Cabal v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 On 5 January 1999 Heerey J made orders in these applications including the following: "1. The question: 'Whether Tuesday 29 December 1998 was a "working day" within the meaning of reg 2.24(2)(a) of the Migration Regulations for the purposes of s 75(1)(b) of the Migration Act 1958 (Cth)' be answered: Yes. ... 5. Fix the applications for trial on Friday 8 January 1999." 2 The background to those orders is that the applicants initially applied for bridging visas under s 75 of the Migration Act 1958 ("the Act"). That section provides: "(1) If: (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and (b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa; the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period. (2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister." 3 It is not disputed that at all material times the applicants have been, and still are, in immigration detention. The initial application for bridging visas was refused and the applicants sought a review of that refusal by the Immigration Review Tribunal ("the Tribunal"). That application for review was dismissed by the Tribunal on 26 November 1998. Accordingly, the applicants were precluded by s 74(2) of the Act from making further application for bridging visas until 26 or 27 December 1998. Section 74 provides: "(1) Subject to subsection (2), if: (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and (b) the Minister refuses to grant the visa; the eligible non-citizen may make a further application for a bridging visa. (2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after: (a) if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa - the refusal; or (b) if the eligible non-citizen made an application for such review - the application is finally determined." 4 Regulation 2.24 of the Migration Regulations ("the Regulations") provides: "(1) For the purposes of paragraph 75(1)(a) (which deals with the class of bridging visa that may be granted to a non-citizen in immigration detention), the prescribed class of bridging visa is bridging E (Class WE). (2) For the purposes of paragraph 75(1)(b) of the Act (which deals with the time in which the Minister must make a decision on a bridging visa application), the prescribed period is: (a) in the case of an application by: (i) a non-citizen who has been immigration cleared; or (ii) a non-citizen who is an eligible non-citizen referred to in subregulation 2.20(6); 2 working days or; or (b) in any other case - 28 days." 5 On 28 December 1998, Mr Rodan, a principal of the applicants' solicitors, Erskine Rodan & Associates, delivered to an office at the Melbourne Airport, Tullamarine two bundles of documents, one in relation to each applicant. The contents of those bundles are indicated by the covering letter included in each. The letter in respect of the applicant, Mrs Cabal, had been prepared by Mr Michael Clothier, another principal of Erskine Rodan & Associates, on 24 December 1998 but was dated 28 December. It and the corresponding letter in respect of Mrs Karras together with the appropriate bundles of documents were left in the firm's library with the intention that they should be lodged with the Department of Immigration and Multicultural Affairs ("the Department") by Mr Rodan on Monday, 28 December. The covering letter in relation to Mrs Cabal was in these terms: "Please find enclosed the following documents: 1. Application for bridging E visa by Ms Teresa Pasini Cabal on Form 1008. 2. Transcript of evidence given in the Immigration Review Tribunal on 23 November 1998. 3. Decision of the Immigration Review Tribunal dated 26 November 1998. 4. Decision of Justice Ron Merkel of the Federal Court of Australia delivered on 23 December 1998. 5. Statements by Australian citizens of good standing in the Melbourne community concerning the applicant. 6. Details of media coverage concerning the continued detention of Teresa Pasini Cabal. We urge you to find, as did the Immigration Review Tribunal in its decision dated 26 November 1998, that Teresa Pasini Cabal is not wanted for any crimes in Mexico and apart from her method of gaining entry to Australia (which was arranged by her husband), she is otherwise a person of unblemished character. Even the cancellation of her substantive visa was only pursuant to section 140 (as a family unit member of another person whose visa was cancelled) and not because of any direct conduct on her part. She has never engaged in work since she was married and the evidence is overwhelming that she is simply a devoted mother of four young children. In a previous primary decision, MSI201 (now 207) was applied by the delegate requiring the decision maker to be satisfied that the grant of a bridging visa to the applicant would be 'in the best interests of the community'. Whilst we do not resile from our previous contention that such a criterion is unlawful, we