Reasoning
10 It is not in dispute that the source of the Court's power to make an interlocutory stay order lies in s 23 of the Federal Court of Australia Act 1976 (Cth).
11 The Federal Court Rules ("FCR") draw a distinction between a stay of proceedings and a stay of execution: FCR O 20 r 5 and O 37 r 6 and r 10. The latter two rules refer to the stay of a judgment or order. Both these categories of rules refer to matters within the Court; that is the proceeding or the judgment or order.
12 Here, the stay application invites the Court to stay an administrative decision made outside the curial process. The respondent does not dispute the powers of the Court to make an order staying an administrative decision which is under challenge and which the Court may ultimately quash or hold to be void subject, however, to that decision having some continuing operation or aspect of implementation upon which the court's order may operate. What is disputed and put in issue here is that the Court cannot make a stay order in respect of an administrative decision which is fully implemented and has no continuing operation.
Power of court to preserve subject matter of litigation
13 The submissions for the applicant rely firstly upon a number of High Court authorities recognising that the High Court has an inherent jurisdiction to stay an order of another court even prior to a special leave application having been made. The basis of its intervention is whether a refusal of stay will render the proposed appeal nugatory, although it will only do so where there are "special circumstances" or "very strong and special grounds as shown": The Marconi's Wireless Telegraph Company Limited v The Commonwealth (No 3) (1913) 16 CLR 384 at 386; McBride v Sandland (No 2) (1918) 25 CLR 369, particularly at 374 - 375; Re Marks and Federated Iron Workers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208 at 211 where Mason J said that the stay of an order of the kind there in question pending an application for prohibition was at best "an exceptional undertaking". The order there in question was made under s 142A of the Conciliation and Arbitration Act 1904 (Cth) giving a particular union the exclusive right to represent certain employees. Both Marconi and Marks were applied by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Proprietary Ltd [No 1] (1986) 161 CLR 681. Brennan J said that the jurisdiction to grant a stay depended on whether it was necessary "to preserve the subject-matter of the litigation": at 683. He emphasised that it was an extraordinary jurisdiction and "exceptional circumstances" must be shown before its exercise is warranted: at 684. Brennan J ordered that so much of the orders of Kearney J in the proceedings in the Supreme Court of the Northern Territory as ordered the cancellation of the applicant's liens were to be stayed until the hearing and determination of the applicant's applications for special leave to appeal were heard and determined.
14 However, the order made in Jennings Construction in relation to the orders of Kearney J cannot assist the present applicant. That is because at first instance Kearney J had ordered that liens registered over a crown lease be cancelled but, by consent, had ordered that the judgments and orders be stayed until the hearing of appeals to the Court of Appeal. The Court of Appeal of the Northern Territory subsequently dismissed appeals from his Honour's judgments and ordered that "the operation of his Honour's order cancelling the registration of the liens be stayed to allow the High Court an opportunity to consider whether a stay should be granted pending the determination of the applicant's applications for special leave to appeal": Jennings Construction at 682 - 683. The result was that the orders of Kearney J had not been implemented so that they were capable of being stayed firstly, by the order of the Court of Appeal and secondly by the order of the High Court made by Brennan J.
15 The other High Court authorities referred to for the applicant either relate to an instance of an order with a continuing operation (Marks) or involved the stay of proceedings in the action (McBride).
Analogy to orders for release
16 The submissions for the applicant then turn to contending there is no difference in principle between the Court staying a decision and the Court implying a power to release an applicant subject to a deportation order: Long v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 366; Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1. In the latter decision Hill J determined that the release of the applicant would assist in securing the effectiveness of the hearing and that s 196 of the Act did not prevent the use of s 482 as it then stood to stay a decision to cancel a visa, although on the merits no stay was ordered. Section 482(2) then provided an authority for the Court to make orders staying or otherwise effecting the operation or implementation of a judicially-reviewable decision or part of that decision "for the purpose of securing the effectiveness of the hearing and determination of the appeal". The case for the applicant accepts that there was a different legislative scheme then applicable under the Act. That applies also to the decision of Minister for Immigration, Local Government & Ethnic Affairs v Msilanga (1992) 34 FCR 169, a decision of the Full Court discussed in both Long and Halmi. Hill J also decided that in the legislative context before him s 196 of the Act and, in particular, s 196(3) did not preclude the making of an order for stay if it was otherwise supportable. The reasoning of Hill J was accepted by Madgwick J in Chin Lye Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514.
