in the latter provision which is inconsistent with the former. Each provision empowers the court, in an appropriate case, in the exercise of a judicial discretion, to restrain, on an interim basis and pending final determination of the substantive claim, administrative action where a serious question arises as to the validity of that action. The appropriate form of that restraint will depend upon the circumstances of the particular case. Where the administrative actions under challenge are decisions to arrest and to detain in custody, there is no reason, in principle, why it would not be appropriate for the court to order, on an interim footing, that the party be released from custody until the substantive claim is dealt with.'
…
22. The applicant sought to derive some support from the decision of Weinberg J in Betkhoshabeh. In that case, however, the applicant sought judicial review of decisions not to release him and to retain him in custody. Weinberg J determined that, in that circumstance, Msilanga applied because '[i]n challenging the Minister's decision not to order [his] relief … the applicant is, in effect, challenging the legality of his continuing detention': 162 ALR at 672. …
23. In Montero, the same Full Court (as in Msilanga) held that the Court had power to restrain 'executive action which flowed from the purported cancellation [of a visa], specifically the taking of Mr Montero into custody', upon the basis that the latter action was 'a step taken consequent upon the cancellation'. …
24. …under the relevant provisions of the Migration Act 1958, the authority to decide to take into custody, or not to release, depended upon the existence of other facts and circumstances. If those facts and circumstances were found to be absent, then so too was the authority to hold in custody, and the detainee was entitled to an order for release. …"
38 The cases referred to by Kenny J were primarily concerned with the provisions in the Act that authorised discretionary detention for the purpose of deportation of non-citizens whose visas had been cancelled (see for example, s 253). However, it was not suggested in the decisions of the Court in those cases that s 54ZD, s 196 or any other provision of the Act impliedly denied the s 23 power of the Court.
39 NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 999 ("NAMU No 2") was relied upon by the Minister to support his contention that s 196 had that effect. The applicants sought an interlocutory order for their release pending an appeal against a decision of Beaumont J upholding the constitutional validity of s 196(3). After determining at [23] that, even if the applicant's succeeded in their appeal, they would not be entitled to an order for their release on the ground that their detention was unlawful, Hely J concluded (at [30]) that s 196(3) is "a legislative command to the Courts not to order the release of persons in the position of the applicants…". However, "the position of the applicants" in NAMU No 2 was found by his Honour to be that, whatever might be the outcome of their appeal, they would remain unlawful non-citizens required to be detained by reason of ss 189 and 196(1).
40 The position of the applicant in the present case is quite different in that, if his application succeeds, he will not be an unlawful non-citizen but, rather, will be a lawful non-citizen who is being unlawfully detained. Thus, the applicant's position is analogous to that of the applicants in Msilanga and the cases that have applied it, where a successful outcome would, or could, result in the applicant's continued detention no longer being authorised or lawful under the Act. In such cases, where the legality of the detention itself is in issue, the Court has consistently been held to have power under s 23 to make an interlocutory order for release.
41 The Msilanga principle has also continued to be applied, notwithstanding s 196(3), in cases where an applicant is challenging a decision of the Minister to cancel the applicant's resident visa under s 501, following which the applicant was taken into detention but has applied for a stay of the decision: see Long v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 366 at 369-370 and Halmi v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 411 at 417-419.
42 In NAMU No 2 Hely J did not refer to s 23 or to the decisions of the Court that have applied Msilanga. I do not regard his Honour as having concluded that s 196(3) should be construed as denying the Court the s 23 power with the consequence that the principles enunciated by the Full Court in Msilanga and applied by Judges of the Court since Msilanga are no longer applicable. If, contrary to my view, his Honour is to be taken as reaching such a conclusion I would respectfully decline to follow his Honour's decision for the reasons set out in this decision.
43 In Lim Mason CJ and Toohey J appeared to accept that a provision that provided for mandatory detention did not deny the Court's s 23 power. Lim was concerned, inter alia, with the validity of s 54R of the Act which provided that a "court is not to order the release from custody of a designated person". As a "designated person" was found by the majority to have been defined in the Act in a manner that authorised unlawful detention s 54R was held to be invalid because it was an impermissible derogation from the jurisdiction which the Constitution directly vested in the High Court and an impermissible intrusion into the judicial power that Ch III of the Constitution vests exclusively in the courts. The minority (Mason CJ, Toohey and McHugh JJ), however, read down s 54R as a direction to a court not to release a designated person lawfully detained in custody under the Act and held that, so construed, the section did not direct a court not to give effect to substantive rights.
44 In that context Mason CJ observed (at 13):
"Read as I would read it, s 54R does not preclude a court from making an interlocutory order for the release of a designated person who makes out a suitably strong prima facie case that he or she is not being held in lawful custody pursuant to Div 4B. The section operates only when the designated person is lawfully held in custody pursuant to that Division. The Federal Court has, on numerous occasions, affirmed that it has power to make an interlocutory order for the release of a person held in custody pending a final determination by way of review of a decision to deport that person. With that in mind, it is conceivable that Parliament may have intended, by the enactment of s 54R, to deny jurisdiction to the courts to make an interlocutory order for the release of a designated person so that the courts' jurisdiction to order the release of such a person was confined to the making of an order pronounced after a final determination that the person's detention was unlawful. Whether Parliament could validly legislate to that effect is not a question which needs to be explored here because s 54R is not expressed in a form apt to achieve that result."
Toohey J observed (at 51):
"It should also be said that since s 54R is directed only to the release from custody of a designated person who is lawfully kept in custody under the provisions of Div 4B, the section is not a barrier to the making of an interlocutory order for the release from custody of a designated person who is challenging the lawfulness of his or her custody where the court is satisfied that the lawfulness of the custody is sufficiently arguable to warrant an interlocutory order for release from custody in accordance with accepted principles governing the grant of interlocutory relief. The result is that, while s 54R is valid to the extent indicated, in reality it adds nothing to Div 4B."