have enclosed herewith numerous statements from well known members of the Australian community of outstanding integrity who have been in close personal contact with the applicant over the last two years. In addition, we have also enclosed numerous media reports which indicate quite clearly that the Australian community regards the continuing detention of a mother of four who is not wanted for any crimes by either Mexico or Australia, as lacking in compassion. It cannot be in the best interests of the Australian community that she remain in detention. In that regard, we would particularly ask you to distance yourself from the Minister's public statement at the National Press Club on 16 December 1998 (enclosed) that he believes that to respond to a request for release would '...evoke in Mexico the same sort of response that is evoked in Australia in relation to Christopher Skase'. This statement gives us grave cause for concern as to whether the Minister's delegate in this case (yourself) will be able to bring a fair mind to bear on the issues involved in determining whether the applicant should be granted a bridging visa. If any comparisons are relevant it would be with Pixie Skase and not Christopher and she has never been detained by the Spanish authorities and neither does she have four young children. Accordingly, I ask you to make a decision in good faith, treating Mrs Teresa Pasini Cabal no differently than any other asylum seeker who has entered the country under an assumed name and who has four young children who need her. I particularly refer you to the comments of Mr Justice Merkel in his reasons for judgment on 23 December 1998 when he said: 'It hardly needs to be said that the detention has deprived each applicant of her freedom in circumstances where neither is said to pose any threat or risk to the Australian community or be the subject of any allegations of having committed offences in Mexico or Australia. In each case, the IRT gave no real reason other than past deception to support its implicit conclusion of a real present risk of further flight. Whilst I have some doubt as to the justification for the IRT's conclusion, I have already observed it is not the role of the Court under the Act to engage in a merits review which would have been necessary if the decisions in the present cases were to be set aside. In the result it is only the legality, rather than the justice, of the IRT's decisions that have been upheld by the Court.' I also refer you to his Honour's comments about the sort of weight you should apply to 'immigration history' and, in particular, the need to look at prospective issues as well as past issues to determine the level of risk of the applicant failing to abide by visa conditions. I also refer you to his Honour's discussion of the issue of surety in this case. (See page 13 of the judgment.) It need hardly be said that my client is willing to offer a reasonable surety which her relatives in Mexico could be approached to provide and, given his Honour's comments, I believe it is a matter which you are obliged by law to consider. I therefore look forward to receiving your decision within two working days." 6 Each bundle of documents included a single page "Application for Bridging Visa E - Subclass 050" on Form 1008 which provided for answers to be furnished to some twenty questions. At the foot of the page there was provision for the signature of the applicant to be affixed below an acknowledgement in these terms: "21 If a Bridging Visa E is granted to me I understand that conditions will apply to this visa and that if I fail to abide by these conditions my visa may be cancelled and I will then become unlawful and would be liable to detention and removal under the Migration Act. In addition I understand that any security lodged as a condition on the visa may be forfeit." In fact, each of the applicants had signed the Form 1008 in blank on 23 December and the form was subsequently filled up by an employee of Erskine Rodan & Associates and dated 28 December 1998. 7 The bundles of documents were accepted at the Melbourne Airport by Mr Stefan Mirenda, a Senior Inspector with the Department. Mr Mirenda acknowledged receipt by endorsing a photocopy of each of the covering letters: "Application received at M A P by Stefan Mirenda on 28 December 1998." 8 Mr Rodan then returned to his office and at 12.21 pm on 28 December sent by facsimile to number 9235 3008, a service dedicated to the Compliance Section of the Department, a copy of each of the covering letters, one of which I have already set out. 9 Monday, 28 December 1998, as Heerey J has found in his reasons published on 5 January 1999, was a public holiday for all purposes. However, Tuesday, 29 December 1998 was an additional day for the purposes of the Australian Public Service General Employment Conditions Award 1995 (Cth). No officers of the Department were in attendance at the Compliance Section, Casselden Place on either 28 or 29 December 1998. 