17 For the applicant it is submitted that even though the decisions in Msilanga, Long and Halmi were made in a different legislative context, the principles which are derivative from them show that once the cancellation of a visa is suspended, the applicant is no longer unlawful and hence cannot be detained pursuant to s 196(3) of the Act. That is not, however, the principal issue here. The question here is whether the Court has any jurisdiction to stay ("suspend") the cancellation when there is no statutory equivalent of s 482(2). The foundation of the reasoning of Hill J in Halmi was the clear legislative intent of Parliament that the Court had jurisdiction to stay the cancellation of a visa in the circumstances provided for in the former s 482(2): see Halmi at 9, par [34]. That is no longer the case, the provision having been repealed with effect from 2 October 2001: Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 3.
Analogy to cancellation of pension
18 Next the submissions for the applicant rely on the analogy said to exist between the cancellation of a permanent visa and the cancellation of a pension. It is said that both affect rights. It is submitted that once a pension is cancelled, there are no further steps to be taken of an administrative nature: payments simply cease. Nevertheless, if the cancellation is stayed or suspended by order of a court or tribunal, the applicant in that situation is entitled to enjoy the right to receive the pension until the matter is determined. Reliance is placed on the decision in Repatriation Commission v Delkou (1985) 8 ALD 454 where it was held, in reliance on McBride, that the whole purpose of an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) was to suspend, or otherwise affect, the legal consequences flowing from a decision of Veterans' Review Board. That subsection provided that the tribunal may make stay orders in relation to a decision "for the purpose of securing the effectiveness of the hearing and determination of the application for review". The Board decision ordered that the veteran receive a disability pension at a special rate. The decision had been implemented to the extent that a lump sum payment of accumulated arrears had been paid. Stay was sought in respect of both the lump sum arrears and the continuing entitlement. Deputy President Hall at 458, par (12) stated that the making of an order under s 41(2) "is predicated upon the premise the decision, or the aspect of the decision, sought to be stayed has not been implemented". He said that in relation to the arrears, the decision of the Board had been given full effect and on that ground alone it would be inappropriate for the tribunal to make any order purporting to stay or otherwise affect that aspect of the decision under review because "there was nothing left to stay". The position was otherwise in Webber v Secretary, Department of Social Security (1989) 18 ALD 422 where there was a case of continuing payments at a reduced rate so that the question of the rate of pay required consideration on each pay day with the result that there was something left to stay. Accordingly, I do not consider that the analogy with pensions assists the applicant's contentions.
Further authorities
19 There are other decisions which I consider support the respondent's contentions. The first is Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342. There, Carr J held that while there is a power in an appropriate case to stay proceedings which might be taken consequent upon the making of a declaratory order, there is no power to stay a declaratory order because once a declaration has been made the legal rights or obligations of the parties the subject of the declaration are settled. After reviewing a number of the authorities previously referred to in these reasons and finding them of no assistance to him on the same point which arises here, Carr J drew attention to a distinction he had recently drawn between staying the operation of a sequestration order pending an appeal against that order and staying certain administrative proceedings designed to give effect to the statutory consequences of such an order: Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297 at 301. He concluded the power to stay the declaration did not exist.
20 For the applicant it is contended the case of a declaration is special because it does not change the status quo but rather declares the existing state of lawful rights. In contrast, it is said the decision of the respondent to cancel the applicant's visa did change the existing state of affairs. In my view the making of a declaration, while declaratory of the existing state of lawful rights, may well have the consequence of declaring rights contrary to prior understandings of them and so involve the requirement of adjustment to a change of status. It would be artificial or too narrow to say that the declaration, while not itself effecting change, could not give rise to changed understandings in relation to which an aggrieved party may seek a stay to contest the making of the declaration. On the authority of Coleman, such stay would be available.