See also McHugh J at 69. The interlocutory release issue was not considered by the majority.
45 Thus, there is a consistent and well established line of authority that has not construed the discretionary or the mandatory detention provisions in the Act as expressly or impliedly denying the s 23 power in a case where the applicant is challenging the legality of his detention.
46 Third, when Parliament amended s 54ZD to s 196 in its present form in 1994 it can be taken to have been aware of the decisions of Mason CJ and Toohey J in Lim and of the Full Court's decisions in Msilanga and Montero, which construed the detention powers in the Act as not denying the s 23 power to the Court. Yet, the legislature did not introduce a provision limiting or removing the s 23 power. That is a matter that is relevant to the construction of the section: see Lam at 114.
47 The construction of s 196 ultimately contended for by the Minister is that in the circumstances of the present case the Court cannot order the applicant's release until it has declared that he has a visa and that such a declaration cannot be made by an interlocutory order. However, that is not what s 196 says. The section is concerned with whether the non-citizen has been granted a visa, and not with whether a court has declared that a visa has been granted. Thus, the lawfulness of the non-citizen's detention depends on whether and, if so, when the visa has been granted and not on whether a court has found that a visa has been granted.
48 For the above reasons I have concluded that in the present case if the Court thinks it "appropriate" it has power under s 23 to order the applicant's release pending the hearing and determination of his application. Msilanga and the decisions that have followed it have accepted that an interlocutory order for release is "appropriate" under s 23 where the legality of the detention is in issue in the proceeding. That is not surprising as the Court is required at an interlocutory stage to balance an applicant's claimed right not to be held in unlawful detention against the Minister's claimed obligation under the Act to maintain lawful detention.
49 Msilanga is authority for the proposition that, in determining whether or not to grant interlocutory relief, the Court should apply the "serious question to be tried" and "balance of convenience" tests and that, while exceptional circumstances need not be shown, "immigration issues" are relevant to the balance of convenience: see Msilanga at 170 per Black CJ at 182-183 per Beaumont J and at 189 per Burchett J. I turn to consider those issues.
50 The applicant has a strong prima facie documentary case as the decision record appears to be a decision to grant him a protection visa. However, if the affidavit evidence adduced by the Minister were accepted at trial it is likely that the applicant's case would fail. Plainly, the acceptance of that evidence is likely to be affected by discovery, any other evidence adduced by the parties and cross-examination. In these circumstances I am satisfied that there is a serious issue to be tried as to whether there was a decision to grant the applicant a visa and, therefore, whether the applicant's detention is lawful.
51 The Minister has relied upon the applicant's conduct in reviewing the second delegate's decision as being inconsistent with, and therefore as constituting a waiver of, his right to a visa. When the Minister's denial that the applicant has a visa and the statutory requirements for, and limitations on, the applicant's right to review the second delegate's and the Tribunal's decisions are considered, I doubt that there is any inconsistent conduct on the part of the applicant, even if it were accepted that he was aware of his rights. Further, I doubt that estoppel, waiver or acquiescence can operate to contradict a statute: see Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 107. If that is the correct view then, if the applicant has been granted a visa under the Act he is a lawful, rather than an unlawful, non-citizen. However, it is sufficient for present purposes that I am of the view that the Minister's waiver argument is not of sufficient strength or cogency to warrant a conclusion that there is not a serious issue to be tried.
52 Thus, whether an interlocutory order for release is appropriate in the present case turns on the balance of convenience. The applicant's inconvenience is deprivation of liberty in circumstances that are causing him significant anxiety, distress and harm. If his claim succeeds the detention is effectively denying him the benefits of the three year visa that he contends was granted in December 2001. Thus, for each day the applicant is in detention he is losing a day of the visa, and also a day of the liberty of which he contends he is being unlawfully deprived. Further, under s 209 of the Act the applicant is liable to the Commonwealth for the costs of his detention. Although I doubt that the Commonwealth could recover its costs of an unlawful detention, the Minister has not accepted that is so. Finally, the applicant has offered to submit to and abide by stringent conditions, including reporting conditions, that will reduce or minimise any risk of abscondment.
53 The Minister contends that there is a legislative presumption against release unless the person is a lawful non-citizen. He claims that an order for release undermines the statutory scheme that requires detention until removal and, as a result, creates a real risk of abscondment on the part of the applicant. As explained above he contends that in such circumstances an early hearing, rather than release, is appropriate.
54 While I accept that an early trial is appropriate the period within which the matter may be heard and determined is uncertain. The legislative presumption upon which the Minister relies can be accepted but it loses its force where the issue is whether the applicant is a lawful or an unlawful non-citizen. Also, this is not a case where there is any evidence that the applicant poses any danger or threat to the community or where, because of any deception or other past conduct, there is a real risk of abscondment. Rather, this is a case where the Minister's delegate has accepted the claims put forward by the applicant in support of his application for a protection visa. While there is always some risk of abscondment I am satisfied that the conditions proffered by counsel for the applicant minimise any such risk. As the Minister did not make any submissions as to those conditions I can more readily infer that they are reasonable in the circumstances of the present case. In my view, the balance of convenience is clearly in favour of the applicant's release.
55 Accordingly, upon counsel for the applicant undertaking on behalf of the applicant to abide by the conditions proffered on his behalf and upon being satisfied that arrangements can be made for the applicant's transportation to Melbourne where he is to reside, it is appropriate to order that, until the hearing and determination of the proceeding or until further order, the Minister be restrained from continuing to detain the applicant in immigration detention. As the applicant has succeeded on the present application it is also appropriate to order that the Minister pay the applicant's costs of the application for interlocutory relief.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.