Madafferi v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT HIS HONOUR: 1 The applicant, a citizen of Italy, is presently held in immigration detention. He has been held in immigration detention since 16 March 2001. Today he issued an application seeking the following relief: · a declaration that on and from 13 June 2001 he is a non‑citizen who holds a visa for the purposes of the Migration Act 1958 (Cth) ("the Act"); · in the alternative, a declaration that on and from 13 June 2001 the applicant has been a lawful non‑citizen. He also filed today a notice of motion seeking declarations on an interlocutory basis in the same terms. If the applicant is entitled to either of the declarations, then there is no basis upon which he can be kept in immigration detention. 2 The position of the Minister for Immigration and Multicultural Affairs ("the Minister") is that the applicant is not entitled to either of the declarations sought, but that if the declarations are made, the Minister would observe the consequences of the declarations and release the applicant from immigration detention. In substance, I am being asked to grant final declaratory relief on an interlocutory application. 3 The facts giving rise to the circumstances under which the applicant was taken into immigration detention are set out in the judgment of Marshall J in Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 581. It is not necessary to repeat the facts narrated in that judgment. The judgment explains the applicant's background, how he came to Australia on several occasions, married in Australia, has had children in Australia and was finally taken into custody on 5 July 1996 for overstaying a visa, although he was subsequently released from custody after a surety was paid. 4 More recently, on 18 October 2000, the Minister, pursuant to s 501A(2)(a) of the Act, personally refused to grant a visa to the applicant. On 26 October 2000, the applicant filed an application with the Federal Court for an order of review of the Minister's decision. On 18 May 2001, Marshall J dismissed that application and an appeal against the dismissal of the application was filed in the Court on 5 June 2001. As I have observed earlier, the applicant is currently in immigration detention. On Thursday, 7 June 2001, the applicant delivered to an officer of the Department of Immigration and Multicultural Affairs ('the Department"), an application for a protection visa in the form of Form 866. Under the relevant regulations and practices of the Department, it was open to the applicant to make a one‑page application using Form 866. 5 The applicant's application for a protection visa does not set out any basis or grounds upon which the application is made. I proceed on the basis that the application is a valid application for a protection visa, and I draw no inferences or conclusions adverse to the applicant from the terms of the application, or the fact that it is only a one‑page application. Since that application was lodged, the applicant has not been advised, or notified of any decision on his application. The applicant contended that his application for a protection visa was deemed to include an application for a bridging visa and that by virtue of the provisions of s 75 of the Act, he was taken to have been granted a bridging visa which was deemed to have been granted to him two working days after his application was made, that was on Wednesday, 13 June: see reg 2.24(2)(a) of the Migration Regulations. 6 The Minister did not accept the applicant's contention that he was taken to have been granted a bridging visa and rejected the proposition that the lodging of the application for a protection visa automatically included an application for a bridging visa. The Minister relied upon s 501E of the Act which provides: "(1) A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if: (a) at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and (b) the decision was neither set aside nor revoked before the application time. (2) Subsection (1) does not prevent a person, at the application time, from making an application for: (a) a protection visa; or (b) a visa specified in the regulations for the purposes of this subsection." 7 The Minister submitted that the decision which he made on 18 October 2000 was a decision which came within s 501E(1)(a) as it was a decision under s 501A of the Act and that subs (2) did not prevent the applicant from making an application for a protection visa, but that s 501E, properly construed, prevented the applicant from making an application for a bridging visa. The applicant countered this submission by submitting that the application for the protection visa included an application for a bridging visa. He relied upon provisions of the Regulations and forms prepared by the Department. He submitted that because a protection visa included an application for a bridging visa, the application for the bridging visa came within s 501E(2)(a) of the Act with the result that, by virtue of the provisions of s 75 of the Act, he was now taken to have been granted a bridging visa. Section 75 provides: "(1) If: (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and (b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa; the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period. (2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister." I note that the prescribed period for the purpose of s 75(1)(b) is two working days: reg 2.24 of the Migration Regulations. 