Bolea v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Before the Court is an application by Mr Jimi Mauwa Bolea for an extension of time in which to file and serve a notice of appeal from the judgment of a judge of this Court, Sackville J, given on 22 June 2001 in which his Honour dismissed an application for judicial review of a decision made by the Migration Review Tribunal (the "Tribunal"). 2 Mr Bolea is a Fijian citizen who entered Australia on 26 July 1989 on a Category V12 Visitor visa. Later (in 1995) he lodged an application for a protection visa (he was granted a bridging visa for the period of the application) and was ultimately unsuccessful. Mr Bolea then made a request to the Minister to reconsider his application, resulting in the grant of a further bridging visa, but his request was rejected in March 1996. Another bridging visa was then granted to him on condition that he would depart Australia by 15 April 1996. He did not depart on that day. 3 It would seem that thereafter Mr Bolea disappeared from sight until located on 28 February 2001 on which day he was taken into detention. He made a further request to the Minister to reconsider his application for a protection visa on 15 March 2001 but this was not considered. He then, on 28 March 2001, lodged an application for what is referred to as a "Bridging E" visa. The application was refused and the decision of the delegate to the Minister was later affirmed on review by the Tribunal on 11 April 2001. It is the Tribunal's decision that was the subject of the application for judicial review before Sackville J. 4 It may be noted that the criteria for the grant of a Bridging E visa Sub-class O50 (General), are set out in Schedule 2 to the Migration Regulations 1994 (Cth). Given the nature of the visa which carries with it permission to remain in Australia for a period, such a visa is one only able to be granted while a person in fact is in Australia (not to mention other potential requirements, for example, cl 050.612(A), which brings into play condition 8101). As Mr Bolea has been removed from the country it would be now impossible, unless Mr Bolea came back into Australia in some way, for the visa to be granted to him. 5 The Tribunal took the view that, like the delegate to the Minister, it was not satisfied that Mr Bolea would abide by certain visa conditions if the visa were granted. Before Sackville J, Mr Bolea was not represented. He filed no evidence or submissions. His application did not identify a ground capable of constituting a ground of review under s 476(1) of the Migration Act 1958 (Cth). Sackville J was of the view that he was unable to detect any reviewable error on the part of the Tribunal, not having had any assistance from Mr Bolea. It is not surprising that his Honour dismissed the application for judicial review, with costs. 6 The court file discloses that on or about 17 July 2001 a fax was received by the Court from Mr Bolea enclosing a notice of appeal. To that the Court responded on 18 July 2001, indicating that more than 21 days had expired since the judgment was delivered on 22 June and that it would be necessary for Mr Bolea to apply to extend the time to appeal. Mr Bolea then faxed to the Court, completed, a form seeking an extension of time to file and serve the notice of appeal and it is that matter that is presently before me. 7 Mr Bolea did not attend in court when the matter was called. The reason for his failure to do so is to be found in an affidavit of Ulysses Salting Prescilla who works, apparently, with the Department of Immigration and Multicultural Affairs (Compliance) in Parramatta. He is a case officer and was responsible for Mr Bolea's case. It is interesting to note that on the day Mr Bolea sought to lodge his appeal, steps were on foot to remove him from the country. According to Mr Prescilla, on 18 July he contacted Mr Bolea and asked him whether he was willing to be removed and what his preferred destination was. Mr Prescilla indicates that he conducted the discussion with Mr Bolea in English without the aid of an interpreter. I do not know whether Mr Bolea's English was fluent or whether for a full understanding of what was said to him he would have needed an interpreter. 8 A booking was made apparently on 18 July 2001, the date Mr Bolea filed his application for an extension of time. On 19 July 2001, a fax was sent by the Court to the Department of Immigration and Multicultural Affairs for the attention of the Client Services Officer, indicating that the extension of time application had been filed and had been listed before me. On that day, Mr Prescilla told Mr Bolea that he was to be removed on 21 July 2001. On 20 July 2001, it appears that Mr Prescilla was told by a colleague in a telephone conversation that Mr Bolea had lodged a document, which Mr Prescilla understood to be an appeal, with the Court. Mr Prescilla spoke to his supervisor and then contacted the Department's Legal Services and Litigation Branch, presumably for advice. 