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[2002] FCA 261
Federal Court of Australia
1998-07-31
Cooper J, Stay Certificate J, Stay Visa J, French J
Original judgment source is linked above.
REASONS FOR JUDGMENT Introduction 1 The present proceedings are instituted by Brian Gerald James Goldie, an unlawful non-citizen, who was at the time, in custody in Western Australia awaiting trial on charges of stealing as a servant. The proceedings in this Court relate to circumstances surrounding the refusal, by a delegate of the Minister for Immigration and Multicultural Affairs, to grant Goldie a criminal justice stay visa which might have enabled him to secure his release upon bail pending the hearing of the charges. The action, brought against the Commonwealth of Australia, the Minister for Immigration and Multicultural Affairs and an officer of the Department, Donna Riordan, raises allegations of ultra vires action, misfeasance in public office, decision-making actuated by improper purposes, negligence and actual bias. As may be seen from the history of this matter, the present application is part of an on-going and convoluted, and to some degree repetitious, history of litigation by Goldie in relation to his status under the Migration Act 1958 (Cth). Factual History and History of Prior Proceedings 2 Brian Gerald James Goldie was born in Scotland on 3 October 1967. He first came to Australia on 24 February 1992 on a visitor visa. He left Australia on 20 July and returned on 4 December 1992 when he was granted an entry permit permitting him to remain for six months. He made application for a Permanent Resident (Spouse (After Entry)) Entry Permit on 17 May 1993. Pending resolution of that application he was eventually granted an Extended Eligibility Temporary Entry Permit on 28 January 1994. His application for a Permanent Resident Entry Permit was treated as an application for a Transitional (Permanent) Visa from 1 September 1994 pursuant to transitional regulations. After a long and tortuous history, which is set out in Goldie v Commonwealth of Australia [2000] FCA 1873, his application for permanent residence in Australia was refused on 20 May 1997. He applied to the Administrative Appeals Tribunal ("the AAT") for review of that decision on 3 July 1997. On 18 February 1998, the AAT affirmed the decision to refuse the grant of a permanent visa. This affirmation was based on character grounds - Goldie v Minister for Immigration and Multicultural Affairs [1998] AATA 95. 3 At that time an officer of the Department formed the view that Goldie did not hold a valid visa and was therefore an unlawful non-citizen and that he was required to detain him pursuant to s 189(1) of the Migration Act. This was a mistaken view because, at the relevant time, Goldie was the holder of a Bridging Visa B originally granted to him to enable him to remain in Australia pending the resolution of his application for permanent resident status. That Bridging Visa remained in effect for twenty-eight days after notification of the decision of the AAT. On 27 February 1998, he was granted a Bridging Visa Class E. A further such visa was granted on or about 20 May 1998. On 19 June 1998, another Bridging Visa Class E was issued to him. On 27 August 1998, a warrant issued for Goldie's arrest on charges of the theft of money from his former employer, Fluor Daniel. 4 On 1 June 1998, Goldie commenced proceedings in this Court against the Commonwealth, the Minister for Immigration and Multicultural Affairs and Michael Cain, an officer of the Department of Immigration and Multicultural Affairs. He claimed, inter alia, damages for false imprisonment and assault arising out of his unlawful arrest and detention between 24 and 27 February. He also claimed damages for misfeasance in public office and negligence in relation to advice from the Department that he was an unlawful non-citizen and that he should apply for a Bridging Visa E rather than a Bridging Visa B. Other declaratory relief was claimed. He also claimed interlocutory relief directing the Minister to remove the condition on any bridging visa that he not be permitted to work and that a security of $10,000 which had been lodged by Ms Valerie Finiss be returned. The claim for interlocutory relief was dismissed by Cooper J on 31 July 1998, no serious question to be tried having been identified - Goldie v Commonwealth of Australia (unrep, Fed Court, 31 July 1998, Cooper J) (Application QF51 of 1998). The Court's records indicate that the substantive application stood dismissed from 10 November 1998 by operation of a springing order made by Cooper J on 30 October 1998. 5 Goldie's application for review of the AAT decision which had affirmed the delegate's decision to refuse him a permanent resident visa was dismissed by Cooper J on 31 March 1999 - Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 349 (Application QG 9 of 1998). However an appeal against that decision was allowed by a Full Court on 14 September 1999 - Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 (Application Q115 of 1999). The matter was remitted to the AAT to be heard and determined according to law. The AAT dismissed the application on 17 December 1999 under s 42A(2) of the Administrative Appeals Tribunal Act. This followed the withdrawal of Goldie's counsel after the refusal of an adjournment sought on the basis that he had been supplied with documentary material earlier in the week which it was not possible to properly consider prior to the hearing. An application to reinstate that application was dismissed on 11 June 2001 by the AAT on the basis that it had no jurisdiction to reinstate it - Goldie v Minister for Immigration and Multicultural Affairs [2001] AATA 513. 6 Goldie was arrested in New South Wales on 15 February 2000 on charges of stealing as a servant in Western Australia. He was taken into custody, apparently on the application of a Detective Zadkovich from Western Australia. On 17 February he was extradited from New South Wales to Western Australia to answer three counts of stealing as a servant. He was granted bail on 2 March 2000. He was remanded in the Perth Court of Petty Sessions on 16 March 2000, with bail renewed at $50,000 by way of personal bond and a surety of $30,000 together with a condition that he surrender his passport. A reporting condition was imposed. 