10 Early on the morning of 30 December 1998, Mr Hatzistavrou, a Compliance Officer with the Department, had brought to his attention one of the facsimile covering letters to which I have already referred. He thereupon telephoned the office of Erskine Rodan & Associates and spoke to a male person whom he believed to be Mr Clothier but who, in fact, was Mr Rodan. Mr Hatzistavrou advised his interlocutor that he had before him only pages 4, 5 and 6 of what had apparently been a six page facsimile transmission and asked to receive a further facsimile transmission of the first three pages together with a copy of each of the Form 1008 applications for a bridging visa. Mr Rodan then indicated that a full set of documents related to each applicant had been left with Mr Mirenda at Melbourne Airport. It is common ground that Mr Hatzistavrou said that the Department would make a decision (on the applications for bridging visas) by Monday, 4 January 1999. According to Mr Hatzistavrou, his interlocutor then said words to the effect "Okay, that's not a problem" and indicated that he would be on leave from that afternoon. Mr Rodan, however, denied that he said anything by way of acquiescing in the Department's making a decision after 30 December 1998 on his clients' second applications for bridging visas. On his version, he said nothing more than that he was leaving for a vacation that evening and he and Mr Hatzistavrou exchanged good wishes for the forthcoming holidays and the new year. I accept Mr Rodan's evidence on this aspect because, as I shall recount shortly, he and Mr Clothier had gone to some pains to bring about a situation in which the Department might fail to comply with the time limits imported by reg 2.24 thereby resulting, they believed, in the deemed grant to the applicants of a bridging visa. For Mr Rodan to have agreed to an extension of time in accordance with s 75(2) of the Act would have completely deprived his clients of the prospect of achieving that advantage contemplated by that strategem. I accept that Mr Hatzistavrou inferred from Mr Rodan's silence after he (Hatzistavrou) indicated that a decision would be made by Monday, 4 January, that Mr Rodan was not contending that the Department was obliged to decide the applications before then and, in particular, by the end of the day of their conversation, 30 December. However, the drawing of that inference by Mr Hatzistavrou does not support a finding that Mr Rodan, on behalf of his clients, agreed to extend time as contemplated by s 75(2) of the Act. That is particularly so when it is remembered that in his evidence Mr Hatzistavrou did not suggest that he understood any agreement to have been concluded with Mr Rodan. 11 After his conversation with Mr Rodan, Mr Hatzistavrou procured a facsimile transmission from Melbourne Airport of each of the Form 1008 applications for bridging visas which had been left with Mr Mirenda on 28 December. The facsimile transmissions from Melbourne Airport to Casselden Place occurred at 10.52 am and 11.10 am on 30 December. 12 At 5.30pm on 30 December, Mr Rodan caused the following facsimile message to be sent to Mr Hatzistavrou followed by copies of each of the three page covering letters dated 28 December 1998 to which I have already referred: "RE: MONSERRAT GONZALES KARRAS & TERESA PASINI CABAL I refer to the above and enclose copies of submissions which were served on Stefan Mirenda at Melbourne Airport on 28th December 1998 in regard to each applicant. These documents were sent to you and Ms Trucco by facsimile on 28th December 1998, and they are again provided. A copy of the facsimile report showing that six pages were forwarded on the 28th December 1998 to you and Ms Trucco is also provided." 13 Before departing for his vacation, Mr Rodan left a file note for Mr Clothier which contained these passages: "1. I served BVE Apps on Stefan Mirenda 28/12/98. Stefan acknowledged receipt. 2. I forwarded your submission (3 pages) to Ms Trucco & Mr Hatzistavrou. 3. Affidavits of Service are prepared for proceedings in the High Court or Federal Court. 4. Greg Hatzistavrou telephoned 30/12/98. Said he received Monserrat's submissions but they misplaced Teresa's submissions. I told him I had served Stefan Mirenda at M A P on 28/12/98 - Stefan would send it to him. He said he would be making a decision on this matter on Monday 4/1/99. 5. After 5.00pm I faxed another copy of Teresa's and Monserrat's three page submissions and a copy of facsimile report of 28/12/98 to Greg Hatzistavrou. 6. I drafted a letter of demand for KB to settle - copy on library table. 7. ... 8. Public Holidays Act (1993) + Victorian Government Gazette available for your use in calculating two working days. PS I believe I have set the scene for an interesting week to come." The reference to KB as the person to settle the draft letter was to Mr Bell QC who had already been retained as Senior Counsel for the applicants and had appeared before Merkel J on their earlier application to review the Tribunal's refusal of bridging visas. 