8 Regulation 2.07 provides that the relevant forms for visa applications are found in Sch 1. The relevant forms for a Bridging E (Class WE) visa are found in item 1305 in Sch 1. Item 1305 sets out a number of forms which are the forms upon which an application for a bridging visa may be made and it includes Form 866, that is the form which the applicant used in this case to apply for his protection visa. It appears to follow from item 1305, and the regulations which support it, that an application for a bridging visa is made when an application is filed for a protection visa using Form 866. This construction is adopted in a number of the Department's documents. I refer, for example, to a document which was placed before me which I understood to be a procedures advice manual which stated in paragraph 2.3.1 "… a Protection visa application form (Form 866) is also an application for a Bridging E visa." 9 In Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 252 at [15], Finkelstein J observed "When a non-citizen applies for a protection visa the application also serves as an application for a bridging visa." His Honour noted that there were various forms of bridging visas. The one that was relevant for his purposes, and is relevant for the present purposes, was Bridging E (Class WE) visa, and his Honour referred to item 1305 in Sch 1 to the Migration Regulations. 10 When one views the Regulations in isolation, it appears to follow that an application in the form of Form 866 is regarded so far as the Regulations are concerned as a valid application for a protection visa. However, a note of caution is expressed in what is called the application pack for a protection visa using Form 866, which notes: "This form also serves as an application for bridging visa, if you are able to make a valid application for a bridging visa." 11 The applicant also relied upon reg 2.07A to demonstrate that an application, in the form of Form 866, was a valid application for a bridging visa, as it was not a form which was excluded by that regulation. To complete the sequence which leads to the result for which the applicant contended, item 1305 provides that the conditions upon which a Bridging E (Class WE) visa is to be granted are to be found in subclass 050, which contains provisions relating to Bridging (General) and subclass 051, which relates to Bridging (Protection Visa Applicant). Subclass 051 does not appear to apply to the applicant because of the provisions of item 051.211, which provides that one of the criteria to be met at the time of application is that the applicant is an eligible non‑citizen referred to in sub‑regs 2.20(7), (8), (9), (10) or (11). On the material before me, the applicant does not fall into any of those sub‑regulations. 12 Rather, it appears that the applicant falls within the criteria specified in item 050.21, in that he is an unlawful non-citizen. This has consequences for the length of time that an applicant is permitted to remain in Australia. If subclass 051 applies, that period is either, if the Minister's decision is to grant a protection visa, the grant of the visa, or if the decision is to refuse to grant the visa, twenty‑eight days after the holder is notified of that refusal. However, under subclass 050, in the events which appear to apply, the relevant period of time is five working days. 13 The key issue before me is whether, for the purposes of s 501E(2)(a), the expression "a protection visa" includes an application for a bridging visa, which is made by filing an application for a protection visa under the provisions to which I have referred. 14 Section 45 of the Act provides that, subject to the Act and the Regulations, a non‑citizen who wants a visa must apply for a visa of a particular class. Section 46(1) provides that subject to subsection (2), an application for a visa is valid if, and only if, a number of conditions are satisfied. Relevantly for present purposes, one of those conditions is that the application for the visa is not prevented by s 501E of the Act: s 46(1)(d). 15 The matter before me is an application for interlocutory relief which in substance seeks, on one view, final relief and on another view seeks the equivalent of a mandatory order, because if the declarations were made, the result would be, in substance, that the applicant would be released from immigration detention. 