7 According to Goldie, Detective Zadkovich told him that there was no way he would be granted a visa and released to bail. Zadkovich also said that Ms Riordan had told him that Goldie had breached various visa conditions and that when the Western Australian authorities were finished with him immigration authorities would make sure he was immediately deported. Zadkovich also told him that Ms Riordan had said she would be attending his bail application and would give evidence to make sure that he was kept in custody. 8 A letter was sent enclosing an application for a fresh Bridging Visa E on 22 March 2000. It was refused by Ms Riordan on 28 March 2000 on the basis that he did not meet the character requirements under s 501(6)(c)(ii) of the Act. On 31 March 2000, Goldie again applied to the AAT, this time for review of Ms Riordan's decision to refuse him the grant of a Bridging Visa E. The AAT however affirmed the decision to refuse him the grant of that visa on 12 June 2000. An appeal to this Court against that decision was dismissed on 22 December 2000 - Goldie v Minister for Immigration & Multicultural Affairs [2000] FCA 1922 (Application W102 of 2000). 9 Goldie commenced further proceedings in this Court on 7 April 2000 in Application W53 of 2000 naming the Commonwealth, the Minister and seven officers of the Department of Immigration and Multicultural Affairs as respondents. Ms Riordan was named as ninth respondent in those proceedings. Goldie claimed a remedy in the nature of certiorari to quash the decision of 28 March refusing his application for a Bridging Visa E. That relief was sought upon the basis that Ms Riordan was operating under the influence of "actual bias" and that her decision was made for improper purposes. Prerogative relief was refused having regard to the pending proceedings in the AAT which afforded full merits review. Goldie also alleged, against Ms Riordan, misfeasance in public office in relation to her refusal to grant him a Bridging Visa E. That claim was dismissed in Goldie v Commonwealth of Australia [2000] FCA 1873 at pars [76] - [78], a judgment delivered on 22 December 2000 the same day as judgment in W102 of 2000. An appeal against that decision to the Full Court has been heard. 10 On 25 May 2000, the Director of Public Prosecutions for Western Australia issued a State criminal justice stay certificate pursuant to s 148 of the Migration Act 1958. The certificate was in the following terms:
"STATE CRIMINAL JUSTICE STAY CERTIFICATE MIGRATION ACT 1958 (CTH) SECTION 148 WHEREAS BRIAN GERALD JAMES GOLDIE a citizen of United Kingdom, born on 3 October 1967, is an unlawful non-citizen for the purposes of the Migration Act 1958 ("the Act"). AND WHEREAS BRIAN GERALD JAMES GOLDIE is to be, or is likely to be, removed or deported from Australia; AND WHEREAS I consider that the temporary presence of BRIAN GERALD JAMES GOLDIE in Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State of Western Australia, namely three counts of stealing as a servant; AND WHEREAS I consider that satisfactory arrangements have been made to make sure that the costs of keeping BRIAN GERALD JAMES GOLDIE in Australia will be met by the State of Western Australia; NOW THEREFORE I, Robert Cock QC, Director of Public Prosecutions for Western Australia a person duly appointed by the Commonwealth Attorney-General as an authorised official for the State of Western Australia for the purposes of Division 4 of Part 2 of the Act, hereby certify, pursuant to s 148 of the Act, that the presence of BRIAN GERALD JAMES GOLDIE in Australia is required for the administration of criminal justice by Western Australia." 11 Goldie's bail was revoked on 14 April 2000. In July 2000, he applied to the Supreme Court of Western Australia for his release on bail. On 14 July 2000, Miller J refused that application. A subsequent application based on changed circumstances was refused by Roberts-Smith J on 16 May 2001. It appears from the reasons for judgment in that case that an indictment was drawn up on 15 February 2001 setting out four counts of stealing as a servant from Fluor Daniel Pty Ltd, an amount totalling about $417,000 - Goldie v The Queen [2001] WASC 153 (16 May 2001). 12 On 18 July 2000, Goldie sent a fax to the Department of Immigration and Multicultural Affairs. He requested that consideration be given to the grant of a criminal justice stay visa or that the Bridging Visa E application made in March 2001 be reconsidered. He said that when he had attended on his unsuccessful bail application before Miller J on 14 July 2000 it had been indicated by the judge that bail could be a strong possibility if he were granted a visa, whether a criminal justice stay visa or any other type of visa. 13 In response to Goldie's request, Donna Riordan, on behalf of the State Director, wrote to him on 18 July 2000 advising that he was not the eligible applicant for a criminal justice stay visa. The applicant for such a visa, it was said, would be the Director of Public Prosecutions. She suggested he might ask the Director of Public Prosecutions "…to consider submitting an application on your behalf". She also pointed out that she was unable to review the decision to refuse him a Bridging Visa E. 14 Goldie responded to Ms Riordan on 21 July 2000 by a fax in which he argued that "As the subject of the Criminal Justice Stay Certificate… I then satisfy the criteria, and become the applicant, as prescribed by s 157 of the Migration Act 1958, that is that a Criminal Justice Stay Certificate is in force. Consideration then falls under s 158 of the Migration Act 1958 as to whether the visa should be granted by the Minister". He referred to the circumstances of his continuing custody and the likely delay before his case was to come to trial and said: "With those submissions in mind I respectfully respect that further consideration be given to the grant of a Criminal Justice Stay Visa to permit my release on bail as the lack of a visa is the primary reason that I continue to be detained." 