Lolohea v Commonwealth of Australia

The Legislative Scheme 8 The statutory and regulatory scheme governing the way in which applications for bridging visa Es are dealt with is, as French J once described, "not untypically … fairly tortuous". It may be fairly called "Byzantine". 9 The Migration Regulations are now contained in what, if the Commonwealth printed its regulations, now would be seven volumes, consisting of a total well over two thousand pages. The legislative path, or labyrinth, for ascertaining how these particular visas are to be processed and dealt with has been the subject of a number of decisions of judges of the Court and there is no dispute as to the law that applies. Mr Lolohea's application was made under s 75 of the Act. That provided that if an eligible non-citizen in immigration detention made an application for, relevantly, a bridging visa E and the Minister did not make a decision within the prescribed period (being, as will appear, two working days after it was sighted by a detention review officer) the non-citizen was taken to have been granted a bridging visa of that prescribed class on prescribed conditions, if any, at the end of the period. 10 Under s 46, an application for a visa was valid if, but only if, it was for a visa of a class specified in the application and satisfied the criteria and requirements prescribed under that section (s 46(1)(a) and (b)). Section 46(3) and (4) provided the regulations could prescribe criteria that had to be satisfied for an application for a visa of the specified class to be a valid application. Those criteria could include the circumstances that must exist for the application for a visa of a specified class to be a valid application, how it was to be made, where it had to be made and where an applicant had to be when it was made. The Minister had a duty to consider a valid application for a visa (s 47(1)) but, to avoid doubt, s 47(3) provided that the Minister was not to consider any application that was not a valid application. Section 37 of the Act provided that there were to be classes of temporary visas, to be known as bridging visas, granted in accordance with the provisions of Subdiv AF in which s 75 was found. 11 That takes one to the Regulations. Regulation 2.01 provided that for the purposes of s 31 of the Act, the prescribed classes of visas were the classes set out in the items in Sch 1 of the Regulations. Each class of visa had prescribed criteria for its grant, set out in the relevant part of Sch 2 to the Regulations (reg 2.03). 12 Regulation 2.07 provided that for the purpose of ss 45 and 46, if an application was required for a particular class of visa, the matters set out in the relevant part of Sch 1 could be specified, being the approved form to be completed, and "other matters relating to the application" (reg 2.07(1)(a) and (c)). Critically, reg 2.10A provided specifically for an application for bridging visa E made by an applicant who was in immigration detention and continued: "(2) The person lodging the application (whether or not the person is the applicant) must give written notice of the application to an officer of Immigration appointed by the Secretary to be a detention review officer in the State or Territory in which the applicant is detained." 13 Under reg 2.24, the relevant class of bridging visa E to which Mr Lolohea was entitled was Subclass 050 bridging (general) (reg 2.24(2)(b)). The table to reg 2.24(3) identified the time in which the Minister must make a decision on a bridging visa application for the purposes of s 75(1)(b). That table relevantly, provided in item 2, that when the application was made by a non-citizen who had been immigration cleared (such as Mr Lolohea), a detention review officer had two working days to make a decision. However, if, within two working days after the application was made, a detention review officer signed a declaration that he or she believed that the applicant may not pass the character test under s 501(6) of the Act, then item 2 did not require a decision to be made on the bridging visa application. 14 Then cl 13.05 in Sch 1 specified conditions for an application for a visa to be valid. These conditions were, relevantly, that where an applicant was in immigration detention, an application for such a visa was not valid until a detention review officer for the State or Territory in which the applicant was detained had been informed of the application.

