Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2002-09-20|Before: French J

Introduction 1 In September 2001, the MV Tampa rescued some hundreds of persons from a vessel sinking in international waters between Indonesia and Australia. The persons had been seeking to enter Australia unlawfully and to claim protection visas once in this country. The circumstances of the rescue, the steps taken by the Australian Government to prevent the MV Tampa from landing the rescuees in Australia, their subsequent transfer to the HMAS Manoora and their transport to the Republic of Nauru are set out in the judgment in Ruddock v Vadarlis (2001) 110 FCR 491. Other persons seeking to enter into Australia unlawfully by boat at or about that time were also taken to Nauru and to Papua New Guinea. 2 The present application is a sequel to these events. A number of the crew of vessels seeking to bring asylum seekers into Australia unlawfully, including those picked up by the MV Tampa were apprehended and charged with offences which may generically be described as "people-smuggling". Some of the asylum seekers were brought from Nauru to Perth to give evidence at the trial of the alleged people-smugglers in the District Court of Western Australia. 3 A recent amendment to the Migration Act 1958 (Cth) ("the Act"), known as the Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth) ("Transitional Movement Act") is said to empower officers of the Department to bring such persons to Australia, with or without their consent, using force if necessary, and when the purpose of their visit here has been served, to return them to the offshore place from whence they came. While here, as unlawful non-citizens, it appears that they are detained under s 189 of the Act. 4 The possibility exists that such persons might seek, once in Australia, to engage the statutory processes under the Act and apply for visas. The Transitional Movement Act prevents that possibility by designating them as "transitory persons" and providing that any application they make for a visa is not valid. This is subject to an exception in the event that the person has been previously assessed as a refugee. It is also subject to an exception if the person has remained in Australia for six months or more. The Transitional Movement Act bars access, by any transitory person, to judicial review except that which is available in the original jurisdiction of the High Court and is guaranteed by s 75 of the Constitution. 5 The present case concerns six asylum seekers who sought to enter this country unlawfully and were taken to Nauru. They were brought to Australia from that country under the provisions of the Transitional Movement Act for the purposes of giving evidence in proceedings against alleged people smugglers. It does not appear from the evidence whether they were brought voluntarily or involuntarily. Having given their evidence they applied for protection visas, both under the Act and directly to the Governor-General in Council. However, their applications are being treated as not valid. A claim for urgent interlocutory relief to prevent their imminent removal from Australia was brought in this Court on Friday, 20 September 2002. They were due to be removed from Australia on Monday, 23 September 2002. After hearing argument from counsel for the applicants and for the Minister and the Commonwealth, I concluded that there was no jurisdiction in this Court to entertain the application and that, in any event, no arguable case was disclosed. I gave ex tempore reasons for dismissing the claim for interlocutory relief and the application. I now publish those reasons, revised as to form and arrangement but not as to their substance.

The Proceedings 6 An application was filed in the Court today for writs of certiorari, prohibition and injunctive relief under s 39B of the Judiciary Act 1903 (Cth). The application was made on behalf of six named applicants, the respondents being the Minister for Immigration and Multicultural and Indigenous Affairs and the Commonwealth of Australia. 7 The orders sought in the application are in the following terms: "1. That a writ of mandamus be issued, pursuant to section 39B of the Judiciary Act 1903, in respect of the failure or refusal of the First Respondent to grant a protection visa to the Applicants. 2. That a writ of certiorari or prohibition be issued, pursuant to section 39B of the Judiciary Act 1903, in respect of the decision of the Second Respondent to refuse to afford, or consider affording, protection to the Applicants in accordance with the Second Respondent's obligations under the Convention relating to the Status of Refugees. 3. That a writ of mandamus be issued, pursuant to section 39B of the Judiciary Act 1903, requiring the First Respondent to consider the applicant's application for protection under the Convention relating to the Status of Refugees in accordance with law. 4. Orders restraining the Respondents and their servants and agents from removing the Applicants from Australia, or from the jurisdiction of the Court, pending a determination of this Application." The claim for interlocutory relief seeks an injunction restraining the respondents or their officers, agents or delegates from removing the applicants from Australia or from the jurisdiction of the Court pending the hearing and determination of the application. That claim has come on as a matter of urgency this afternoon.

The Facts 8 The factual position for the purposes of the interlocutory application emerges from the affidavits which have been filed and sworn by each of the applicants and the facts otherwise not in dispute and agreed by counsel in the course of argument. 9 Each of the applicants is presently being held in the Immigration Detention Centre in Perth. Each has been brought to Australia from Nauru by officers of the Department of Immigration and Multicultural and Indigenous Affairs for the purpose of giving evidence in proceedings in the District Court. It is not in dispute that the proceedings in the District Court relate to the prosecution of alleged people-smugglers said to have been involved in transporting people unlawfully into Australia. Three of the six applicants were persons who were taken on board the MV Tampa last year from a sinking vessel which was attempting to bring them to Australia. They were thereafter taken from the Tampa by the HMAS Manoora to Nauru. Another three of the six were persons who had sought to enter Australia unlawfully, but were intercepted before reaching the mainland and ultimately taken to Nauru. 10 In Nauru the applicants have undergone assessment for their claims to be entitled to protection under the Refugees Convention. Three of them have been assessed by the United Nations High Commission on Refugees and three by officers of the Department of Immigration and Multicultural and Indigenous Affairs. The administrative arrangements under which the DIMA officers assessed them are not before the Court. They are apparently not made pursuant to any statute. It is not necessary for present purposes that the arrangements be before the Court. It is common ground that none of those who have been assessed, either by UNHCR or DIMA, have been found to be entitled to the protection of the Refugees Convention. All but one have gone through a primary assessment and a review assessment. One has gone through the primary assessment, but not the review assessment. 11 The affidavits of each of the applicants are in common form. It is sufficient to quote from the affidavit of one of them because the drafting is identical in each case. It says: "1. I am presently in the Immigration Detention Centre, Perth, having been brought to that place from Nauru by Immigration Department officers for the purpose of giving evidence in the District Court. 2. While present in Australia, I have made application for a visa under the Migration Act in the form annexed marked "A". 3. At the same time I have made application to the Australian Government for asylum, in accordance with the Refugee Convention in the form annexed marked "B". 4. I have instructed my legal representatives to commence proceedings to ensure that my applications are dealt with according to law and that I am not removed from Australia before that happens. 5. I am informed by officers of the Department of Immigration and Multicultural Affairs (sic) that they intend to remove me from Australia on Monday 23 September 2002. 6. I make this affidavit in support of an application for an injunction to restrain government officers from removing me from Australia while the proceedings are before the Court." There is attached to each of the affidavits an application for a protection visa and a letter to the Minister for Immigration and Multicultural and Indigenous Affairs, signed by each of the applicants, in the following terms: "We the undersigned, have made application to you for protection visas under the Migration Act. In addition to that application pursuant to the legislation, we now, by this letter, apply to the Governor General in Council of the Commonwealth of Australia requesting that the Commonwealth exercise its executive power to provide protection to us pursuant to the Commonwealth's international obligations under the Convention relating to the Status of Refugees. We each have a genuine fear of persecution if returned to our country of origin. In support of that claim we refer to the facts and circumstances set out in the attached applications pursuant to the Migration Act." The arrangements presently in place are for the applicants to be transported by aircraft from Perth to Brisbane on Sunday 22 September and from Brisbane to Nauru on Monday 23 September.

