Potier v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The respondent ("the Minister") moves by notice of motion filed 4 April 2000 for dismissal of the application. Accordingly, the Minister bears the heavy burden of demonstrating that the proceeding does not raise any real question that the applicant ("Mr Potier") is entitled to have tried in the usual way: see, for example, Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Webster v Lampard (1993) 177 CLR 598 at 602. The substantive application and amendments of it 2 The proceeding was commenced on 27 March 2000 when Mr Potier filed an application seeking review of what his application referred to as a "decision of John Macleod, a delegate of the respondent, dated and handed to the applicant on 23 March, that the applicant is not entitled to lodge a further application for a Bridging Visa E." In fact the Minister's delegate was Jon Macleod ("the Delegate"). 3 According to the application, the jurisdiction of the Court is invoked pursuant to s 475(1)(c) of the Migration Act 1958 (Cth) ("the Act"). By that provision, the expression "judicially-reviewable decisions" is defined, subject to subs 475(2), to include "decisions made under [the] Act, or the regulations, relating to visas". If there was a decision of the Delegate on 23 March made under the Act or the regulations relating to visas which is not excluded from the notion of a judicially-reviewable decision by subs 475(2) of the Act, Mr Potier was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has jurisdiction with respect to it (s 486). 4 In his application as filed, Mr Potier sought an order that the Delegate's "decision" be set aside and either an order that the matter be remitted to a delegate of the Minister for consideration according to law or an order "that the bridging visa applied for is taken to have been granted pursuant to s 75 of the Act". 5 The stated ground of the application is that the Delegate failed to consider Mr Potier's application for the bridging visa as required by s 65 of the Act. Section 65 provides, relevantly, that after considering a valid application for a visa, the Minister, if satisfied of certain matters specified in the section, is to grant the visa, and if not so satisfied is to refuse to grant the visa. I discuss the notion of a valid application for a visa below. 6 On 31 March Mr Potier said that he wished to amend his application and I granted him leave to do so. He filed a document on 3 April raising further grounds of "unfair bias" and a ground that the Delegate was party to a conspiracy to keep him in immigration detention. The document also asserted that the Delegate decided the bridging visa application against Mr Potier "contrary to section 39B of the Judiciary Act 1903". 7 Section 74 of the Act provides that a further application for a bridging visa is ordinarily not to be made earlier than 30 days after the final determination of an earlier application for such a visa. In circumstances that I will describe below, Mr Potier's application which generated the Delegate's advice of 23 March 2000 was in fact a further application for a bridging visa made by him on 21 March during the currency of such a thirty day period. The thirty day prohibition against the making of further applications for a bridging visa expired on 30 March, after which Mr Potier became entitled to make such a further application. In fact he did so on 4 April. That application was refused on 6 April. 8 On 6 April Mr Potier applied to amend his application in this proceeding a second time so as also to attack the refusal of 6 April. But the events of 4 and 6 April, unlike those of 21 and 23 March, post-dated the commencement of this proceeding. Nonetheless, the Minister did not object to the further amendment. I deferred ruling on Mr Potier's further application for leave to amend until the conclusion of the hearing by which time I would understand the issues better. Having now had time to study the matter, I grant Mr Potier's application to make the further amendment. 9 In the result, Mr Potier's application is now taken to include, in addition to the original ground that "the delegate failed to consider the application [dated 21 March] as required by s 65 of the Act", the "unfair bias" and "conspiracy" grounds notified by Mr Potier on 3 April, and it is also taken to be amended so as to seek review of the refusal of 6 April and to seek the following further order: "An order that the bridging visa applied for is taken to have been granted pursuant to s 75 of the Act." Early background facts 10 There is no dispute about the relevant facts. Mr Potier, a citizen of the United Kingdom, entered Australia on 8 December 1999 on a photo-substituted British passport in the name of "Alexander Mills" with his young daughter who, he said, was called "Alexandra Mills". He was granted a subclass 976 visa which was valid until 10 March 2000. On 16 February 2000 officers of the Australian Federal Police apprehended him. He has been in immigration detention ever since. On 17 February the subclass 976 visa was cancelled pursuant to s 109 of the Act. The ground of cancellation was that Mr Potier had produced a "bogus document", namely the passport in the name of Alexander Mills, and had therefore contravened s 103 of the Act. 11 On the date of cancellation, 17 February, Mr Potier applied for a protection visa. That application included an "ancillary" application for a bridging visa. Also on 17 February Mr Potier lodged a separate application for a bridging visa. Shortly afterwards on the same day, however, Mr Potier asked that his application for the protection visa be put "on hold". On 18 February his separate application for the bridging visa was refused by the Delegate and on 22 February Mr Potier applied to the Migration Review Tribunal ("the MRT") for review of that refusal. 12 Also on 22 February Mr Potier informed the Department of Immigration and Multicultural Affairs ("the Department") that he wished to proceed with his application for the protection visa. On 24 February the ancillary application for the bridging visa was refused by the Delegate and Mr Potier applied to the MRT for review of that decision also. 13 On 29 February the MRT heard together Mr Potier's applications for review of the refusals of his "separate" and "ancillary" applications for a bridging visa. It affirmed the decisions under review. The legislative scheme 14 In order to understand the significance of subsequent background facts, one must have some familiarity with the relevant legislative scheme and I will digress from my account of the facts to describe the key provisions. 15 Sections 74 and 75 of the Act are as follows: "74. Further applications for bridging visa (1) Subject to subsection (2), if: (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and (b) the Minister refuses to grant the visa; the eligible non-citizen may make a further application for a bridging visa. (2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after: (a) if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa - the refusal; or (b) if the eligible non-citizen made an application for such a review - the application is finally determined. 