15 On 27 September 2000, Mr Alex Palumbo, a legal practitioner, wrote to the Minister for Immigration and Multicultural Affairs on behalf of Goldie complaining of ongoing bias and advising that he had been instructed to give consideration to whether Goldie should institute fresh proceedings against "…both the Department and Ms Riordan for continued bias and misfeasance of public office". The letter went on to request the Minister to grant or cause to be granted to Goldie a criminal justice stay visa. 16 A preliminary hearing in relation to the criminal charges against Goldie was held in the Perth Court of Petty Sessions on 16, 17 and 18 October 2000. A submission was made that the charges be dismissed. A decision rejecting that submission was delivered on 25 October 2000. In anticipation of a decision on the submission Ms Riordan signed a document, that day, entitled Request for Non-Officer to Hold in Immigration Detention. The request was given to officers of the Compliance Section of the Department of Immigration and Multicultural Affairs in order that they might have Goldie detained under s 189 of the Migration Act in the event that criminal charges against him were dismissed or withdrawn. The relevant parts of the text of the request were as follows: "I, Donna Riordan, am an officer for the purposes of the Migration Act 1958. Brian Gerald James Goldie is liable to be held in immigration detention under the Act as he is known or reasonably suspected to be an unlawful non-citizen. Under s 5 of the Act a person is in immigration detention, if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition ("a place of immigration detention"). As an officer for the purposes of the Act, I hereby request you to hold him on my behalf in Central Law Courts Detention Centre a place of immigration detention." 17 On the same day Goldie's legal representative, Mr Palumbo, telephoned Ms Riordan alleging against her that she had a conflict of interest in signing the authority to hold order having regard to her prior refusal of the Bridging Visa E. According to the file note he asserted that her advice about Goldie's application for the criminal justice stay visa application was wrong. He demanded that she send him a copy of that advice. He also said he was putting her on notice that he would be taking civil action against her in regard to her "abuse of authority and conflict of interest". The substance of this conversation appears to be supported by Goldie's own affidavit in these proceedings in which he says that his lawyer called Ms Riordan to ask, why if he were discharged he was being detained by Immigration. He also said his lawyer raised a possible conflict of interest issue. I make no finding as to whether the conversation with Mr Palumbo occurred precisely as recorded. It is not necessary to do so and he has not had any opportunity to comment upon the accuracy of Ms Riordan's file note. 18 The present proceedings were instituted on 2 November 2000. Orders sought against all the respondents included damages for misfeasance in public office, unlawful detention, negligence and/or negligent misstatement, general damages, punitive and aggravated damages and exemplary damages. A declaration was sought against the Minister that Goldie satisfied the criteria for the grant of a criminal justice visa from 23 May 2000. An order was also sought in the nature of mandamus requiring the Minister to consider the application for a criminal justice visa according to law. An amended application and amended statement of claim were filed on 13 November 2000. 19 On 15 November 2000, a delegate of the Minister, Mr Dan Crennan, the Director, Character Section of the Department of Immigration and Multicultural Affairs, gave consideration to and decided not to grant a criminal justice stay visa to Goldie. A copy of the minute provided to the delegate before he made his decision and the endorsement of his decision on that minute was exhibited in these proceedings to an affidavit of Mr Peter Corbould, a solicitor employed in the Perth office of the Australian Government Solicitor and sworn on 15 November 2000. The purpose of the minute was described as: "Consideration of grant of a State Criminal Justice Stay Visa to Mr Brian Gerald James Goldie, who is required in Australia for the purposes of the administration of criminal justice in relation to an offence against a law of the State of Western Australia pursuant to section 148 of the Migration Act 1958." 20 The minute then went on under the heading "BACKGROUND" to set out the provisions of ss 157, 158 and 159 of the Migration Act. Under the heading "ISSUES" the following appeared: "CRITERION AT S 158(a): 4 For the purposes of s 157 of the Act, the Western Australia Director of Public Prosecutions (DPP) has issued a State Criminal Justice Stay Certificate. Refer to Attachment A. . CRITERION MET/NOT MET CRITERION AT S 158(b)(i): 5 In October 1994 Mr Goldie's wife was granted a protection order against him pursuant to the Domestic Violence (Family Protection) Act 1989. However, in November 1994 Mr Goldie was granted an interim protection order against his wife pursuant to the same act and granted a protection order against his wife in December 1994. 6 In July 1997 his then defacto informed DIMA that her relationship with Mr Goldie had ended because of Mr Goldie's admission of guilt in relation (sic) allegations of fraud committed in Scotland and that she had not informed DIMA earlier because of her fear of his "violent and vindictive temperament". Refer to page 7 Attachment B. (A handwritten note appears in the following terms - Noted - however there is no suggestion that Mr Goldie has not or will not abide by the requirement of the 10/94 Protection order.) . CRITERION MET/NOT MET CRITERION AT S 158(b)(iii) 7 Mr Goldie, a citizen of United Kingdom, first arrived in Australia on 24 February 1992. He became unlawful on 20 December 1998. A spouse application was refused in May 1997 on character grounds on the basis of outstanding allegations of fraud in the United Kingdom. The decision was affirmed by the AAT but set aside by the Full Federal Court on a technicality. The matter was relisted for hearing at the AAT but was dismissed when the applicant failed to appear at the hearing. By that time he was facing further fraud charges in West Australia and his whereabouts unknown for some time. He was in breach of his BVE conditions. 