Statutory Framework - The Migration Act 1958 12 It is necessary before turning to the arguments advanced in support of the grant of interlocutory relief to have regard to the statutory framework within which the claim is brought. I refer first to certain general provisions of the Act. In s 5 an "offshore entry person" is defined to mean: "… a person who: (a) entered Australia at an excised offshore place after the excision time for that offshore place; and (b) became an unlawful non‑citizen because of that entry." The term "unlawful non‑citizen" is defined in s 14 of the Act thus: "1. A non-citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen. 2. To avoid doubt a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen." This has to be read with the definition in s13 of a "lawful non‑citizen" which provides: "1. A non-citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen. 2. An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen." For present purposes it is sufficient to refer to subs (1) of each of those provisions to establish that a non‑citizen in the migration zone who does not hold a visa that is in effect is an unlawful non‑citizen. 13 The Act makes detailed provision for the grant of visas within the framework of the general power conferred on the Minister by s 29: "(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. There follows a substantial number of provisions dealing with both the classes of visa and the procedures for applying for visas. The class relevant for present purposes is a protection visa which is defined in s 36 of the Act. Relevantly in subs(1): "There is a class of visas to be known as a protection visa." In subs (2): "A criterion for a protection visa is that the applicant for the visa is: (a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Section 45 requires that subject to the Act and regulations a non‑citizen who wants a visa must apply for a visa of a particular class. 14 Section 46 refers to the criteria upon which an application for a visa will be treated as valid. It is not necessary to refer to those criteria in full but among them is the requirement that the application be for a visa of a class specified in the application and that it satisfies the criteria and requirements prescribed under the section and that other requirements are met. Section 47 imposes a duty on the Minister to consider a valid application for a visa and in subs (3) provides, to avoid doubt, the Minister is not to consider an application that is not a valid application. It may be seen that the characterisation of a visa application as valid, as defined by the provisions referred to, is critical to its consideration by the Minister. 15 Reference should also be made to s 198A, which authorises an officer to take an offshore entry person from Australia to a country in respect of which a declaration is in force under subs (3). It appears from what was said by counsel for the respondents that certain of the applicants, other than those on the Tampa, had been taken to Nauru pursuant to s 198A. While in Australia they are kept in detention apparently pursuant to s 189(1) which provides that if an officer knows or reasonably suspects that a person in the migration zone other than an excised offshore place is an unlawful non‑citizen, the officer must detain the person. 16 In connection with the application for the grant of visas under the executive power, mention should also be made of s 7A of the Act, which provides: "The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders." Statutory Framework - The Migration Legislation Amendment (Transitional Movement) Act 2002 17 The provisions of the Act so far mentioned are of a general application and were in effect prior to the most recent amendment which has a direct bearing on these proceedings. That is the Migration Legislation Amendment (Transitional Movement) Act 2002. That amending Act was the subject of a Second Reading Speech on 13 March 2002. In the Second Reading Speech the Minister said, having referred to earlier amendments passed in September 2001 relating to border protection: "While continuing to be vigilant, the Government recognises that there are some situations where it may be necessary to bring to Australia some persons who have been taken to a declared country. This Bill proposes amendments which will allow such a person, called a 'transitory person', to be brought to Australia from one of the declared countries in exceptional circumstances." 18 The term "transitory person" is of central importance to these amendments and a definition of that term is introduced by the amendments into subs 5(1) of the Act, thus "transitory person" means: "(a) an offshore entry person who was taken to another country under section 198A or; (b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) or; (c) a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001: (i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and (ii) was then taken by HMAS Manoora to another country; and (iii) disembarked in that other country but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol." The notion of assessment to be a refugee for the purposes of the Refugees Convention is not further defined although it may be assumed that it includes assessment by the United Nations High Commission on Refugees. In any event, that is immaterial for present purposes as it is common ground that none of these persons has been found by any agency to be a refugee for the purposes of the Refugees Convention. 19 The amendment introduces a new s 46B entitled, "Visa applications by transitory persons", which provides: "(1) An application for a visa is not a valid application if it is made by a transitory person who: (a) is in Australia and; (b) is an unlawful non-citizen. (2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination." The following subsections (3) to (7) inclusive, of s46B, relate to the procedures under which Ministerial statements of determinations are laid before Parliament, the contents of such statements and the times within which they must be laid before the Parliament. 