Potier v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Mr Potier has been in immigration detention since 17 February 2000, the day on which his Electronic Travel Authority (Class UD) Visitor (Subclass 976) Visa was cancelled under section 109 of the Migration Act 1958 (Cth). That section permits the Minister to cancel a visa if the holder has given an incorrect answer in his or her application form for a visa (s 101), or has given an incorrect answer in his or her passenger card (s 102) or has produced a bogus document to an officer of the Department of Immigration and Ethnic Affairs (s 103). Mr Potier used a false name to obtain his tourist visa and he produced a passport in the name of another person, Alexander Mills, when he passed through immigration control. 2 Mr Potier seeks an order that he be released from immigration detention. He says that he holds a Bridging E (Class WE) General (Subclass 050) Visa (the bridging visa) which is valid until 7 March 2000. Accordingly, he says that he is being unlawfully detained. 3 The originating application asks for a declaration that Mr Potier holds a valid bridging visa and an order, in the nature of a mandatory injunction, for his release. The application was filed and served yesterday and I began the hearing early yesterday afternoon. Mr Potier contends that his application is urgent, which if he is being illegally detained it undoubtedly is, and that I should finally resolve his claim. In the alternative Mr Potier indicated that he would move for an interlocutory order, the effect of which would be to secure his release from detention until 7 March 2000. 4 When the hearing commenced Mr R Tracey QC appeared for the respondents, the Minister for Immigration and Multicultural Affairs and Peter Smits. Mr Smits is the officer in charge of the centre where Mr Potier is being held in detention. Mr Tracey had been retained shortly before the hearing began. He accepted that I should deal with the interlocutory application, but said that it would be unfair to the respondents if I were to proceed to a final hearing. The basis of this submission was that some of the facts upon which Mr Potier was relying to found his relief were disputed and the respondents were not in a position to contest those facts. 5 As events turned out, the hearing could not be completed yesterday and it resumed this morning. This delay provided the respondents with additional time to consider their position and it also enabled them to obtain and tender evidence in support of their case. In those circumstances the respondents indicated that they were content for the trial to proceed as a final hearing. 6 The circumstances in which Mr Potier claims to hold the bridging visa are as follows. On 17 February 2000 Mr Potier lodged an application for a Protection (Class AZ) Visa (a protection visa). It is first necessary to consider whether that was a valid application. The question of validity arises because Mr Potier completed and lodged a one page application for a protection visa which he asserts, but the respondents deny, is the only document that was required to be lodged by a person in detention. The one page application came from Part A of what is described as an Application Pack for a Protection Visa (the application pack) supplied by the Minister's department. The application pack was given to Mr Potier while he was in detention. Mr Potier did not complete Part B of the application pack which, if completed, would provide many of his personal details. Nor did he complete Part C of the application pack which, if completed, would explain the circumstances giving rise to his claim for a protection visa. If Mr Potier was required to complete and submit those parts, in addition to the one page application, there is no doubt that he did not make a valid application for a protection visa. The reasons for this conclusion are to be found in the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Applicant "A" [1999] FCA 1679. 7 Whether Mr Potier was required to do more than complete and lodge the one page application will depend upon the meaning that is given to the instructions forming part of the application pack. The first page of the application pack contains a list of its contents. It describes Part A in the following terms: "Part A - Explanatory notes on how to apply for a protection visa, and one page application for persons in detention". This suggests that a person seeking a protection visa who is in detention need do no more than complete the one page application. 8 The first substantive document in the application pack contains the explanatory notes. Those explanatory notes are headed: "How to apply for a protection visa (866)". The notes provide information on how to make an application for a protection visa, including what documents must be completed and what information is to be provided. 9 One instruction given in the explanatory notes is directed to persons who are in immigration detention, or any other sort of custody. The instruction reads: "If you are in immigration detention or any other sort of custody and wish to apply for a protection visa (866), you must complete the one page application form which you will find at the last page of this Part of application form 866. Once you have completed this one page application form, you should lodge it immediately with an officer authorised to receive it, e.g. an officer of the Department, a member of the Australian Federal Police or of the police force. You should retain a copy of this application for future reference." This instruction also suggests that a person who is in custody and wishes to apply for a protection visa need only complete the one page application. 10 On the last page of the explanatory notes there is to be found what is described as an "Application checklist". The checklist advises: "To be a valid application, your application must include: