Halmi v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1999-10-22|Before: Wilcox J, Hill J

REASONS FOR JUDGMENT 1 The Applicant, Mr Halmi, has applied to the Court for judicial review of a decision of the Respondent Minister for Immigration and Multicultural Affairs, ("the Minister") acting under s 501 of the Migration Act 1958 ("the Act") to cancel the Permanent Resident Visa (East European Program) which had been issued to him, it would seem, on his arrival in Australia on 15 July 1988. 2 A consequence of the cancellation is that Mr Halmi became an unlawful non-citizen liable to be detained under s 189 of the Act. He was taken into custody on 28 September 1999 and is presently held at the New South Wales Corrective Services facility at Silverwater. He also became liable to be deported. By force of s 196(1) of the Act an unlawful non-citizen is required to be kept in immigration detention until removed, deported or granted a visa. Subsection (3) of the same section provides: "To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa." 3 By way of interlocutory relief Mr Halmi seeks an injunction restraining the Minister from deporting him pending the review by this Court. He seeks also a stay of the decision to revoke the order, or alternatively an order that the Minister grant to him a visa of a kind such as to allow him to live at his home and continue with his employment until the review has been determined. The Minister has given an undertaking to the Court not to deport Mr Halmi. He opposes the grant of the remaining interim relief sought.

15 Despite the provisions of s 501G of the Act which requires the Minister to give a written notice setting out the reasons for the decision, this was not done. At the hearing before me the legal advisers of the Applicant were handed a copy of the recommendation which was made to the Minister that he cancel the visa. That is still not compliance with s 501G, which requires the Minister's reasons to be provided where the Minister has made a decision, not necessarily the reasons of his advisers, albeit that one could infer that the Minister acted in accordance with the recommendation to him. I ordered the Minister to file and serve his reasons before the interlocutory hearing which I then adjourned until a later date.

The Application for interim relief 16 The present application for interim relief is founded upon s 482 of the Act. The effect of that section is that where there is a judicially reviewable decision (and it is common ground that the decision to revoke Mr Halmi's visa is a judicially reviewable decision) and an application has been made to the Court to review that decision, the Court has the power to make the orders of a kind listed in s 482(3): "for the purpose of securing the effectiveness of the hearing and determination of the appeal". The orders listed in s 482(3) include: " … orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision." An order made under s 482(2) may have effect until the giving of a decision on the appeal, that is to say, the giving of a decision on the application for judicial review which has been made to the Court.

17 It is clear that the Court's jurisdiction under s 482 to make an order of the kind listed in s 482(3) will only be attracted where the order is one which secures the effectiveness of the hearing and the determination of the appeal. So, it is necessary for an applicant seeking to enliven the jurisdiction to show that the order is one which secures the stated purpose. An obvious example would be an order staying a deportation to permit an applicant to proceed with judicial review. However, in other circumstances, the question whether such an order is necessary is not self evident - it calls for evidence. It was for this reason too that I adjourned the application for interim relief to enable the applicant to put on such evidence as he was advised going to this question. That evidence has now been adduced. I summarise it as follows.

18 Mrs Halmi deposes that she was granted Australian citizenship in 1995. Before her husband was detained on 28 September 1999 the family was dependent on his wages. He had commenced work with Rubber Recycling Pty Ltd on 19 March 1977 and since then had earned amounts, after taking into account overtime, between $500 to $600 per week before tax. Since he was detained she and the children had been living off the family savings. She said that she had only a few hundred dollars remaining. When that ran out she intended to apply for benefits from Centrelink. She says that without the income from her husband she will be unable to afford legal fees. Because her husband is in Silverwater gaol it has been difficult to maintain contact with him as he is allowed only one visitor a day. She says also that since her husband has been detained her son has been naughty and emotional and constantly demanded when he was to return.

19 In cross examination she was asked whether earlier legal fees had been paid. She said that she had no knowledge how much had been paid for legal fees and was unaware when the government had paid the costs which had been ordered against it.

