Lewai v Davidson

(a) within 2 working days after the day in which section 194 was complied with in relation to his or her detention; or

(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply within the next 5 working days after those 2 working days.

(2) A detainee who does not apply for visa within the time allowed by sub-section (1) may not apply for a visa other than a bridging visa or a protection visa after that time." Section 194 provides that, as soon as reasonably practicable after an officer detains a person, the officer must ensure that the person is made aware of the provisions of ss 195 and 196. 11 The first ground relied on by the applicant concerns the proper construction of the expression "as soon as reasonably practicable" where that expression appears in ss 198(5) and (6). The applicant contends that some meaning must be given to the word "reasonably" and that meaning is given by having regard to the interests of an unlawful non-citizen who might be the subject of removal. In the present circumstances, the applicant contends that regard must be had to the interests of the applicant's wife and children in determining whether it is reasonably practicable for him to be removed. 12 The applicant contends that the power conferred by ss 198(5) and (6) cannot be exercised before a time that is reasonably practicable, having regard to the position of the applicant. Reliance is placed on the principle of statutory interpretation that where a statutory power affects the liberty of a person, and there is ambiguity in the construction of the statute, the statute should be construed in a manner that is favourable to the person. Though I do not doubt that proposition, the question is whether there is any ambiguity in the expression to which I have referred. 13 It is significant, in my view, that ss 198(5) and (6) are both directions to an "officer". Each requires that an officer remove an unlawful non citizen in certain circumstances. I do not consider that the expression "as soon as reasonably practicable" can be construed as referring to the rights or interests of an unlawful non-citizen. The expression is simply a qualification of the duty of an officer to remove an unlawful non-citizen. Removal from Australia, under those provisions, is to be effected, by force of law, not as the result of the exercise of an administrative discretion. I do not consider that it is even reasonably arguable that the expression in question must be construed in the way contended for by the applicant. That is the conclusion reached by Hely J and I agree with him. 14 The second ground involves a consideration of the effect of ss 198(5) and (6) together. First it is said that s 198(5) does not apply because the applicant, being a detainee, was entitled to, and applied for, a visa under s 195. Second, it is said that s 198(6) does not apply because it should be construed as referring to the making of a valid application for a substantive visa after detention. 15 Counsel for the applicant acknowledges that such a construction would result in a lacuna in the scheme of ss 198(5) and (6). The contention is that s 198(5) deals with the situation in which an applicant does not apply for a substantive visa or a bridging visa whereas s 198(6) deals only with the position of an unsuccessful applicant for a substantive visa. Thus, according to the scheme of construction advanced on behalf of the applicant, neither s 198(5) nor s 198(6), nor any other provision of s 198 deals with the position of a detainee who applies for a bridging visa after his detention but is unsuccessful in that application. 16 It may be that, if there is ambiguity in the words of s 198, that ambiguity should be resolved in favour of an applicant. I do not see any reason for confining s 198(6) in the way contended for by the applicant in the absence of any language or context that requires such a construction. I agree with the reasons expressed by Hely J in rejecting this contention on behalf of the applicant. I do not consider that the construction contended for is seriously arguable. It follows, in my view, that there is no seriously arguable question that would arise on an appeal from his Honour's dismissal of the proceeding against Mr Davidson and Ms Green. 17 The ground upon which the applicant wishes to contend that the Tribunal erred is that the Tribunal failed to take into account a relevant consideration in making its decision. The relevant criterion that had to be satisfied, in determining whether or not to grant a bridging visa, was whether the decision maker for present purposes, the Migration Review Tribunal, was satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The applicant contends that, in determining whether or not an arrangement is acceptable, there must be taken into account the interests of the applicant's children and the hardship they might suffer if the applicant is removed from Australia prior to the determination of their application for protection visas. 18 The first difficulty with such a contention is that it was not the subject of any application to this Court. The argument advanced on behalf of the applicant is that, where there was a failure to take into account a relevant consideration, that would constitute a ground of review under s 476(1)(b), (c) or (e) of the Migration Act. It is common ground that a decision of the Migration Review Tribunal was a judicially reviewable decision. The relevant subparagraphs of s 476 provide as follows: "476 An application may be made for a review by the Federal Court of a judicially reviewable decisionon any one or more of the following grounds … (b) that the person who purports to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; … (e) that the decision involved an error of law…." In the Minister v Yusuf (2001) 180 ALR 1 the High Court considered the possible application of those provisions in this context. Reliance is placed on that decision by the applicant. 19 However, underlying the contention is the assertion that the Tribunal failed to take into account a relevant consideration. Hely J concluded that, if the Tribunal was required to take into account the children's applications before the Refugee Review Tribunal, then the Migration Review Tribunal did so. The Tribunal referred to evidence that the applicant's children had each made separate applications to the Refugee Review Tribunal and that those applications were yet to be decided. 20 The Tribunal also referred to the fact that, while the applicant produced evidence of a booking to depart Australia on 8 August 2001, he said that he had changed his mind and did not wish to depart until his children's applications had been finalised. Since no date had been set for hearing by the Refugee Review Tribunal, the applicant was unable to make any further firm plans for his departure. 21 The argument advanced on behalf of the applicant is that the requirement that the decision maker be satisfied that the applicant is making, or is the subject of, acceptable arrangements, requires a consideration of what is acceptable, having regard to the position of the applicant's dependents and his wife and children. The primary difficulty with the contention that the failure to take such matters into account is that the Tribunal was not asked to do so. There may be a question as to whether "acceptable" in the phrase in question has any bearing on the position of dependents of an applicant, rather than whether the arrangements are satisfactory to the decision-maker. 22 Putting that question aside, even if the decision-maker is required to have regard to the position of the applicant's dependents, the Tribunal was not, in this case, asked to do so. One could not therefore conclude that it failed to take into account a relevant consideration. In my view, there is no seriously arguable question raised on appeal from his Honour's dismissal of the original application for review of the Tribunal's decision. 23 In the course of the hearing, counsel for the applicant indicated that the balance of convenience, assuming there were seriously arguable questions that could be raised on appeal, lay with the grant of an injunction restraining removal of the applicant. It was said that the detriment to the applicant was that, upon his removal, he would lose workers compensation entitlements that he presently has. It was said that those entitlements were conditional upon the production of regular medical certificates indicating that the applicant was incapable of working and that such medical certificates had to be issued by medical practitioners entitled to practice in Australia. 24 Counsel did not go so far as to say that there were no medical practitioners in Fiji who were capable of issuing such certificates. Counsel asked for the opportunity of adducing evidence if the question were relevant. However, having regard to the view that I have formed concerning the prospects of success on appeal, it is unnecessary to consider the balance of convenience. It follows, in my view, that any application for interlocutory relief pending an appeal should be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 20 December 2001 Counsel for the Applicant: Mr B Zipser

Counsel for the Respondent: Mr P Roberts with Mr R J Bromwich

Solicitor for the Respondent: Blake Dawson Waldron