Kopiev v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This case has a number of curious features. In form, the present proceeding is an application by the respondent ("the Minister") for an order dismissing the proceedings pursuant to Federal Court Rules ("FCR") O 10 r 3(2), which provides as follows: "If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper." The most curious feature of the case is that it seems that the reason the applicant did not appear before the Court on the first directions hearing, and has not appeared since, is that the Minister removed him from the country three days prior to the first directions hearing. There are some who might see more than a little irony in the Minister's application. 2 The applicant commenced the proceedings on 3 October 2000, at a time when he was held in immigration detention. In his handwritten application, the applicant sought review of a decision made by the Migration Review Tribunal ("MRT") on 5 September 2000. The MRT had affirmed a decision of the delegate of the Minister to refuse to grant the applicant a Bridging Visa E (Class WE). 3 The applicant seeks two forms of relief. First, he seeks an order that he be granted a bridging visa. Secondly, he asks for "money from [the Department of Immigration and Multicultural Affairs] for unlawful detention for sixteen days…". 4 Although the grounds of the application are not stated with clarity, the applicant alleges that the Department of Immigration and Multicultural Affairs decided on 10 August 2000 to grant him a bridging visa, only to purport to refuse his application for such a visa on 21 August 2000. The applicant also alleges that he had been granted a bridging visa by the operation of s 75 of the Migration Act 1958 (Cth) ("Migration Act"). Section 75(1) of the Migration Act, when read with reg 2.24 of the Migration Regulations, provides that if an application for a bridging visa is made by a non-citizen in immigration detention and if the Minister fails to make a decision within two working days, the non-citizen is taken to have been granted the visa. 5 It is necessary to recount the substance of the procedural history of these and other proceedings involving the applicant. 6 The application filed on 3 October 2000 was allocated a first return date of 19 October 2000. On 17 October 2000, two days before the scheduled directions hearing, the Minister's solicitors wrote to the Registry informing the Court that the applicant had been "removed from Australia" on 16 October 2000. The solicitors inquired whether, in these circumstances, it was necessary for them to appear at the directions hearing in order to obtain an order for dismissal of the proceedings pursuant to FCR O 10 r 3(2). 7 The directions hearing took place as scheduled. At the hearing, the Minister's legal representative sought an order that the proceedings be summarily dismissed, having regard to the absence of the applicant. The application was not supported by any affidavit. 8 In view of the fact that the applicant had evidently been removed from the country after he had instituted proceedings in this Court, and that his non-appearance was apparently a consequence of that removal, I asked the Minister's representative to prepare an affidavit setting out the sequence of events. An affidavit affirmed by an officer of the Department ("the first affidavit") was duly filed in compliance with that request. The first affidavit addresses the procedural history of the various proceedings involving the applicant. It does not, however, address the applicant's claim that he had been unlawfully detained. 9 The first affidavit shows that the applicant is a Russian citizen. He arrived in Australia on 26 May 1999 on a tourist visa. He was apparently accompanied by his wife, step-son and daughter. 10 The applicant applied for a protection visa on 17 June 1999. That application was rejected by the Minister's delegate and an application for review by the Refugee Review Tribunal ("RRT") was unsuccessful because it was filed out of time. The applicant then unsuccessfully applied to the Minister to exercise his powers personally under s 417 (a discretionary power to substitute a more favourable decision) and s 48B (a discretionary power to permit a second application for protection visa) of the Migration Act. 11 On about 14 June 2000, the applicant applied for a Bridging Visa E (Class WE). On 26 June 2000, the applicant attended an office of the Department in Sydney. He was detained and taken into custody, on the ground that, all his applications having failed, he was an unlawful non-citizen: see Migration Act, s 189(1). 12 On 28 June 2000, the applicant (who by then was in custody) made a second application for a Bridging Visa E (Class WE). The materials before me do not indicate why the applicant made a second application for a bridging visa. In any event, the second application was refused by the delegate on 30 June 2000 (within the period required by s 75(1) of the Migration Act), and by the MRT on 13 July. A subsequent application to this Court for judicial review of the MRT's decision was discontinued on 4 September 2000. 13 In the meantime, although this is not a matter dealt with in the first affidavit, it appears both from the MRT decision and a chronology prepared on behalf of the Minister that the applicant was granted a bridging visa on 10 August 2000. The Minister's submissions assert that the visa was granted in consequence of "an error of law" and that the decision to grant the visa was subsequently "vacated", on an unspecified date. This assertion mirrors a reference to the grant of the visa in the MRT decision of 5 September 2000 (the subject of the current application for judicial review). However, the MRT decision sheds no light on when the decision to grant the visa was made, nor by what authority the decision was "vacated". I shall return later to the circumstances in which the bridging visa appears to have been granted to the applicant, and later "vacated". 