21 There are other decisions of single judges in this Court which point in the same direction and provide further support. In Challoner v Minister for Immigration & Multicultural Affairs (No 1) [2000] FCA 1600, Drummond J made an order restraining the respondent, his servants and agents from giving effect to the cancellation of the applicant's electronic travel authority ("ETA") until further order. That authority was obtained while the applicant in that case was overseas and it entitled him to return to Australia on a multiple entry basis subject to him not being permitted to do work while in Australia which could be done by an Australian. That applicant was informed by the Department of Immigration & Multicultural Affairs that his ETA had been cancelled for breach of the work condition. Drummond J made an order restraining the Minister, his servants and agents from giving effect to the cancellation until further order. However, shortly thereafter in Challoner v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 1601 the parties agreed on a consent variation to the order so that it operated as a restraint upon giving effect to the cancellation decision only to the extent that the cancellation decision would have permitted the Minister to remove the applicant from Australia. Subsequently, Drummond J made an order by consent that the Minister, by his officers, servants and agents, be restrained until the final hearing of the application or earlier order from giving effect to the decision cancelling the ETA visa "to the extent that the decision would otherwise have permitted the Minister to remove the applicant from Australia and to the extent that the decision would have required the applicant to be held in detention". It appears to me that the reformulation of the orders by Drummond J with the consent of the parties was intended to ensure the orders were directed to the effect and operation of the orders rather than to the decision effecting the cancellation.
22 In Guss v Johnstone [2000] FCA 1593, Sackville J pointed out an application to stay proceedings under a sequestration order had been regarded as different from the suspension of the operation of a sequestration order, citing Re Wardle; Ex parte Widin v Australia & New Zealand Banking Group Limited (1987) 70 ALR 633 at 635; Coleman. Subsequently, Sackville J said:
"The appellant's submissions appeared to assume that the stay orders made by the Full Court on 20 May 1999 and subsequently extended by me have prevented his status changing to that of a bankrupt and have also prevented his property vesting in his trustee by virtue of s 58(1) of the Bankruptcy Act. This assumption appears not to be correct. It has been suggested that a stay of proceedings under a sequestration order (as distinct from a suspension of the sequestration order) does not prevent the change of status and the vesting of property which takes effect by statute on the making of a sequestration order: Re Wardle, at 635, per Neaves J; see also Allanson v Midland Credit Ltd (1977) 30 FLR 108, at 112-113. However, a stay in these terms prevents the taking of various administrative steps that are normally taken under the Bankruptcy Act once a sequestration order is made: Coleman v Lazy Days, at 301."
23 Having considered these authorities I am of the view that the respondent's principal submission is correct. That is, I accept that, absent statutory authority of the type which appeared in the former s 482 of the Act, the Court has no power to stay an administrative decision which has taken effect in law so as to affect legal rights so that there is no continuing aspect of the decision remaining to be stayed. If, however, the decision has continuing effects the Court has power, subject to any statutory provision, to stay those effects or some of them subject to it being otherwise appropriate for a stay order to be made. In this respect I note that s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) distinguishes between the suspension of the operation of the decision and a stay of all or any proceedings under the decision.
24 I do not consider that a different result can be reached by placing reliance on s 23 of the Federal Court of Australia Act 1976 (Cth) as the accepted source of the Court's power to stay. This is because, absent a provision such as the former s 482(2), the decision to the extent it has taken effect is beyond stay.
25 There is a further issue latent in the above cases. It is whether it is correct for the Court to proceed on the basis of the characterisation of the detention of the applicant as a continuing effect of the decision to cancel his visa. For the respondent it is submitted that such characterisation is inappropriate because of the application of ss 189 and 196 of the Act, rather than because of the decision effecting the cancellation. In view of the decision in Halmi to the contrary (but founded on the prior statutory authority) and the concession on the point made in respect of the present applicant's detention, it is unnecessary to decide this issue here.