20 The amending Act also inserts a new s 198B which provides: "(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. (2) The power under subsection (1) includes the power to do any of the following things within or outside Australia: (a) place the person on a vehicle or vessel; (b) restrain the person on a vehicle or vessel; (c) remove the person from a vehicle or vessel; (d) use such force as is necessary and reasonable. (3) In this section, officermeans an officer within the meaning of section 5, and includes a member of the Australian Defence Force." The section, on the face of it, provides authority to officers to bring transitory persons to Australia with or without their consent. Section 198C provides for certain transitory persons who have been in Australia for a period of six months or more to seek assessment of their claim to be a refugee directly from the Refugee Review Tribunal subject to certain procedures that are set out in that provision and s198B. 21 The final relevant provision of the amending Act is that which introduces into the Acta new s 494AB entitled "Bar on certain legal proceedings relating to transitory persons": "(1) The following proceedings against the Commonwealth may not be instituted or continued in any court: (a) proceedings relating to the exercise of powers under section 198B; (b) proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period; (c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen; (d) proceedings relating to the removal of the transitory person from Australia under this Act. (2) This section has effect despite anything else in this Act or any other law. (3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution. (4) In this section: Commonwealth includes: (a) an officer of the Commonwealth and; (b) any other person acting on behalf of the Commonwealth. ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen"

The Submissions and their Disposition 22 Several contentions are advanced to show that there is an arguable case for the proposition that the Minister is obliged to consider the applications for protection visas prior to removing the applicants from Australia and/or that the executive itself is required to consider their applications for protection visas if the statutory framework does not apply. 23 The first contention on behalf of the applicants is that they are not at present "transitory persons" under the Act being persons who have been brought into Australia's migration zone. It is submitted that the definition of transitory person is not temporally unlimited. That is to say there must be a point of time at which a person ceases to be a transitory person notwithstanding the apparent scope of the definition. A person who is within Australia making an application for a visa, having been brought into the migration zone, is not a transitory person. This contention flies in the face of the evident purpose and meaning of the provisions of s 46B and the definition of "transitory person". That plainly contemplates that a transitory person can be in Australia and may be an applicant for a visa. In such a case that person, if an unlawful non-citizen, cannot make a valid application. The result that the application is not valid attracts the other general provisions of the Act relating to visa applications. As observed earlier, the existence of a valid application is critical to the statutory power to grant a visa. 24 The agreed facts of this case make it clear that each of the applicants is, for present purposes, to be regarded as a transitory person. They were either offshore entry persons taken to another country under s 198A within the definition in paragraph (a) of transitory person in s 5(1), or persons who were transferred to the HMAS Manoora from the MV Tampa (par (c)(i)), were then taken to Naura and to another country (par (c)(ii)) and disembarked in that country ( par (c)(iii)). It is also clear that none of them is a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol, whatever process is referred to by those words. To the extent that there has been any assessment it is common ground that they have been assessed not to be refugees. There is in my opinion no arguable case against the proposition that the applicants are transitory persons for the purposes of s 46B. 25 It is then contended that s 46B is not a valid exercise of the legislative power of the Commonwealth under the Constitution. This is advanced as a matter of characterisation. It is said not to be a provision which relates to the constitutional powers to make laws with respect to immigration and emigration or with respect to aliens. That argument in my opinion has no merit. Section 46B is plainly a provision directed to a subset of the class of persons seeking to enter and/or remain in Australia, being transitory persons who are in Australia and who are unlawful non-citizens. On that basis alone it is a law with respect to immigration. In any event one of the criteria of the application of s 46B(1) is that the person is an unlawful non-citizen, a class which attracts the application of the aliens power. 26 It is also said, although it does not appear in the written material, that there is an arguable proposition that the applicants are not unlawful non-citizens. They have been brought to Australia, undoubtedly with the authority of the Minister, for the purpose of giving evidence in proceedings in this country, being criminal proceedings against alleged people smugglers. The existence of an assumed ministerial consent is linked, in argument, to the words of s 29 which defines "visa" in terms of a permission to travel to and enter Australia. It is suggested that there is an argument that the Minister, in authorising their entry into Australia, has granted them a visa and that they are therefore not within the description of unlawful non-citizens. Again, the argument has no merit. The grant of a visa is a procedure which requires that an application be made by an applicant. It has to be a valid application, it has to be for a specified class of visa and the visa can only be granted according to prescribed criteria. The bringing of persons from outside Australia to within Australia under the provisions of s 198B, which it appears would authorise the involuntary movement of persons to this country from another country, does not constitute or involve the grant of a visa. Nor is there any statutory road by which it can effect the grant of a visa or the applicants' transformation, once in this country, into lawful non-citizens. 