20 It was common ground that commonwealth funded legal aid is not available for migration cases. Counsel who appeared for Mr Halmi indicated that he did so in the present proceedings without charge. There was no evidence whether any attempts had been made to obtain legal assistance from the law Society or the Bar. The solicitor who presently appears for Mr Halmi indicated that he was not prepared to do so without a fee.

The submissions of the Respondent 21 It is the Minister's submission that the relief sought should be refused for the following reasons: · The Court would not grant a stay of the order to revoke the visa, because to do so would be futile. Once the visa has been revoked, it is submitted only the Minister could issue another visa permitting the applicant to remain in Australia. Once the visa is revoked the applicant is a prohibited non-citizen and liable to detention. · The applicant had not established that his release from detention would secure the effectiveness of the hearing and the determination of the review. · The Court has no jurisdiction to compel the Minister to grant another visa of a temporary kind. The only jurisdiction which the Court has is that conferred upon it by s 482 (see s 485 of the Act). · In any case the proceedings being for interim relief, it is for the applicant to demonstrate an arguable case on the review and there is none.

Has the Applicant shown that the order is for the purpose referred to in s 482(2)? 22 The language of s 482 is somewhat curious when it speaks of orders which are for the purpose of "securing the effectiveness of the hearing and determination of the appeal". On the one hand even the deportation of an applicant may be said not to affect the effectiveness of the hearing or the determination of the appeal. Assuming that an applicant has legal representation the hearing and appeal can proceed in the absence of an applicant, even if the applicant has been deported. Although it can be said that once a deportation order has been executed at least, the appeal has really been rendered nugatory unless the applicant could be readmitted to the country. 23 It is submitted that the applicant has in the present case not shown that the effectiveness of the hearing or the determination of the appeal could be in doubt, notwithstanding the evidence I have summarised. It is said that an applicant can conduct an appeal in person, the appeal can thus proceed and be determined. It is further said that even if that be not accepted an applicant would need to show that all attempts to secure legal representation had failed before a case had been made out for the Court to make an appropriate order, if such could be made. Reliance is placed upon the decision of Dowsett J in Lu v Minister for Immigration and Multicultural Affairs [1998] FCA 1723 to which reference will be made in more detail later. So far as I can see from the report there was no direct evidence in Lu which sought to address this question, merely an assertion. But should that be wrong, I am far from convinced that an applicant who could demonstrate that gaol would impede his ability to obtain legal representation had not satisfied the test. 24 It is self evident that the Court is greatly assisted by legal representation of a litigant. That underlines the rationale in criminal cases that justice will be denied if an accused person is unable to obtain legal representation, and that accordingly the case may be stayed: Dietrich v The Queen (1992) 177 CLR 292. While it is true that the principle has no direct application in civil cases, it does not mean that legal representation in civil cases is of no importance. It clearly is. It is only the scarcity of legal resources which leads to the policy result that in the ordinary case, civil cases be not stayed where legal representation is unavailable: New South Wales v Canellis (1994) 124 ALR 513; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121. Further, it will be difficult for a person detained in gaol to give proper instructions, particularly if only one visit a day is allowed. Of course, where the case is one, as here, where the appeal is limited to a question of law, and no issue of fact is involved, this may be of lesser concern. 25 For the Minister it was submitted that to permit an applicant to be released in order to fund legal expenses would mean that once it could be shown that an applicant released from detention has earned sufficient to pay legal bills, then the reason for being released from detention would no longer be valid and the applicant would need to be returned to custody. With respect the submission is so far from reality in the present case that it need not detain us. The substantive appeal could be heard before Christmas. It is highly unlikely that the applicant could have earned so much in the few weeks in question that the submission borders on unreality. 26 An applicant does not have to show that all possible avenues of obtaining legal representation have been exhausted. Indeed, it is difficult to imagine an applicant in gaol being able to explore the options available in any event. The matter is one which only has to be established on the balance of probabilities. I am satisfied that it is more probable than not that the applicant will, on the evidence, be unable to obtain legal representation unless he has funds, and that the only way he can have funds available for this purpose will be if he is able to earn them, and the only way he will be able to earn them will be if he is released from gaol. His former employer has indicated that he would re-employ the applicant. I am, therefore, satisfied that the effectiveness of a real hearing will be secured only if the applicant has legal representation and that this will only happen if an order is made which secures his release from detention. 27 In case it should be thought that I had overlooked the matter, the fact that the applicant's child is manifesting behavioural problems, while no doubt a matter of concern, is not a matter that would in any way affect the effectiveness of the hearing or the determination of the appeal. I can not take this into account.