16 I must approach the matter on the basis of the relevant principles applicable to interlocutory relief, that is, that there is a serious question to be tried: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153‑154; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 195 CLR 1 at 24 and that the balance of convenience is in favour of the grant of the relief sought: : Castlemaine Tooheys Ltd v South Australia (supra) at 153; Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. There has been a suggestion in some of the decisions that I should have a high degree of assurance in a matter of this nature, which is in effect seeking final relief or mandatory relief on an interlocutory basis: see Shepherd Homes Ltd v Sandham [1971] Ch 340; Australia National Airlines Commission v Commonwealth of Australia (1986) 66 ALR 545. However, that test was eschewed by Gummow J in Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502‑504. His Honour preferred the approach taken in Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196 at 207‑208 that is to say, one approaches the matter as one of discretion having regard to the particular circumstances of the case and the seriousness of the consequences of the order if made. A similar approach was taken by Kiefel J in Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Qld (1995) 58 FCR 119 at 123. I adopt the same approach as taken by Gummow J and Kiefel J in the sense that although the matter is one where mandatory relief is effectively sought, I should consider the matter on the basis of whether there is a serious question to be tried, taking into account the fact that the applicant is in immigration detention and held against his will, and the consequences of an order not being made or being made, as the case may be. 17 Having regard to the relevant principles to which I have referred, I am not satisfied that there is a serious question to be tried that the expression "a protection visa" in subs 501E(2)(a) includes within it "a bridging visa", in the sense that a bridging visa application is a part of a protection visa application by virtue of the provisions of the Regulations and Forms to which I have referred. Section 501E came into the Act at a time when there was a clear distinction recognised between various classes of visas, and in particular between a protection visa and a bridging visa. The Regulations seem to proceed on the basis, as observed by Finkelstein J in Potier v Minister for Immigration and Multicultural Affairs (supra), that an application for a protection visa is taken to be, or serves as an application for a bridging visa. As a matter of regulatory requirement and administrative practice, there may be considerable sense in that approach being taken, but Departmental practice and the provisions of the Regulations cannot override or detract from the provisions of the Act. It seems to me that s 46 which provides that an application for a visa is valid if, and only if, it is not prevented by s 501E of the Act, recognises the fact that from the point of view of the statute, it is the statute which provides the visas for which applications may or may not be made in the circumstances set out by s 501E. 18 I do not consider that there is any doubt that what is expressly excluded from the proscription on applying for a visa, is a protection visa, which is well defined for the purpose of the Act and the Regulations. I do not consider that the fact that an applicant may append or attach an application for a bridging visa to an application for a protection visa, for the purposes of the Regulations and Departmental practice, has the result that an applicant is allowed by s 501E(2) to make an application for a bridging visa in the circumstances there set out. 19 Although I am prepared to accept that for the purpose of the Regulations, the lodging of an application for a protection visa also constitutes the lodging of an application for a bridging visa, there are nevertheless two visas applied for, albeit on the one form. By virtue of the operation of s 46(1) of the Act and s 501E(2) of the Act, to the extent to which that application, joint though it may be, is an application for a bridging visa, it is excluded by virtue of the provisions of s 501E(2) of the Act. 20 For those reasons, the relief sought in the notice of motion should be dismissed. 21 In those circumstances, it is not necessary to turn to the balance of convenience. But I should point out that if I had been otherwise disposed to accept the submissions of the applicant as to the proper construction of the Act and the Regulations, I would have rejected the submission of the Minister that the balance of convenience was against the grant of an application for the declaration sought. The Minister based this submission on item 050 of the Schedule which provided that any deemed grant of a bridging visa would only be for five working days. This would have the consequence that at the expiration of next Tuesday, 19 June, the applicant would again be taken into immigration detention. The effect of that submission is that if I had thought there was a serious question to be tried, then because there would only be two days during which the relief should be granted, that was a reason against granting the relief. 22 If I had taken the view that the detention of the applicant was arguably unlawful, in the sense that there was a serious question to be tried as to that issue, I would have taken the view that the relief should have been granted, albeit it only for two days. If a detention is arguably unlawful, then even one day of detention is a day which should not be allowed to occur. One does not measure the balance of convenience so much against the period during which the applicant would be allowed out of immigration detention, but rather against the proposition that his liberty should not be constrained, if there was a serious question that it was unlawful.