8 A BVE application made in March 2000 was refused under section 501 and the decision upheld by the AAT on 12 June 2000. At the AAT hearing, the AAT member said of Mr Goldie "his track record strongly suggests that he is likely to act dishonestly at the expense of the Australian community of (sic) he finds himself free to do so." 9 Mr Goldie is required in Western Australia to stand trial in respect of 3 counts of Stealing as a Servant for amounts over $400,000. He also has outstanding arrest warrants for large scale fraud offences in the United Kingdom, being 57 charges of fraud totalling Ł93,374. 10 The DPP state that Mr Goldie is presently remanded in custody in Perth. 11 The DPP has not requested a Criminal Justice Stay Visa for Mr Goldie at this stage. The DPP has stated that they consider that Mr Goldie will abscond if he is granted such a visa. (A handwritten note appears in the following terms - No but CJV decision is not one for the DPP) 12 Mr Goldie's solicitor has written to the Minister on his behalf requesting grant of a Criminal Justice Stay Visa stating that an application for bail in the Supreme Court is pending and that it can only properly be considered by the court if Mr Goldie is a visa holder. 13 The DPP state in the Criminal Justice Stay Certificate that satisfactory arrangements have been made to make sure that the costs of keeping Mr Goldie in Australia will be met by the State of Western Australia. 14 In March 1998 Mr Goldie's legal adviser notified DIMA that Mr Goldie has lost has (sic) passport. DIMA was given unofficial advice in August 1998 that Mr Goldie was issued with a replacement passport by the United Kingdom High Commission. (A handwritten note appears in the following terms - Noted) 15 Mr Goldie has a history of not complying with his visa conditions nor cooperating with DIMA. His whereabouts were unknown for some time and he was living under an assumed name prior to his location in NSW and extradition to Western Australia. The DPP consider that he is likely to abscond. Given his passport history it would appear unlikely that he would cooperation (sic) with DIMA officers for removal. Refer to attachment B. (A handwritten note appears in the following terms - Noted) 16 There does not appear to be any other matters that the Minister should consider relevant to the grant of a Criminal Justice Stay Visa to Mr Goldie. . CRITERION MET/NOT MET 17 I am satisfied/not satisfied that all the above criteria have been met/not been met and I consider that a Criminal Justice Stay Visa should/should not be granted to Mr Goldie, having due regard to the fact that all relevant requirements as set out in sections 157 and 158 of the Act have/have not been met. (Signature) Dan Crennan Director Character Section Position No 272 15 November 2000 (The following handwritten note appears at the end of the text of the Minute: Given Mr Goldie's failure to abide by the conditions of his BVEs issued in February and May 1998, in particular his failure to notify change of address as required, and given the DPP's assessment that Mr Goldie is likely to abscond if released, I do not consider that he should be granted a Criminal Justice (Stay) Visa. (Signature) 15 Nov 2000" 21 On 23 November 2000, Senator Kay Patterson, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs wrote to Mr Palumbo. The letter was by way of a reply to his letter of 27 September 2000 to the Minister. After responding to and rejecting allegations that an employee of the Department had falsified witness statements Senator Patterson referred to Goldie's request for a criminal justice stay visa. She advised that a criminal justice stay visa, unlike other visas, "is not applied for". She said: "The Minister may consider the grant of a Criminal Justice Visa if a Criminal Justice Stay Certificate or Criminal Justice Stay Warrant is in force. However, it is at the Minister's absolute discretion whether or not to grant a Criminal Justice Visa, after satisfying himself that the criteria for it have been met (ss 158 and 159 of the Act). If a Criminal Justice Stay Visa is issued, it is automatically cancelled when the Criminal Justice Stay Certificate to which it relates, is cancelled by the issuing agency. On 15 November 2000, the Minister's delegate considered the grant of a Criminal Justice Stay Visa for Mr Goldie and refused the visa as Mr Goldie did not meet the requirements of s 158(b)(iii) of the Act." 22 At a directions hearing on 16 November 2000, the present proceedings were stood over to enable Goldie's then counsel to consider the implications for the proceedings of the decision taken on 15 November 2000 by Mr Crennan. It was also indicated by the Court at that time that interlocutory relief claimed in the application would not be granted. 23 On 22 December, Goldie was given liberty to further amend his application and statement of claim. Subsequent directions were made by Nicholson J on 3 April 2001 relating to discovery of documents and refusing leave to issue a subpoena. In the event the matter was set down for hearing on 25 July 2001. On 18 July, a motion for leave to issue subpoenas to three named persons was dismissed. The matter came on for hearing on 25 July. 24 On 19 September 2001, Goldie's appeal to the Full Court against the decision of 22 December 2000 which had dismissed his application for review of the AAT decision affirming Ms Riordan's decision to grant him a Bridging Visa E was dismissed - Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318. 25 For completeness it may be noted that Goldie, in the meantime, applied to the High Court for the issue of constitutional writs of prohibition and mandamus directed to the Minister and also to Geoffrey Tunbridge, an officer of the Department. The applications related to the decision of 27 February 1998 that he satisfied the criteria for the issue of a Bridging Visa E. The writ of mandamus sought would direct the Minister that the surety bond deposit required in respect of the grant of the Bridging Visa E on 27 February be returned to Ms Finiss. The application for orders nisi in respect of these writs was rejected by Kirby J on 3 September 2001. The Present Application 26 The reamended application in the present proceedings claims as against all respondents, damages for misfeasance in public office, for unlawful detention, for negligence and/or negligent misstatement, general damages, punitive and aggravated and exemplary damages. As against the Minister, a declaration is sought that Goldie satisfied the criteria in s 157 of the Migration Act for the grant of a criminal justice visa with effect from 23 May 2000. Also sought is a declaration that he is the correct applicant for a criminal justice visa and that Ms Riordan acted beyond the power conferred on her by the Minister and that her conduct was unlawful. 