Has the Court power to grant a stay - would a stay be futile? 28 Applications made under s 482(2) are rare. So far as my researches and those of the legal representatives of the parties have revealed, there have only been two such applications, both of which were unsuccessful, but neither of which expressed any definitive view on the question. 29 The first application made was that in Lu before Dowsett J to which reference has already been briefly made. The report is marked "No question of principle" which illustrates the fact that his Honour did not see the case as deciding any question of importance. 30 The Applicant in that case relied upon the fact that it would be difficult to prepare the case while he was in detention, and said that the inability to earn money to pay legal fees would hinder his ability to obtain review. His Honour expressed the view that the chances of success in the review were not very good. However, his Honour was not satisfied that it was impossible, or indeed even unlikely that the preparation of it could be carried out while he was in custody. On the evidence his Honour would not infer that there would be difficulty to mount the appeal for financial reasons. It would seem that there was no real evidence to that effect. Certainly the matter would not be one which would call for inference. As to the question of power his Honour was prepared to assume it existed. However, his Honour did suggest that it was contrary to the spirit of the Act to release a person just so that he could earn money to pay costs. His Honour held that he was not satisfied that the matters prescribed by s 482(2) had been demonstrated. 31 The second decision was that of Nicholson J in Long v Minister for Immigration and Multicultural Affairs [1999] FCA 233. The circumstances in that case were not greatly dissimilar from those in the present case. After referring to s 196 and an earlier decision of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, a decision on different statutory provisions, and before s 196 of the Act took its present form, his Honour said at para 16: "There are, however, general principles in Msilanga's case which are relevant to mention here. The first is that the Court there had regard to the policy of the Act. The policy of the Act today is to be gleaned from its statutory provisions. Secondly, the Court there accepted by reference to prior decisions and in the course of the reasoning in Msilanga's case itself that an application for the release of the type sought in that case was very different from a normal bail case because a 'prohibited non-citizen', the relevant statutory term then, is unlike a person charged with a criminal offence not the subject of any presumption of innocence until proved guilty at a trial. Thirdly, it was held that in determining whether or not to grant interlocutory relief a judge should apply the serious question to be tried and balance of convenience tests." 32 Again it seems that no evidence was directed in the case at the question why it was necessary for the preparation or determination of the application for review that the applicant be at liberty. The only matters relied on were matters which went to family circumstances but did not fall within the language of s 482(2). The application was accordingly refused. In the course of the judgment his Honour made the following further comment: "There is the possibility that it could be argued s 482 is to be construed in the context of section 196 and in particular section 196 subs (3). The argument could run that if an order for a stay was made under subs 482(3), it could not be made in circumstances where it would have the effect prohibited by subs 196(3). That issue has not been argued before me and I express no opinion on it. Nor do I consider it necessary in this matter to have in mind any possible presumption such as that raised by Dowsett J in any construction of s 482 to which I must go in resolving this motion."