14 On 31 December 1998 a copy of a decision made by Ms Trucco of the Department refusing the application of Mrs Karras for a Bridging Visa E was sent by facsimile transmission to the office of Erskine Rodan & Associates at 2.17 pm. A similar facsimile transmission of a decision by another departmental officer, Mr Edwards, refusing the application of Mrs Cabal was sent also to the office of Erskine Rodan & Associates at 3.21 pm on 31 December 1998. The offices of the applicants' solicitors were unattended throughout 31 December 1998. 15 On 3 January 1999 Ms Anderson, a solicitor employed by Erskine Rodan & Associates, wrote to the Manager, the Immigration Detention Centre, Maribyrnong, in these terms: "RE: MRS TERESA PASINI CABAL & MRS MONSERRAT GONZALES KARRAS On 28 December 1998, Mr Erskine Rodan of this firm lodged applications for Bridging Visas Class WE with Mr Stefan Mirenda at Tullamarine Airport in Melbourne. Mr Mirenda acknowledged receipt of those applications in writing. The airport is prescribed by the regulations as an Office of Immigration for the purposes of lodging these applications: reg 2.10(1)(b)(i). These applications were made pursuant to our client's entitlement under s 74 of the Migration Act to make further application for bridging visas not earlier than 30 days after, relevantly, the final determination of their applications for review of the first bridging visa decisions. Those applications were finally determined, as that phrase is defined in s 5(9) of the Migration Actby the decisions of the Immigration Review Tribunal on 26 November 1998. As the Migration Regulations require (see Schedule 1, Item 1305(3)(c), Mr Rodan informed Ms Maria Trucco, being a detention review officer for the State in which our clients are detained, of the applications at approximately 12.21 pm on 28 December 1998. The decision record served upon our clients and upon this office on 31 December 1998 indicates that the Minister's delegates treated our clients' applications as valid applications and dealt with them on that basis. Section 75(1) of the Migration Act deems (see the definition of 'is taken to' in s 5(23)) our clients to have been granted bridging visas if the Minister does not make a decision within the prescribed period, to grant or refuse to grant the bridging visas. The prescribed period is two working days: reg 2.24(2)(a). Section 5 of the Act defines 'working day' thus: 'in relation to a place, means any day that is not a Saturday, Sunday or public holiday in that place.' The 'place' insofar as our clients' applications are concerned, is Victoria. Monday 28 December 1998 was a gazetted public holiday in Victoria. Tuesday 29 December 1998 was not gazetted as a public holiday in Victoria. In accordance with s 36(1) of the Acts Interpretation Act 1901 (Cth), time runs for the purposes of calculation from 12 midnight on Tuesday 29 December 1998 and ends at 12 midnight on the second 'working day', namely 30 December 1998. No decision to grant or refuse to grant our client's applications for bridging visas had been made by 12 midnight on 30 December 1998. In those circumstances our clients are deemed by s 75(1) of the Migration Act to have been granted a bridging visa class WE, upon the conditions prescribed in Schedule 8 (clause 050.612 of the Migration Regulations) at midnight on 30 December 1998. Those conditions are: 8101 - no work 8201 - no studies for more than three months 8402 - report to Immigration within 5 days of being granted the visa and then report on the first working day of every week 8506 - notify Immigration two days in advance of change of address 8509 - make application for substantive visa within 5 working days Our clients have already complied with condition 8509. Our clients instruct us to inform you that they will comply with each of the above conditions when they are released. You are therefore detaining our clients unlawfully. We demand that you release them from immigration detention at the Maribyrnong IDC at 10.00 am on Monday 4 January 1999. A member of our firm will attend the IDC at Maribyrnong at that time for the purpose of accompanying our clients back to their home at 15 Glyndon Avenue in Brighton. We expect that you will have 'processed' both our clients for release by this time. Should you refuse to comply with this demand we will make application in the Federal Court of Australia on Monday 4 January 1999 for an order that you release our clients immediately." An application was in fact made to this Court as foreshadowed in that letter. 