27 Under the heading "Declarations and Injunctions", the reamended statement of claim filed on 21 November 2000 pleads the execution of a criminal justice stay certificate on 23 May 2000 by the Western Australian Director of Public Prosecutions, the sending by Goldie of a facsimile applying for a criminal justice visa on 18 July 2000 and the reply which he received from Ms Riordan on 20 July 2000 informing him that he was not the correct applicant for a criminal justice visa. The pleading then asserts that Ms Riordan was not authorised by the Minister for the purposes of applications for criminal justice visas. Reference is made to the further facsimiles sent by Goldie to Ms Riordan on 21 July 2000 and the absence of a response thereto. These matters are relied upon to support a claim for a declaration that Goldie satisfies the primary criteria for the grant of a criminal justice stay visa pending resolution of the criminal charges in Western Australia. Ms Riordan is identified as a respondent in W53 of 2000 in respect of which judgment was delivered on 22 December 2000 after the filing of the reamended statement of claim. The letter sent by Goldie's counsel on 27 September 2000 to Ms Riordan is pleaded and it is said that she ought to have stood aside in respect of his migration matters "to prevent further perception of bias". An order is sought restraining Ms Riordan from any further dealings or involvement with Goldie's migration status or applications. 28 Under the heading "Misfeasance in Public Office" the reamended statement of claim refers to Goldie's arrest in New South Wales on 15 February 2000, the issue by Ms Riordan of the Authority to Hold in Detention on 15 February 2000, his extradition to Perth on 18 February 2000, the granting of bail on 2 March 2000, his application for a Bridging Visa E on 22 March 2000 and the signing by Ms Riordan on 24 March 2000 of an Authority to Hold in Detention to prevent his release on bail. It is then said that on or about 28 March 2000, Ms Riordan refused his application for a Bridging Visa E, that he applied for an order of review in the AAT and for judicial review of that decision in W53 of 2000. The proceedings in W53 of 2000 having involved allegations of bias and misfeasance in public office against Ms Riordan, it is said she ought to have withdrawn from any further involvement in his migration status or applications. The pleading then revisits the history of the application for a criminal justice visa, the alleged failure by Ms Riordan to consider his application according to law and the absence of any authority on her part for the purposes of applications for criminal justice visas. On this basis Goldie seeks a declaration that she acted beyond power and that her conduct was unlawful and that as a result of her unlawful positive and intentional acts he has suffered harm and loss. 29 Under the heading "Decision for Improper Purposes" he pleads the signing by Ms Riordan of the "Authority to Hold in Detention" on or about 28 October 2000 and asserts that she did this in order to prevent his release from custody and that her signing the Authority to Hold in Detention was said to be without regard to the merits of his case and without giving him a right of response or submission. Again it is asserted that as a result of unlawful, positive and intentional acts on her part he suffered harm and loss. 30 Under the heading "Negligence" it is said that by reason of the negligence of the respondents, Goldie was detained from 23 May 2000 as an unlawful non-citizen notwithstanding that he satisfied the primary criteria for a criminal justice visa which would have permitted his release from custody on bail. Ms Riordan is said to have failed to take adequate steps to verify his entitlement to a criminal justice visa on or about 18 July 2000 and that she negligently failed to pass the application to an appropriately authorised delegate of the Minister for consideration according to law. 31 "Actual bias" is raised against Ms Riordan, under a separate heading, on the basis of her signing of the Authority to Hold in Detention for the purpose of preventing Goldie's release from custody if his application to have the State matters dismissed were successful. Statutory Framework 32 The Migration Act 1958 (Cth) as it stood at the relevant time for the purpose of these proceedings makes provision for the grant of visas. Part 2 of the Act is generally concerned with the control of the arrival and presence of non-citizens. Division 3 of Part 2 deals with visas for non-citizens. The Minister may grant a visa permitting a non-citizen to travel to and enter Australia and/or to remain in Australia (s 29). There are various classes of visa prescribed by regulations and provided for directly in the Act (s 31). The regulations may also prescribe criteria for visas of specified classes (s 31(3)). There is a class of temporary visa to be known as criminal justice visas which are granted under subdivision D of Division 4 of Part 2 (s 38). 33 General provisions for applications for visas are contained in subdivision AA of Division 3 (ss 44 to 51). By s 45, subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. There are provisions for visa application charges (ss 45A to 45C) and the necessary conditions for a valid visa application (s 46). The Minister is required to consider a valid application for a visa (s 47). These provisions and others in subdivision AA establish a comprehensive procedure for visa applications for non-citizens. However, and significantly for present purposes, they do not apply to criminal justice visas. Section 44(1) provides: "44(1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1) do not apply to criminal justice visas." 