Can a decision to revoke a visa be stayed? 33 In my view the submission made on behalf of the Minister that a stay of a decision to revoke a visa is in all circumstances ineffective, because once the decision has been made the visa has been revoked and the Court has no power to grant one is misconceived. 34 The Court has jurisdiction to grant a stay in the circumstances which s 482(2) prescribes. If that jurisdiction is enlivened the Court may stay a revocation of a visa. A stay operates in such circumstances as an order that the decision not take effect until the challenge has finally been determined. As Glidewell LJ, with whose reasons Taylor LJ and Sir George Waller agreed, said in Reg v Secretary of State for Education and Science [1991] 1 QB 558 at 562-3 an order that a decision not take effect until determination of a judicial review challenge is correctly described as a stay (see too per Burchett J in Msilanga at 185). 35 The more substantial question is not whether a stay would, for this reason, be futile, but rather whether the provisions of s 196(3) preclude the making of such an order in the present circumstances. 36 There is no doubt that s 196(3) was intended to preclude an application being made to the Court to release an unlawful non-citizen who has been detained under s 189 of the Act Mr Halmi was detained under that section. Absent the decision to revoke his visa being set at naught, or suspended, the Court would clearly have no power to make an order releasing him. However, it is likewise true that if the Court were to set aside the decision to revoke the visa, the detention would be unlawful and to continue to detain an applicant would render the Minister liable to damages. It would be strange that the Court could not, in such circumstance make an order for a release, merely because the original detention came about under s 189. If the Court's decision operated ab initio to revoke the decision, then it may be argued that the matter is dealt with in s 196(2) which provides: "To avoid doubt, subsection (1) does not prevent the release from immigration detention of a lawful non-citizen." However subs (2) is merely to avoid doubt - I would think that the result would have followed for the reason I have already given. 37 It follows, therefore, that where the decision to revoke a visa has been stayed, and is thus treated as not having been made, pending the review, the person in custody is in the same situation as an applicant where the decision to revoke has been set aside, that is to say, in that period, the applicant is still a lawful non-citizen. Accordingly the right to be released from custody is available to that person, and likewise the prohibition that the person be released has no application. The person is not, while the order is stayed, an unlawful non-citizen. He is a lawful non-citizen. It is my view that the Court has jurisdiction to release an applicant in the present circumstances from custody. The question is whether that jurisdiction should be exercised in the present circumstances.