14 On 21 August 2000, the Minister's delegate purported to refuse the first application for a Bridging Visa (that is, the one made on 14 June 2000). The MRT affirmed the delegate's decision on 5 September 2000. It was the MRT's decision that was the subject of the application for review filed in the Court on 3 October 2000. 15 On 26 September 2000, a Compliance Officer approved a "Removal Check List" completed in respect of the applicant. This is apparently a standard form document which is completed by reference to the requirements of s 198 of the Migration Act to assess whether an unlawful non-citizen should be removed from Australia. Section 198, so far as relevant, provides as follows: "(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen: (a) is a detainee; and (b) was entitled to apply for a visa in accordance with section 195 but did not do so. (6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone." 16 The Removal Check List recorded that the applicant was a detainee who was entitled to apply for a visa in accordance with s 195 of the Migration Act (which provides that a detainee may apply for a visa within two days of being made aware of his or her entitlement to do so). The officer responsible for completing the document appears to have thought that s 198(5), rather than s 198(6), was the provision applicable to the applicant's case. The Removal Check List recorded that there was "no known impediment to the removal from Australia [of the applicant] pursuant to [s 198 of the Migration Act]" and that arrangements had been made to remove him from the country. 17 On 3 October 2000, as I have noted, the application for judicial review of the MRT's decision of 5 September 2000 was filed with the Court. This, of course, occurred after completion of the Removal Check List. 18 According to the first affidavit, Departmental officers made arrangements for the applicant to be removed from Australia on 8 October 2000. However, it appears that the applicant indicated to departmental officers that he would co-operate only if his wife and children left the country with him. Acting on information provided by the applicant, the Departmental officers detained his wife and children the following day. Ultimately, on 16 October 2000, three days prior to the first directions hearing in the present proceedings, the applicant (in the words of the affidavit) "was … removed … without protest or difficulty". 19 At the second hearing on 2 November 2000, when the first affidavit was filed and read, I requested written submissions from the Minister's representative in support of the application for an order of summary dismissal. I indicated that I wished the Minister's representative to address the significance, if any, of the removal of the applicant from Australia while proceedings for judicial review of the MRT's decision where on foot in this Court. Those submissions were duly filed. 20 The Minister submitted that, since the literal requirements of FCR O 10 r 3(2) had been satisfied (that is, the applicant did not appear at the directions hearing of 19 October 2000), the proceedings should be dismissed, notwithstanding that the reason for the applicant's non-appearance was his removal from the country. The Minister's submissions were to the following effect: · Both s 198(5) and s 198(6) of the Migration Act impose an absolute obligation on an officer to remove an unlawful non-citizen. Even if it had been reasonable for the Minister to delay the removal of the applicant from Australia until after 19 October 2000, s 198 did not permit such a course. · Although the removal was purportedly pursuant to s 198(5), the conditions stated in s 198(6) were also satisfied. Since an act purportedly done under one power can be supported under another, the removal was lawful. (This contention appears implicitly to concede that the Minister's delegate had incorrectly invoked s 198(5) of the Migration Act, rather than s 198(6)). · There could be no question of contempt of court or frustration of the Court's processes since the Minister was both authorised and required pursuant to s 198 to act in the way he did. It was argued that a course of action that is expressly authorised by statute cannot constitute a contempt: Lockwood v Commonwealth (1953) 90 CLR 177, at 185. · In any event, in the absence of an order staying the removal of the applicant, s 482(1) of the Migration Act authorised his removal. 21 Section 482, relevantly, provides as follows: "(1) Subject to this section, the making of an application under section 476 to the Federal Court in relation to a judicially-reviewable decision does not: (a) affect the operation of the decision; or (b) prevent the taking of action to implement the decision; or (c) prevent the taking of action in reliance on the making of the decision. (2) If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. (3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision." 