27 Then it is said that the second respondent has failed to take into account, as mandatory relevant considerations, its international obligations under the Convention Relating to the Status of Refugees. This is a reference to the obligations which the executive has assumed by entering into the Convention Relating to the Status of Refugees. So far as the power to grant a visa derives from statute, Australia is free to qualify or limit, under its domestic law, the way in which or indeed whether it discharges its obligations under the Convention. Those obligations bind in domestic law only to the extent that they are embodied in a domestic statute. No mandatory relevant consideration arises. In any event the only relevant obligation is the non-refoulment obligation under Article 33. It is not suggested that that obligation is breached by returning the applicants to Nauru. 28 The invocation, by the applicants, of direct executive power in relation to the grant of protection visas relies upon s 7A of the Act which was introduced into the Act last year. That section gives effect to a view expressed by the majority in Ruddock v Vadarlisthat the Act does not exclude the executive power to prevent people from entering into Australia without lawful authority and to remove people from Australia who have entered without lawful authority. 29 The applications for protection visas made, through the Minister, to the Governor‑General in Council, operate upon the assumption that there is a legal duty upon the executive to discharge the obligations assumed by Australia at international law under the Convention. It is however a well‑known principle that in this country the obligations assumed by agreements between the Australian Government and other governments, expressed in conventions and treaties, do not take effect as part of the domestic law of Australia unless given such effect by a statute passed by the Parliament. There is no legal obligation under domestic law which would be enforceable in a court upon the executive to entertain such an application. It is also suggested that by removing the applicants from Australia, as it intends to do, the Commonwealth has failed to accord procedural fairness in relation to their applications in that it has failed to consider or properly consider or provide any hearing in respect of their applications. Of course, if there is no legal obligation to consider the application, there can be no failure to accord procedural fairness. 30 An ancillary argument in this respect was that, by reference to the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, there was an obligation in the exercise of executive powers to take account of Australia's obligations under the Refugee Convention. The decision of the High Court is authority for the proposition that in the exercise of a statutory discretion, a decision‑maker who intends to depart from an obligation which Australia has assumed under an international treaty should, as a matter of procedural fairness, indicate that to the person affected by the decision, so that person has an opportunity to make submissions. That is to say, there is a legitimate expectation on the part of the subject of the proposed decision that Australia will honour its obligations unless otherwise indicated. None of that is relevant here because there is no relevant statutory power to entertain the application for a protection visa and no legal obligation on the executive to entertain such an application outside the framework of statute.

Objection to Jurisdiction 31 It is said by counsel for the respondents that s 494AB sets up a bar to these proceedings, and although not expressed in these terms, it is in substance an objection to competency. The question is whether these proceedings are, within the meaning of s 494AB(1)(d), proceedings relating to the removal of a transitory person from Australia under the Act. In my opinion, they are. Even though their primary objective is to require consideration of the applicants' applications for protection visas, it is necessarily incidental to that objective that the applicants not be removed from Australia. The ultimate objective, of course, is to prevent their removal altogether by securing the grant of a visa, but relevantly to s 494AB(1)(d), it is the injunctive relief against their removal which is claimed and which falls within the scope of that provision. 32 The Parliament may confer jurisdiction under Ch III of the Constitution on a federal court or the courts of the various States. Subject to constitutional limitations not relevant here, that jurisdiction may be as wide or as narrow as the Parliament defines it to be. To the extent that s 494AB withdraws from the jurisdiction otherwise conferred on this Court under s 39B of the Judiciary Act, matters described by the classes of proceedings set out in subs (1) of that section, the Court must accept the limits of its jurisdiction so defined and that in this case it does not have jurisdiction to entertain the application. I observe that nothing in the section is intended to affect the jurisdiction of the High Court under s 75 of the Constitution. Nor could it. The appropriate place to bring this application was in the High Court under s 75(5). I am satisfied that the Court does not have the jurisdiction to entertain this application. If I am wrong on that, in any event, there is no seriously arguable case disclosed on the submissions which have been put to me by Mr McIntyre albeit he has done as much as could be done having regard to the urgency and circumstances of the case. Nor can I discern any basis upon which injunctive relief could properly be granted. 33 There is a question of balance of convenience to be taken into account in determining whether to grant interlocutory injunctive relief. But that counts for nothing if the Court lacks jurisdiction. The balance of convenience taken in isolation no doubt would favour the applicants although the Commonwealth puts into the scale of considerations the expense that would be incurred in the event that an injunction were to be granted. The strength of the case and the balance of convenience are inter‑related. If there is a strong case, then it may require little in the way of balance of convenience in favour of the applicants to justify the grant of interlocutory injunctive relief. Here there is no arguable case disclosed and the question of balance of convenience counts for nothing. In the circumstances I have no alternative, having regard to the jurisdictional aspect, than to dismiss the claim for interlocutory relief and the proceedings as a whole. I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate: Dated: September 2002 Counsel for the Applicants: Mr G McIntyre

Solicitor for the Respondents: Australian Government Solicitor

Migration Legislation Amendment (Transitional Movement) Act 2002(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)