Does the applicant have an arguable case on the review? 38 To succeed in the application Mr Halmi must show in accordance with the normal tests for interim relief of this kind, that he has an arguable case on the review. It is submitted on behalf of the Minister that Mr Halmi has failed to do so. In order to assess whether this is so, it is necessary to set out the arguments which it is proposed would be advanced at the trial, albeit that this is only in the context of whether there is an arguable case. The parties have not asked me to determine the matter on a final basis at this stage. 39 On behalf of Mr Halmi six substantive arguments were advanced for setting aside the Minister's decision. It is necessary to set these out in order to see whether there is, within them, an arguable issue. 40 It is obvious enough that a decision made by the Minister under s 501 will not easily be subject to challenge. The power which is given to the Minister to cancel a visa is enlivened only by a factual matter, in a case such as the present. That is, the Minister may act to cancel a visa where the Minister "reasonably suspects that the person does not pass the character test" and then where "the person does not satisfy the Minister that the person passes the character test." Where the person in question has been as a matter of fact sentenced to a term of imprisonment of 12 months or more the Minister can not but reasonably suspect that the person does not pass the character test, and a fortiori the person could not satisfy the Minister that he did. Presumably the power under s 501(2) is discretionary in that the Minister is not compelled to cancel a visa once the character test has been satisfied. But the Court's power of judicial review in migration matters is not coextensive with the general principles of judicial review. Section 476 operates in conjunction with other provisions of Part 8 of Division 2 of the Act both to confer jurisdiction upon the Court to review those decisions which are within the categories of "judicially-reviewable decisions" and to limit the ambit of that power. Only the grounds of review provided for in s 476(1) may be advanced before the Court. Certain grounds ordinarily available for judicial review are specifically excluded. So for present purposes it must be noted that the taking into account of an irrelevant matter in making the decision, or the failure to take account a consideration which is relevant will not avail an applicant. The fact that this Court is, by virtue of the narrowness of the grounds of review, obliged in many cases to engaged in what is but a pretence of judicial review is, however, not offensive to the provisions of Chapter III of the Constitution: Abebe v the Commonwealth (1999) 73 ALJR 584. 41 The first submission is that the Minister failed to observe procedures that were required to be observed in connection with the making of the decision (a ground of judicial review open to the applicant) in that the Minister failed to give notice to the applicant of the reasons for his decision, until I ordered that he do so. That the Minister is obliged to give reasons is clear from s 501G of the Act. Reference was made to s 119 of the Act which sets out the general powers of the Minister to cancel a visa and inter alia, s 116(1)(g) which was said to make a cancellation under s 501 fall within the provisions of Part 2 of Division 3 of the Act, because it was said a ground of cancellation under s 501 was a "prescribed ground". 42 The submission is entirely misconceived. First, a decision under s 501 is not a decision on a "prescribed ground". It is a decision on a ground expressly enacted, not "prescribed": see definition of "prescribed" in s 5 of the Act. Second it is clear that even if it were, the failure to notify reasons would not have invalidated the decision, see s 127(3). Thirdly, s 501G(1)(e) of the Act, which does apply to the decision to cancel a visa under s 501 does require reasons to be given, but s 501G(4) also provides that failure to comply will not affect the validity of the decision. 43 The second submission is that the Minister made an error of law (a ground of judicial review open to the applicant) in that he applied the wrong test. So it is said that the Minister had in correspondence advised that he had declined to exercise his discretion not to cancel the applicant's visa pursuant to s 501(2) of the Act, whereas that is not the matter which falls for decision by the Minister under that section. 44 Again, in my mind, the submission is misconceived. That the Minister directed his mind to the right matter for decision emerges clearly enough from the Statement of Reasons which the Minister ultimately gave to the applicant. The Minister in those reasons says: "Before exercising my discretion to cancel, I had formed a reasonable suspicion, under s 501(2)(a), that Mr Halmi did not pass the Character Test due to the fact that in 1990 he was convicted for a crime, 'supply of prohibited drug (heroin)' and sentenced to 18 months imprisonment, plus a further 8 months imprisonment. I also took account of the fact that in 1996 Mr Halmi was convicted for a crime of 'supply of prohibited drug …' and sentenced to 2 years and 3 months on each count with an additional term of 1 year and 9 months imprisonment. In accordance with s 501(2)(b), I was not satisfied that Mr Halmi passed the Character Test on grounds under s 501(6)(a) because he has a substantial criminal record as defined in s 501(7)(c). As I was not satisfied that Mr Halmi passed the character test I exercised my discretion to cancel his visa under s 501(2)." 45 Even if the Minister or those advising him, did set out the test wrongly in correspondence (and it is open to argument that in fact neither he nor they did so), the fact is that the Minister's decision makes it clear that no error of law was involved. In the circumstances of the present case where the power to cancel had been enlivened on the facts, to consider the matter on the basis that there may be facts which would lead to the Minister concluding that the discretion to cancel should or should not be exercised, does not involve an error of law. 46 The third submission was founded upon the assertion that the Minister had improperly exercised the power conferred upon him under s 501 of the Act (again, an available ground of review) in that in so doing the Minister undermined the jurisdiction of this Court which the Minister had himself invoked to appeal against the decision of Dr Gerber, which as a result of the exercise of the power to cancel was rendered nugatory, at least in a practical sense. 