22 The Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), which introduced s 482 (then numbered s 166LH), explained the purpose of the section as follows: "Subsection (1) has the effect that the decision to be judicially reviewed continues to have legal effect pending the outcome of the application for review. For example, if the decision results in a person becoming or remaining an unlawful non-citizen, any action by the Department to detain or remove that person is lawful, subject to other provisions of the Act. However, subsection (2) permits the Court to make whatever interim orders are necessary in his view to ensure that the outcome of the application can be effective." (Emphasis added.) 23 Since there is no contradictor, I have not had the benefit of full argument on the issues raised by the Minister's submissions. It is, however, by no means apparent that the direction contained in s 198(6) of the Migration Act (assuming that to be the relevant provision) precluded the Minister from allowing the applicant to remain in Australia until at least the directions hearing on 19 October 2000. 24 Section 198(6) imposes a duty, in the circumstances specified, to remove an unlawful non-citizen "as soon as reasonably practicable". In determining what is "reasonably practicable", it may be relevant that there are legal proceedings on foot to which the non-citizen is a party or which he or she is required to attend. In Attorney-General (NSW) v Ray (1989) 90 ALR 263 (S Ct NSW), Young J was concerned with s 20(1) of the Migration Act which, at the time, required a person against whom a deportation order had been made "to be deported accordingly". His Honour construed s 20(1) to permit the Department to delay carrying out the deportation order for any "proper reason": at 275. His Honour referred to Singh-Dhillon v Mahoney, (unreported, 9 October 1986), where Sheppard J expressed the view that it would be lawful to delay execution of a deportation order to enable the deportee to pursue a genuine civil claim. It is at least arguable that similar reasoning applies to s 198(6) of the Migration Act. Nothing said by Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte SE (1998) 158 ALR 735, at 740, suggests otherwise. 25 It is also to be borne in mind that the applicant (who appears to have completed the application to this Court without legal assistance) was not merely seeking review of the MRT decision. He was also seeking compensation for his allegedly unlawful detention. His claim to have been unlawfully detained had not of course been tested at the time he was removed. But in view of the apparent grant of a bridging visa on 10 August 2000, his claim was not obviously devoid of any merit. This was another factor which might have been relevant to a decision whether or not the applicant should have been permitted to stay in Australia until at least the first directions hearing. 26 Whatever the correct construction of s 198(6) of the Migration Act, it seems that s 482(1) permitted the Minister to remove the applicant from Australia notwithstanding the institution of proceedings seeking review of the MRT's decision of 5 September 2000. To the extent that the applicant sought to set aside the MRT's decision affirming the refusal to grant him a Bridging Visa E, he was relying on one or more of the grounds specified in s 476(1) of the Migration Act (even though the application does not identify a particular ground). In these circumstances, s 482(1) provides that the making of the application does not prevent the taking of action to implement the decision or in reliance on the making of the decision. The Explanatory Memorandum supports the view that the institution of proceedings for judicial review was not to inhibit the exercise by the Minister of the power to remove unlawful non-citizens from Australia. 27 As I have noted, the applicant's claim for relief included not only an order setting aside the decision of the MRT but compensation for his allegedly unlawful detention. Section 482(1) of the Migration Act does not of itself answer the question whether the Minister was justified in removing the applicant before the resolution of his claim to compensation. However, it seems that s 198(6) of the Migration Act authorised the Minister to remove the applicant notwithstanding the claim for compensation being on foot. Since there is no evidence to suggest that the applicant was removed in order to prevent him pursuing the claim for compensation, it is not necessary to consider the position had the removal been for that reason. 28 I therefore conclude, on the material before me, that the Minister was entitled, if not required, to remove the applicant from Australia notwithstanding that the applicant had instituted proceedings in the Court. 29 Despite this conclusion, it is appropriate to say something more about the circumstances in which the bridging visa was granted on 10 August 2000 and subsequently "vacated". The Minister's submissions, which did not address this question, were filed shortly before the hearing scheduled for 23 November 2000. On that date, I directed that the Minister file and serve any further affidavit on which he intended to rely on or before 11 December 2000. I did so in order to provide the Minister's representative with an opportunity to explain the circumstances in which the visa came to be granted to the applicant on 10 August 2000 and the justification for its subsequent cancellation. I was also concerned to give the Minister's representative an opportunity to rebut the inference, which may well have been available on the materials before me, that Departmental officers were aware that the applicant had been granted a visa on 10 August 2000, yet had not thereupon released him from custody on that date. 30 In the event, an affidavit sworn by a Compliance Officer, Mr Davidson, was filed and read on behalf of