34 Division 4 of Part 2 of the Act is entitled "Criminal justice visitors". Originally designated Division 3, it was introduced into the Act by the Migration Reform Act 1992 and came into effect on 1 September 1994. The Division is said to be enacted so that "…if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration" (s 141). Subdivision B provides for criminal justice entry certificates signed by the Commonwealth Attorney-General or relevant State official as the case may be, certifying that the presence of a non-citizen is required in Australia for the purpose of, inter alia, the administration of criminal justice (ss 145 and 146). 35 Subdivision C deals with persons already in Australia and not entitled to be here, that is unlawful non-citizens who are or are likely to be removed or deported. So the Commonwealth Attorney-General or the relevant State official, as the case may be, can sign a criminal justice stay certificate certifying that the stay of a non-citizen's removal or deportation is required for the administration of criminal justice (ss 147 and 148). While a criminal justice stay certificate about a non-citizen is in force the non-citizen is not to be removed or deported (s 150). 36 These provisions are enacted in the public interest in the administration of criminal justice. They are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen. Of themselves they do not operate to displace the requirement that an unlawful non-citizen be detained (s 189). This is expressly provided for in s 152: "152 If: (a) a criminal justice stay certificate or a criminal justice stay warrant about a non-citizen is in force; and (b) the non-citizen does not have a visa to remain in Australia; the certificate or warrant does not limit any power under this Act relating to the detention of the non-citizen." Also relevant for present purposes is s 154 which provides: "154 An officer is not liable to any civil or criminal action for doing in good faith, or failing in good faith to do, any act or thing for the purpose of exercising a power under this Act to keep a person who is the subject of a criminal justice stay certificate or criminal justice stay warrant in immigration detention." 37 An unlawful non-citizen who is the subject of a criminal justice stay certificate only ceases to be an unlawful non-citizen if issued with a criminal justice stay visa. A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen (s 13(1)). A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen (s 14(1)). 38 Subdivision D of Division 4 of Part 2 provides for criminal justice visas. There are criminal justice entry visas and criminal justice stay visas (s 155). A criminal justice visa permitting a non-citizen to remain temporarily in Australia is to be known as a criminal justice stay visa (s 155(2)). Section 156 establishes, as the criteria for a criminal justice entry visa, that a criminal justice entry certificate about the non-citizen is in force. Section 157 establishes criteria for the grant of criminal justice stay visas as follows: "157. A criterion for a criminal justice stay visa for a non-citizen is that either: (a) a criminal justice stay certificate about the non-citizen is in force; or (b) a criminal justice stay warrant about the non-citizen is in force. Section 158 establishes criteria for criminal justice entry and stay visas respectively: 158. The criteria for a criminal justice visa for a non-citizen are, and only are: (a) the criterion required by section 156 or 157; and (b) the criterion that the Minister, having had regard to: (i) the safety of individuals and people generally; and (ii) in the case of a criminal justice entry visa, arrangements to ensure that if the non-citizen enters Australia, the non-citizen can be removed; and (iii) any other matters that the Minister considers relevant; has decided, in the Minister's absolute discretion, that it is appropriate for the visa to be granted." 39 The procedure for obtaining a criminal justice visa is referred to in s 159: "159(1) If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non-citizen is in force, the Minister may consider the grant of a criminal justice visa for the non-citizen. (2) If the Minister, after considering the grant of a criminal justice visa for a non-citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion: (a) grant it by causing a record of it to be made; and (b) give such evidence of it as the Minister considers appropriate." 40 Section 160 authorises regulations to provide that criminal justice visas are subject to specified conditions. 41 The effect of a criminal justice stay visa is set out in s 161(2): "161(2) A criminal justice stay visa for a non-citizen: (a) is permission for the non-citizen to remain in Australia while it is in effect; and (b) if the non-citizen is in immigration detention, entitles the non-citizen to be released from that detention. (3) A criminal justice visa for a person does not prevent the non-citizen leaving Australia. (4) Subsection (3) does not limit the operation of any order or warrant of a court." The Evidence 42 Goldie relied upon his own affidavit sworn 3 July 2001 which was admitted subject to relevance and a book of documents, the authenticity of which were not in issue. The respondents relied upon the affidavit of Peter John Corbould sworn 17 July 2001. Goldie also called as a witness Robert John Koutsoukos, an officer of the Department of Immigration and Multicultural Affairs. His object in examining Mr Koutsoukos was to obtain evidence of actual bias on the part of the Department's officers directed against him. In the event nothing was advanced by that evidence. 43 The factual history already outlined sets out the factual matters necessary for the determination of this application. The issues raised on the reamended statement of claim may now be addressed in turn. The Criminal Justice Stay Visa Process 44 It is immediately apparent from the arrangement of the sections of the Migration Act relating to criminal justice stay visas that they do not attract the procedural requirements relating to visas generally. In particular, there is no provision for a person to apply for the grant of such a visa. 45 The criteria for the grant of a criminal justice stay visa specified in s 157 are alternative necessary conditions for the grant of such a visa in the sense that one or other of them must be satisfied before such a visa is granted. The satisfaction of either criterion does not establish an entitlement in the unlawful non-citizen to the issue of a criminal justice stay visa. Nor is there any statutory right to