16 In the light of these facts and in consequence of Heerey J's decision on the preliminary point that Tuesday, 29 December was a working day within the meaning of Reg 2.24, four questions have been identified in argument as going to the validity of the applications or to when the period of two working days commenced to run. Mr Bell QC who appeared with Ms Mortimer of Counsel for the applicants accepted that, if any one of those questions is resolved adversely to the applicants, their contention that they were taken to have been granted a bridging visa on 31 December must fail. It is therefore convenient to consider each of those questions in order before turning to the further contention advanced on behalf of the first respondent ("the Minister") that the applicants agreed as contemplated by s 75(2) to an extension of time for the processing of their applications or waived the time limits imported by s 75(1) or are estopped from relying on those time limits. A.1. Were the applications for bridging visas invalid because they had been signed before answers had been supplied to all questions? 17 Regulation 2.07 provides: (1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa application charge (if any) payable in relation to an application; (c) other matters relating to the application. ... (3) An applicant must complete an approved form in accordance with any directions on it. 18 As already indicated the approved form for an application for a Bridging Visa E is Form 1008. 19 It is not disputed that the applicants here used the correct form. However, it has been submitted on behalf of the first respondent ("the Minister") that the requirement in the body of the form indicated by the words "Part A - to be completed by applicant" has not been complied with because each applicant had appended her signature to the foot of the form before answers to any of the preceding questions had been filled up. Mr Gunst QC who appeared with Mr McLeish for the Minister accepted that the body of the form can be filled up by a solicitor, interpreter or any other agent of the applicant but argued that for the form to be completed by the applicant he or she must sign it after the body of the form is otherwise complete. 20 I am unable to discern such a strict requirement in either Reg 2.07 or the terms of Form 1008 itself. A requirement of that degree of strictness would entail that any addition or alteration to the form after it has been signed by an applicant invalidates the application. In my view, the requirement that the form be signed by the applicant is designed to obtain an acknowledgement by the applicant in terms of cl 21 of the form which I have already quoted that any visa which may issue is subject to conditions and liable to cancellation if those conditions are not fulfilled. Accordingly, I do not accept that the form has not been completed by an applicant if it is filled up in whole or part by his or her authorised agent after it has been signed by the applicant.

051 (Bridging Visa (Protection Visa Applicant))" 27 Section 72(1) of the Act provides: "In this Subdivision: 'eligible non-citizen' means a non-citizen who: (a) has been immigration cleared; or (b) is in a prescribed class of persons; or (c) the Minister has determined to be an eligible non-citizen." 28 By s 5 of the Act "immigration cleared" has the meaning given by sub-s 172(1) which, in turn, provides, so far as is relevant: "A person is immigration cleared if, and only if: (a) the person: (i) enters Australia at a port; and (ii) complies with section 166; and (iii) leaves the port at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention;" 29 Section 166(1) of the Act is in these terms: "Subject to subsections 167(3) and (4), this section and sections 168 and 169, a person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay: (a) show a clearance officer: (i) if the person is a citizen (whether or not the person is also the national of a country other than Australia), the person's Australian passport or prescribed other evidence of the person's identity and Australian citizenship; and (ii) if the person is a non-citizen, evidence of the person's identity and of a visa that is in effect and is held by the person; and (b) give the clearance officer any information required to be given by this Act or the regulations." 30 It was submitted on behalf of the Minister that, because the applicants had, on entering Australia, presented Dominican passports issued in names which the applicants later conceded were not their true names, they had not complied with s 166 by showing a clearance officer evidence of their true or actual identity. In my view, s 166 is a machinery provision designed to indicate what it is that a person presenting for entry to Australia is required to show a clearance officer. The sufficiency, truth or authenticity of what is shown does not go to whether the person has been "immigration cleared" but bears rather on whether his or her visa is liable to be cancelled under, e.g. s 116. The contrary view would entail that, before any application for a bridging visa could be granted under