the Minister. This affidavit reveals the following sequence of events: · On 17 July 2000, the applicant made a request to the Minister pursuant to s 48B of the Migration Act. The applicant requested the Minister to determine pursuant to s 48B that he (the applicant) was not prevented from applying a second time for a protection visa. · On 10 August 2000, the applicant was informed that his request did not meet the guidelines and would not be referred to the Minister. · On the same day, a Departmental officer (not Mr Davidson) granted a bridging visa to the applicant. The grant of the visa was recorded in the Department's Integrated Client Service Environment ("ICSE") computer records. · On 17 August 2000, Mr Davidson, who was the detention officer responsible for the applicant, checked the ICSE records relating to the applicant. Mr Davidson noticed that an entry had been made recording the grant of a bridging visa to the applicant on 10 August 2000. · On the same day, Mr Davidson spoke to another officer at the Department's Parramatta office, Ms Ellis. According to Mr Davidson, Ms Ellis told him that the basis for the grant of the bridging visa had been the applicant's request under s 48B of the Migration Act made on 17 July 2000. · Ms Ellis then recorded a note on the ICSE records that "S 48B request granted in error". Although the meaning of this notation is not self-evident, Mr Davidson deposes that it was intended to signify that the bridging visa had been granted in error. He says that the error lay in the fact that a request to the Minister under s 48B of the Migration Act cannot support the grant of a bridging visa. · On 21 August 2000, Mr Davidson made the decision to refuse a bridging visa to the applicant. I have already referred to that decision (see [14] above). · On 23 August 2000, Mr Davidson made a file note recording the course of events. According to the file note, the grant of the bridging visa was found to be an unlawful decision as there was no basis for the visa to be granted and the Officer did not have delegation to make the decision. Mr Davidson says in his affidavit that subsequent inquiries revealed that the Departmental officer who purported to grant the visa did in fact have authority to do so. The file note was therefore in error to the extent it suggested otherwise. 31 This account of events leaves a number of matters unclear. For example, when was the applicant informed that he had been granted a bridging visa on 10 August 2000? What was the effect of the notation made by Ms Ellis on 17 August 2000? Was it to revoke the visa (cf Acts Interpretation Act 1901 (Cth), s 33(3))? Or was it to record that the initial grant of the visa was void ab initio? Was consideration ever given to releasing the applicant from custody, given that a duly authorised officer had purported to issue a bridging visa (albeit one that was subsequently regarded as having been issued in error)? 32 It is not appropriate to make any final judgment as to the legal consequences of the events described by Mr Davidson. It is enough to say that the grant of the bridging visa might support an argument that, at least during the period 10-17 August 2000, the applicant was the holder of a visa and therefore a lawful non-citizen (Migration Act, s 13(1)). A lawful non-citizen may be detained in certain circumstances, in particular if he or she holds a visa that is liable to cancellation under s 116(1) of the Migration Act and an officer reasonably suspects that the non-citizen would attempt to evade that officer or otherwise not co-operate with official inquiries: s 192(1), (2). There is no evidence, however, to show that the applicant was detained or kept in detention on or after 10 August 2000 pursuant to s 192 of the Migration Act. 33 This leaves the question of what action should be taken in relation to the proceedings in this Court. In view of the developments I have recounted, there seems to be little point in keeping it on foot insofar as the applicant seeks to challenge the decision of the MRT. On the other hand, any order terminating the current proceedings should be without prejudice to any claim the applicant might have in respect of what he has alleged was his unlawful detention. The material before me by no means negates the possibility that the applicant has such a claim. Of course, the applicant's removal from Australia might have effectively ended his opportunity to pursue any claim he might have in respect of his detention. Nonetheless, his entitlement to bring the claim should be preserved. 34 Accordingly, I propose to order that the proceedings be dismissed, but without prejudice to any claim the applicant might bring in respect of his detention during any part of the period from 26 June 2000 until his removal from Australia. 35 I do not think that any costs order should be made in favour of the Minister. As I have held, the Minister was entitled to remove the applicant from Australia notwithstanding the pendency of proceedings in this Court. Nonetheless, the Minister wished to have the proceedings dismissed on the ground of the applicant's non-appearance. In these circumstances it was incumbent on the Minister's representatives to bring the full circumstances of the applicant's removal to the attention of the Court at the time the application was made. This was not done and a series of hearings were required in order for the facts to be explained and adequately addressed. Much of the hearing time could have been avoided had the facts and issues been set out clearly at the beginning. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.