9 Thereafter Mr Prescilla says he contacted Mr Bolea, informing him that he would be removed as arranged unless he sought a court injunction preventing that from going ahead. Mr Bolea said that he wished to wait for the court appeal, a not unusual or indeed even surprising desire. 10 The terms of the affidavit make it clear that nothing Mr Prescilla said to Mr Bolea suggested how he would be able to get to Court to make an application for an injunction, assuming he understood what this involved and that this was the process that would be necessary. During this time, Mr Bolea was in detention at Villawood. With great precision Mr Bolea was removed from Australia on 21 July 2001. 11 This is not the first time that the Minister or those representing him have removed from Australia persons who have made applications to the Court. One such case the subject of a Full Court judgment was Tchoylak v Minister for Immigration and Multicultural Affairs [2001] FCA 872 ("Tchoylak"). In that case, as in the present case, the consequence of removal was to render moot the application that was before the Court. In one respect, perhaps, Tchoylak may be thought to be more serious in that a day of Full Court time was taken, arguing the appeal that the Minister's removal had made futile. On the other hand, the circumstances which were ultimately put before the Court in Tchoylak were such that one at least knew that the removal was not deliberate but came about as a result of an administrative mistake. 12 The present case is different. Mr Prescilla disarmingly concedes that he was aware that an application to the court had been made. His only comment in mitigation is that he told a person in detention, whose English may or may not be such as to have understood him, that if he went to court and got an injunction he would not be removed until after the proceedings, otherwise he would be removed as arranged. One has only to state that proposition to see the practical stupidity of it. No attempt has been made on behalf of the Minister to apologise to the Court. 13 The question which is raised is what, if anything, the Court should do about it. It is simple enough to deal with the application for extension of time, whatever the merits of that case may be, and I express no view on them. Now that Mr Bolea is out of the country the application is moot and should be dismissed. There is nothing to suggest Mr Bolea has any costs and accordingly I would make no order as to costs. 14 But that leaves the issue of the unsatisfactory way in which those responsible have proceeded to remove someone who is in detention, in circumstances that inevitably defeated their legal rights, when proceedings are pending in the Court. As the Court said in Tchoylak, there are circumstances where removal, if it is known that the person has an application before the Court, could constitute a contempt of court. Ultimately the responsibility lies with the Minister. Indirectly, of course, it lies with those responsible to him. 15 The Full Court referred in Tchoylak to claims made by Amnesty International that there had been at least three occasions in recent times, of which Mr Tchoylak was one, when deportation had occurred while a court proceeding was pending. The Court indicated that there was doubt at least that some of Amnesty International's claims were justified. The Court was prepared to accept that it should not determine whether Mr Tchoylak's case was an isolated instance, never likely to be repeated, or whether it was but one of a number of cases where the Department had failed properly to discharge its responsibilities. At least in that case the Minister apologised to the Court. Indeed it was made clear to the Court at the time that procedures had been put in place to ensure that it would never happen again. 16 The written judgment in Tchoylak was given ultimately on 10 July 2001 (the events occurred a considerable time before that). Eleven days later, what is effectively the same situation has happened again. Unless within 14 days of today the Minister provides satisfactory evidence of procedures to ensure that this situation is never to be repeated as far as human diligence can ensure and tenders an appropriate apology to the Court, I will consider sending the Court's papers to the Attorney-General with a request that he consider whether to commence proceedings directly against the Minister or those answerable to him for contempt of Court. 17 Should such evidence be provided and an apology tendered, I will re-list the matter at an appropriate time to consider what alternative course to take. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.