apply for one. Section 158 describes as the only additional criterion to that imposed by ss 156 and 157, that the Minister has decided, in his absolute discretion, that it is appropriate for the visa to be granted. There is, of course, no such thing as an absolute discretion in the literal sense. A statutory discretion must be exercised by reference to the subject matter, the scope and the purpose of the legislation which creates it - Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; R v Australian Broadcasting Tribunal Ex parte 2HD Pty Ltd (1979) 144 CLR 44 at 49; De L v Director-General NSW Department of Community Services (1996) 187 CLR 640 at 661. In this particular case it is required to be informed by considerations of public safety. The reference to an absolute discretion may be taken as a reference to the very wide range of matters the Minister may take into account and the intention of the legislature that his discretionary decision shall not lightly be reviewed. That is reinforced by the provisions of s 475(2)(a) of the Act which excludes from the definition of "judicially reviewable decision": "… a decision in relation to a criminal justice visa or a criminal justice certificate within the meaning of Division 4 of Part 2." That provision is to be read with s 485 which relevantly provides: "(1) In spite of any other law including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially reviewable decisions or decisions covered by section 475(2) or (3) other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903." 46 The decision to refuse the grant of a criminal justice stay visa is not directly impugned in these proceedings and it could not be for the Court lacks jurisdiction to review it. Goldie claims in his reamended statement of claim that he satisfies the primary criteria for the grant of a criminal justice stay visa. There is no doubt that the criterion under s 157 of the Act, the prior issue of a criminal justice stay certificate, is satisfied. The remaining criterion is the Minister's decision that the grant of the visa is appropriate. That is a criterion which cannot be "satisfied" by Goldie. It is an evaluative decision by the Minister, the existence of which is characterised as a condition of the grant for the purposes of the Act. 47 Goldie then attacks Ms Riordan's letter of 20 July 2000 which informed him that he was not the eligible applicant for the grant of a criminal justice stay visa. The letter was a statement of Ms Riordan's view of the law, it was not a decision by her. It may have erred in so far as it said that Goldie was not the eligible applicant. There is no eligible applicant for such a visa under the Act. It is for the Minister to decide whether such a visa is granted. But no question arises of Ms Riordan's authority to decide on the issue of a criminal justice stay visa. She did not decide that question. The contentions made by Goldie in his reamended statement of claim under the heading "Declarations and Injunctions" are therefore misconceived. So too is the claim for a declaration that he is the correct applicant for a criminal justice visa. 48 Under that general heading Goldie goes on to refer to Ms Riordan's status as a respondent in action number W53 of 2000 in which he alleged actual bias against her. That allegation was rejected in the judgment in that case which was given on 22 December 2000. The mere fact that Goldie chose to sue Ms Riordan in those proceedings did not disable her, by reason of any apprehended bias or otherwise, from discharging her statutory functions. 49 There is no basis for the orders sought restraining Ms Riordan from any further dealings or involvement in Goldie's migration status or application. Misfeasance in Public Office 50 The nature of the claims of misfeasance in public office has already been outlined. They canvass substantially the same issues with respect to Ms Riordan as were raised under the heading "Declarations and Injunctions". In addition, it is said she failed to pass Goldie's application to an appropriately delegated officer for consideration according to law and did so in order to prevent his release on bail on the State charges. Her actions are said to have been unlawful, positive and intentional acts as a result of which he has suffered harm and loss. 51 Ms Riordan formed the view that Goldie was not "the eligible applicant" for a criminal justice stay visa. That view was erroneous at law but only in so far as it may have implied that there was an eligible applicant for which the statute provided. There is no provision in the Act for applications in respect of criminal justice stay visas or for their consideration by the Minister such as there is with respect to visas generally. That is not to say that a person who is the subject of a criminal justice stay certificate cannot apply to the Minister for the grant of a criminal justice stay visa. But such a right is the right that anybody has to seek the favourable exercise of a discretion. 52 As was submitted for the respondents, it is necessary, in order to establish the tort of misfeasance in public office, that an applicant show an invalid or unauthorised act and that it was done maliciously or that the officer knowingly acted in excess of his or her power - Northern Territory v Mengel (1995) 185 CLR 307. Ms Riordan did not commit any invalid or unauthorised act. She was not empowered to make a decision in relation to the grant of a criminal justice stay visa. But she did not do so. Her alleged failure to pass Goldie's request on for further consideration was not an invalid or unauthorised act. It cannot amount to misfeasance in public office. Moreover, as is submitted for Ms Riordan, she notified Goldie's counsel of his request for further consideration of the grant of a criminal justice stay visa and her counsel instructed that she should not respond to Goldie directly and that he would talk to Goldie about the matter. 