The cases construing the legislation 15 In Cabal v Minister for Immigration and Multicultural Affairs (No 2) (1999) 91 FCR 314, Ryan J considered for the first time how this torturous regulatory path was to be trodden. He held that for a visa application to have been made validly for the purposes of s 46(1)(b) of the Act, it was essential to comply with the conditions specified in item 13.05 of Sch 1 to the Regulations. Accordingly, he held that an application was not validly made unless and until it actually came to the notice of a detention review officer. His Honour said (Cabal 91 FCR 326 [34]): "It is true that an applicant may be unaware of the identity of a designated detention review officer and should not be taken thereby to be deprived of the ability to inform the detention review officer of his or her application. In those circumstances, the applicant can make the application at an office of Immigration and rely on the presumption that it will come to the knowledge of a detention review officer for the relevant State or Territory in the ordinary course of administration of the Department. However, that "informing" of the detention review officer will rarely be simultaneous with, or closely attendant on, the making of the application at an office of Immigration. For example, an application might legitimately be made at an office of Immigration in Darwin and without any departmental dereliction of duty, take some days to be brought to the notice of a detention review officer for the State of Victoria." 16 In Martin v Minister for Immigration and Multicultural Affairs [1999] FCA 1256 at [14]-[18], French J followed what Ryan J had said, observing (at [17]) that there will almost always be some administrative lag between the lodgement of the application and it coming to the attention of the detention review officer: see too Mei Xing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 644 at [3]-[9] per Lehane J. In that case, Lehane J followed an earlier decision of Lindgren J in Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 503 to the effect that s 36(1) of the Acts Interpretation Act 1901 (Cth) had to be applied, for the purposes of item 13.05 and reg 2.10A(2), when determining the end of the period of two working days following the detention review officer being informed of the application for a visa. Justice Lehane held that, by virtue of item 6 in s 36(1), the two working days did not include the date on which the detention review officer had been informed of the application, being the event that made the application valid. In my opinion, that is the correct and appropriate construction of the legislation. 17 Of course, had Mr Lolohea's application been faxed on 30 March 2012 to the correct number, the likely consequence would have been that on Monday, 2 April 2012, it would have been brought to Mr Fitzgerald's attention, in accordance with the ordinary course of the administration of the Department. Thus, had that occurred, despite the use of the incorrect fax number, his earlier application would then have been valid for the purposes of Act and Regulations, and the two-day clock would have started ticking, so that it would have expired on 4 April 2012: see the discussion by Lander J, with whom Marshall J agreed, in a slightly different context in Minister for Immigration and Citizenship v Chan (2008) 104 ALD 361 at 371-372 [53]-[55]. The irregularity in the use of the wrong fax number would have been cured by the application being presented to the only detention review officer in New South Wales at Parramatta, Mr Fitzgerald. However, that did not occur. Something obviously went wrong within the Department. But, it is impossible to say what happened, because the Department has lost any trace of a record of the fax it clearly received on 30 March 2012. Through no fault of Mr Lolohea's making, he appears to have been given an inappropriate fax number by Ms Lijkic. When the application was sent on 30 March 2012 to the Parramatta office of the Department, it arrived on the floor above where it should have and does not appear to have been able to make the transition from there to Mr Fitzgerald's hands. 18 Accordingly, Mr Lolohea had to resubmit his application on 3 April 2012. It then became effective once Mr Fitzgerald was informed of it on 4 April 2012. What has happened is that through no fault of his own, Mr Lolohea's application was considered and finally determined about one week after it would have been determined, had a similar process occurred, as he ultimately experienced. 19 Had things turned out as Mr Lolohea expected on 30 March 2012, a decision would probably have been made on his first application by 4 April 2012, if Mr Fitzgerald been shown it on 2 April 2012. And, if no decision was then made, Mr Lolohea would have been entitled to be granted a visa by force of s 75(1). Had his 30 March 2012 application been refused, as ultimately happened with that of 4 April 2012, he would have made his application to the Migration Review Tribunal on the same day as being notified of the refusal, namely, 4 April 2012. The Tribunal would have been likely to have made a decision by 11 April 2012. In my opinion, the upshot would have been that Mr Lolohea would have been released on or about 11 April 2012. Instead, he has spent one extra week in immigration detention that, through no fault of his own, he ought not to have spent there. 20 However, Mr Lolohea is unable to obtain any redress for his extended detention. That is because of the scheme of the Act. It required that, Mr Fitzgerald actually had to have been informed of Mr Lolohea's application for a bridging visa before it could become a valid application, and until that occurred it did not need to be considered, by force of s 47(3). 21 This is a case where the Minister might wish to consider providing support for an act of grace payment, under s 33 of the Financial Management and Accountability Act 1997 (Cth). Through no fault of Mr Lolohea's, he has been kept in detention in circumstances where something has gone wrong within the Department. He has no legal remedy for the defect in administration flowing from what seems to have been an error by Ms Lijkic in providing the appropriate fax number and the loss of the 30 March 2012 fax when the Department received it on that day. In another case of unlawful detention, Siopis J awarded $3,000 damages for one day's detention, although the facts there were very different: see Commonwealth v Fernando (2012) 200 FCR 1 at 11 [50]. In my opinion, an appropriate award in the circumstances of this case, had Mr Lolohea been able to establish that Mr Fitzgerald had been informed of his application on 2 April 2012, would have been $10,000. 22 I am not satisfied that Mr Lolohea has demonstrated any basis on which, had he made a valid application on 30 March 2012, an award of punitive or exemplary damages could have been made. The circumstances in evidence indicate unfortunate failures in administration, but those occurred without deliberate or reckless conduct. The purpose of an award of punitive damages is to punish and deter, or to deal with a wrongdoer who has shown a conscious and contumelious disregard for the plaintiff's or applicant's rights, so as to deter like conduct being committed again. There is no need for proportionality between the assessment of compensatory and exemplary damages, as was explained in Lamb v Cotogno (1987) 164 CLR 1 at 9, per Mason CJ, Brennan, Deane, Dawson, and Gaudron JJ.

Conclusion 23 Because Mr Lolohea has failed, I must order that his application be dismissed. The Commonwealth seeks an order that Mr Lolohea pay its costs of the proceedings, on the basis that it made an offer to him in December 2012, when it served the principal affidavits upon which it relied. It then provided him with an explanation of the scheme of the legislation, and how it operated in accordance with the facts. The Commonwealth offered to consent to orders that the application be dismissed with no order as to costs. One item in the letter which was supported by material in the affidavits stated that: "No bridging visa e-application by you or on your behalf was received by DIAC on 30 March 2012." 24 In my opinion, that was clearly wrong. It should not have been relied on by the Commonwealth, as a model litigant, since it knew that Mr Lolohea had proved, through the facsimile transmission report given to him by the Department, that his application had been successfully faxed on 30 March 2012 to the Department at Parramatta, albeit to a machine in the wrong section. There could have been no question but that the facsimile had been received. The business record constituted by the facsimile transmission report generated by the Department of Immigration's own facsimile machine made that pellucid. The Department thereafter somehow lost the document. Nonetheless, some attention was devoted in the affidavit material and the Commonwealth's letter of offer to suggesting that this document was not received by the Department on 30 March 2012. 25 In my opinion, this is a case in which, although Mr Lolohea has failed, he has an understandable form of grievance which should have been addressed somewhat more appropriately than it was. It is not a case in which I consider, in the exercise of my discretion, I should award costs to him. However, the circumstances are that he spent seven more days in immigration detention than he should ever have spent, had he been given correct information by the officer of the Department with whom he dealt prior to his sending his application on 30 March 2012 as to the correct fax number. For whatever reason, that application having undoubtedly been received by the Department on a floor above where its true destination should have been, was then lost somehow in the system. I decline to make an order as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.