s 73, the Minister would have to be satisfied, amongst other things, that the applicant had presented to the immigration clearance officer evidence which attested to his or her true identity. I would only impose on a statutory decision-maker the burden of undertaking an inquiry of that kind if the language of the legislation reposing the decision-making power intractably required it. Accordingly, I would answer the third question which I have identified, yes. 4. Was a detention review officer informed of the applications and, if so, when? 31 I have already set out, in my discussion of Question 3, Item 1305 of Schedule 1 to the Regulations. The need for a detention review officer be informed of the application is there framed in a way to require something in addition to the making of an application. If the detention review officer were to be taken to have been informed of the application at the moment of its making, e.g. by lodging it at an office of Immigration as required by Reg 2.10, there would be no necessity for the inclusion if Item 1305(3)(c) of the requirement that a detention officer be informed of the application. 32 The conditions specified in Item 1305 of Schedule 1 to the Regulations are made essential to the existence of a valid regulation by s 46(1)(b) of the Act which provides that an application for a visa is valid if, and only if, it is made in the way required by s 45(2). That sub-section in turn stipulates: "Without limiting subsection (1), the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa of a specified class; or (c) an application in specified circumstances for a visa of a specified class." 33 The evidence indicates that, at the relevant time, there were two detention review officers appointed for the State of Victoria. They were Mr Reid and Mr McLeod, both of whom were attached to the Compliance Section. In my view, Item 1305(3)(c) of Schedule 1 to the Regulations required one or other of those officers to be "informed" of the existence of the applications in the sense of being given knowledge, or being apprised, of them. The notion of such informing as essential to the validity of an application for a bridging visa is consistent with the regulatory scheme governing visas of that class, including the strict time limits applied by Reg 2.24 to applications by persons in Immigration detention. 34 It is true that an applicant may be unaware of the identity of a designated detention review officer and should not be taken thereby to be deprived of the ability to inform the detention review officer of his or her application. In those circumstances, the applicant can make the application at an office of Immigration and rely on the presumption that it will come to the knowledge of a detention review officer for the relevant State or Territory in the ordinary course of administration of the Department. However, that "informing" of the detention review officer will rarely be simultaneous with, or closely attendant on, the making of the application at an office of Immigration. For example, an application might legitimately be made at an office of Immigration in Darwin and without any departmental dereliction of duty, take some days to be brought to the notice of a detention review officer for the State of Victoria. In the present case I infer that no detention review officer was on duty on either 28 or 29 December and that such officer was informed of the application, as the Minister concedes, on the morning of 30 December. 35 There was tendered in evidence on behalf of the applicants, by leave after they had closed their case, a Migration Series Instruction issued by the Department to facilitate the discharge of duties and functions of detention review officers. However, I can discern in that document nothing which made it reasonable to expect Mr Mirenda, on a public holiday, 28 December, to bring the existence of the applications there and then to the notice of an off-duty detention review officer. 36 For these reasons, I have been led to conclude that valid applications were not made until 30 December and, if that day is excluded as required by s 36(1) of the Acts Interpretation Act 1901, the period of two working days affixed by Reg 2.24 did not commence to run until 31 December. B. AGREEMENT TO EXTEND TIME OR WAIVER OF TIME LIMITS ON MINISTER'S DECISION 37 The conclusion which I have reached on Question 4 makes it unnecessary for me to consider whether the applicants agreed to extend time under s 75(2) or waived or were otherwise estopped from invoking the time limits imposed by reg 2.24(2)(a). However, it will be apparent from my findings of fact, based on the evidence of Mr Rodan and Mr Hatzistavrou, that I do not consider that any of those contentions advanced on behalf of the Minister has been made out.

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Judgment (16 paragraphs)

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