53 In the event, following Goldie's lawyer's letter to the Minister on 27 September 2000, Mr Crennan considered whether or not a criminal justice stay visa should be granted and decided that it should not be. 54 There is nothing in the claim of misfeasance in public office. Decision for Improper Purposes 55 Under this heading Goldie alleges that Ms Riordan signed an Authority to Hold in Detention on 28 October 2000 in order to prevent his release from custody if his application for dismissal of the State charges should turn out to be successful. It is said that she executed this document without regard to the merits of his case and without giving him a right of response or submission. The allegation is then made that her acts were unlawful, positive and intentional and that he suffered harm and loss as a result. 56 Goldie's submissions seemed to run wider than the pleading which focussed on the signing, by Ms Riordan, of the authority to hold him in detention. He refers to her refusal of a Bridging Visa E on 28 March 2000, her advice that he was not the "eligible applicant" for a criminal justice visa, her failure to interview him and her advice that he would not be granted any kind of visa. He asserts that she had described him to a member of the public as having misled immigration authorities, having breached visa conditions and having skipped a surety. This assertion is based upon a file note of a conversation between Ms Riordan and one Jennifer Taylor who lived at the residential address given in Goldie's application for a Bridging Visa E on 21 March 2000. In the course of that conversation Ms Taylor apparently told Ms Riordan that Goldie, who was then in custody, was no longer living at that address and that they had broken up about three weeks before the police came for him. The file note records that Ms Riordan said to Taylor: "He was granted bail by the Perth Court with a surety of $50,000 which he has not been able to raise as yet. So the Immigration Department has enacted its powers of detention over him to hold him in custody because we also have an interest in him as he is unlawful and breached conditions of a bridging visa which is why he had a $10,000 surety." Ms Taylor then asked whether he was going to be released and Ms Riordan responded: "No not at the moment. But the criminal court in Perth did grant him bail if he can come up with a surety. However immigration are now holding him in custody and that is why I have called you. As the review officer I have to make the decision if he will be released or not. That's why I wanted to check the information he has provided. It looks like he has again provided immigration authorities with false information." 57 There is nothing in this material to indicate any improper purpose on the part of Ms Riordan in executing the authority to hold Goldie in detention had the Perth Court of Petty Sessions dismissed the charges and discharged him from State custody. Officers of the Department would have been under a duty to take him into immigration detention as an unlawful non-citizen under s 189(1) of the Act. There was no basis upon which he could complain that Ms Riordan's signing of the authority to hold him in detention was without regard to the merits of his case and without giving him a right of response or submission. He was at the time an unlawful non-citizen who attracted the operation of s 189. Negligence 58 Under this heading Goldie complains that he has been detained from 23 May 2000 as an unlawful non-citizen notwithstanding that he satisfied the primary criteria for a criminal justice stay visa which would have permitted his release from custody on bail. In breach of that duty it is said Ms Riordan failed to take adequate steps to verify his entitlement to a criminal justice stay visa. This contention is misconceived. There is no entitlement on the part of an unlawful non-citizen to the grant of a criminal justice stay visa. The provisions of the Act make that plain. The complaint that Ms Riordan failed to pass his application to an appropriately authorised delegate of the Minister has already been discussed under the heading of "Misfeasance in Public Office". There was neither a breach of duty nor any demonstrated harm or loss which would found a cause of action. Actual Bias 59 This claim is again raised against Ms Riordan. As pointed out the signing of that Authority merely put in train processes to implement the discharge of the statutory duty imposed by s 189 were Goldie to have been released. There is nothing in the material before me to indicate anything other than that Ms Riordan carried out her duties as required by the Act. There is no basis for the contention of actual bias. Application for Disqualification 60 At the commencement of the hearing Goldie sought to have me disqualify myself from hearing his application on the ground that he had a reasonable apprehension of bias on my part. This application was based upon findings which I made in the decision given on 22 December 2000 in W53 of 2000. Then I made reference, inter alia, to the following matters: 1. The inclusion, in a letter which Goldie wrote to the Department on 20 November 1994, of "at least one obvious falsehood". 2. The probability that an application which he made for a protection order in November 1994 was a tactic to offset the legal disadvantage he found himself at by reason of the termination of his relationship with a woman who was an Australian citizen. 3. My finding that I did not regard Goldie as a witness whose testimony in contentious areas could be relied upon unless inherently probable or corroborated by some independent evidence. 61 I declined Goldie's request that I disqualify myself. As I indicated at the time, for the most part his application was concerned with questions of law and inferences to be drawn from facts not in dispute. The adverse findings I had made in respect of credit in the previous judgment to which Goldie referred related to particular matters dealt with in that judgment. They do not give rise to any pre-judgment of the issues affecting this matter. As may be seen from the reasons above, nothing in the conclusions I have come to involves a judgment turning upon Goldie's credit. Having said that, I do not wish it to be taken that the fact of such findings having been made would of itself amount to sufficient cause for disqualification. Conclusion 62 For the preceding reasons, this application will be dismissed with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .
Solicitor for the Respondent: Australian Government Solicitor
Goldie
Commonwealth of Australia
[1998] AATA 95
[2001] WASC 153
(1947) 74 CLR 492
(1979) 144 CLR 44
(1996) 187 CLR 640
(1995) 185 CLR 307