47 It is somewhat unfortunate that having invoked the jurisdiction of the Court under s 44 of the Administrative Appeals Tribunal Act 1975 the Minister should take action which would have been unnecessary had the appeal been successful and which arrived at the same result as a successful appeal, should it turn out that the appeal was unsuccessful. The time of this Court should not be wasted by the scheduling of appeals, which the Minister obviously does not intend to pursue. But that is a matter which can, at least so far as the inconvenience to the applicant is concerned, be cured by an appropriate indemnity cost order. 48 Had the jurisdiction of the Court been invoked by the applicant, the rendering of the proceedings nugatory might well be thought to be an improper exercise of power. But that is the converse of the present case. I was referred to the decision of the full Court in Minister of Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306. But that was a quite different case to the present and I do not find it particularly helpful. The proceedings which were said to have been interfered with were proceedings of the Administrative Appeals Tribunal, not a Court. 49 The real complaint of the applicant is that the Minister apparently knew nothing about the institution of an appeal to this Court. His advisers did refer to Dr Gerber's reasons in the advice they gave him, but neglected, for whatever reason, to mention that it was under appeal, and that if that appeal was successful, the decision to cancel the visa would not have to be made. Failure to take account of a relevant consideration would, ordinarily operate to avoid the decision. But such a failure is not a ground of judicial review under s 476 of the Act. For this reason I do not think that the applicant has made out an arguable issue on this ground. 50 The fourth ground of attack on the decision was that the Minister had made a mistake of law (a permitted ground of judicial review under the Act) in that he had applied s 501 instead of s 501A, said to be the proper foundation of power. With respect this submission is of no merit at all. Section 501A is concerned with a case where a decision had originally been made by a delegate or the Administrative Appeals Tribunal and the Minister then acted to set aside the original decision. However it is clear that is not what the Minister purported to do, albeit that to some extent the decision to cancel the visa operated to render nugatory the decision of the Tribunal. The ground is not arguable in my view. 51 The fifth ground depends upon the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. It is said that the Minister erred in law in not taking account of the interests of the applicant's child as a primary consideration, as Teoh required. The problem with the submission is that a reading of the Minister's reasons make it clear that he did. It is true that the Minister balanced the interests of the applicant's son with other matters, butagain Teoh makes it clear that this is the correct approach, when regard is had to Article 3(1) of the United Nations Convention of the Rights of the Child. It is interesting to note that Principle 2 of the Declaration of the Rights of the Child, which is Schedule 3 to the Human Rights and Equal Opportunity Commission Act 1986, refers to the rights of the child as being "the" paramount consideration but no submission was advanced as to the difference which the definite article may make. 52 The sixth and final matter relied upon is that the Minister erred in law in failing to consider Article 23 of the International Covenant on Civil and Political Rights. That article which forms part of Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986, but which like the Declaration of the Rights of the Child in Schedule 2 has not been the subject of enactment as part of the Australian municipal law provides: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." 53 It is obvious enough that the Minister's decision, far from protecting the family of the applicant as a group appears designed (the wife not being prepared to leave Australia with her child) to tear it apart. It can be said that the Minister's reasons show he considered the wife and was aware that the consequence of the decision would be separation. It is however, fair to say that no regard was directly had to any obligation to protect the family. 54 Counsel for the Minister referred me to the Ministerial Direction made under s 499 of the Act. That section empowers the Minister to give directions as to the exercise of powers or functions, and requires compliance with those directions by others. I do not think that it can be said that the Minister is himself bound by directions he makes under s 499, although, no doubt it would be appropriate for the Minister to conform to matters which he had directed others to comply with. The Direction which the Minister issued in regard to s 501 of the Act treats the interests of children as a primary consideration as Teoh requires. The interests of the family, on the other hand are included in the category of "other considerations". The direction states: "It is the Government's view that where relevant, it is appropriate that these (ie other considerations) matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include: (a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community" 55 It is indeed arguable that in exercising his discretion the Minister should have had regard to, but failed to have regard to Australia's treaty obligation to "protect" the family. Indeed it may well be arguable that the Minister should treat the protection of the family as much as a primary consideration as the direct interests of children. The problem, however, is that the failure to take into account a relevant consideration, is not a ground of judicial review. Grounds of judicial review inevitably overlap. However, the exclusion of the failure to take relevant consideration into account from the ground of review of improper exercise of power suggests, I think, that the legislature intended this ground to be excluded, in whatever way it may be put. It is for this reason that I have regretfully concluded that the Applicant has failed to disclose an arguable issue to entitle him to the interim relief he seeks. 56 I would accordingly dismiss the application for interim relief. I would reserve costs pending the hearing of the application for judicial review. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Counsel for the Applicant: M Ramage, S McNaughton

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 196(3), 482(3), 501

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