75. When eligible non-citizen in immigration detention granted visa (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) ………………………………………………………………………………….." (emphasis mine) It is not in dispute that at all relevant times Mr Potier has been an "eligible non-citizen … in immigration detention". 16 Regulation 2.23 of the Migration Regulations 1994 ("the Regulations") defines the "prescribed circumstances" referred to in s 74(2) as being: " … that the Minister is satisfied that, although the non-citizen has not made a further application for a Bridging E (Class WE) visa after being refused a visa of that class, the non-citizen now satisfies the criteria for the grant of a visa of that class." (emphasis mine) Migration Regulation 2.24 provides that for the purposes of s 75(1)(a) the prescribed class of bridging visa that may be granted to a non-citizen in immigration detention is Bridging E (Class WE), and that for the purposes of s 75(1)(b) the prescribed period in the circumstances of the present case is "2 working days". 17 The criteria for the grant of a Bridging E (Class WE) visa are set out in Schedule 2 to the Regulations and are referred to later. More recent background facts 18 The above description of the legislative scheme enables me to resume recounting the background facts. The expression "finally determined" in section 74 (2)(b) is "defined" in s 5(9) of the Act in a way that signifies that Mr Potier's two applications for the bridging visa were "finally determined" on 29 February when the MRT affirmed the Delegate's decisions of 18 and 24 February. The result is that the thirty day period referred to in s 74(2) ran from 29 February and expired on 30 March. 19 On 6 March, that is, shortly after the thirty day period had commenced to run, Mr Potier made a further application for a bridging visa. In response to that application, on 8 March the Delegate wrote to Mr Potier's representatives stating that he did not believe that Mr Potier "now met" the requirement for lodgement of a further application for a bridging visa. No doubt those words reflected the words "now satisfies" in reg 2.23 set out above. The letter set out s 74 of the Act and referred to the MRT's decision of 29 February having made Mr Potier "ineligible" until 31 March to make a further application, "unless prescribed circumstances exist". 20 The Delegate's letter of 8 March to Mr Potier's representatives continued as follows: "Therefore, in order for the prescribed circumstances referred to in Regulation 2.23 to exist, your client must (inter alia) satisfy the criteria set out in regulation 050.211 to 050.214 of sub-class 050. You pointed out that the issues that have changed and/or are relevant to be considered are: . A Federal Court determination that Mr Potier had been unlawfully detained from 22-29 February 2000; . his now applying for a 'new' travel document; . DIMA's knowledge that an airline ticket exists; . a 'full hearing' of his daughter's custody case in NSW on 14 March. I have contacted Cathay Pacific and have been advised that the airline ticket in the name of Mills will not be available to Mr Potier for departure. So at this moment Mr Potier is not in possession of a valid airline ticket nor does he currently hold a valid travel document. Because of this he fails to meet the requirement for satisfactory departure arrangements. The other issues you have raised have either been previously known to DIMA or, of themselves, are not eligibility grounds for the issuing of a Bridging Visa E. I am also not satisfied that Mr Potier would abide by visa conditions for reasons that have already been set out in previous decisions. As there are no prescribed circumstances, Mr Potier is not eligible to lodge a further application for Bridging Visa E. Please note this decision is not reviewable." (emphasis mine) 21 On 21 March, Mr Potier lodged a further application for a bridging visa and on 23 March the Delegate wrote the letter which is referred to in Mr Potier's application that commenced this proceeding as follows: "I note your application for a Bridging Visa E that was faxed to me on 21 March. I also had a telephone conversation with you later on that day (21 March). You indicated that the reasons for seeking a bridging visa were: . you want to be able to see your daughter; . you want to be able to prepare your court case I note that on 15 March you lodged a review application with the Refugee Review Tribunal [the evidence does not elsewhere refer to this application to the MRT]. Your agent has advised that you have approached the Minister, seeking his intervention, regarding your dealings with this Department. I refer you to my previous letter of 8 March 2000, which outlined your failure to meet the prescribed grounds for a Bridging Visa E (I enclose a copy of that letter). This current 'application' is made in similar circumstances and, as such, cannot be made before 30 days have expired since your last bridging visa was finally determined; that date being 31 March 2000. Therefore, in order for the prescribed circumstances referred to in Regulation 2.23 to exist, you must (inter alia) satisfy the criteria set out in regulation 050.211 to 050.214 of sub-class 050. As you do not meet these criteria you are not eligible to lodge a further application for Bridging Visa E. Please note this decision is not reviewable." (emphasis mine) 22 As I noted earlier, as Mr Potier was entitled by s 74(1) of the Act to do, on 4 April he made a further application for a Bridging Visa E which was refused on 6 April. "Two working days" 23 Mr Potier submits that his application of 21 March led to a deemed grant of a bridging visa because the Minister did not make a decision within 2 working days to grant or refuse to grant the bridging visa. Similarly, he submits that his application of 4 April led to the deemed grant of a bridging visa because the Minister did not make a decision within two working days to grant or refuse to grant the bridging visa. Although the declaratory order that Mr Potier seeks based on these submissions does not conform well to the terms of s 39B of the Judiciary Act 1903 (Cth), I treat his application for it as purporting to invoke the Court's jurisdiction under that section. If Mr Potier's contention should be accepted, he is, by s 75(1) of the Act, "taken to have been granted" a Bridging Visa E and the Minister must deal with him accordingly. 24 Mr Potier contends that there is to be included in the two working day period the day of the application, so that in the case of his application of 21 March the two day period expired at the end of 22 March, and in the case of his application of 4 April, it expired at the end of 5 April. This view of matters is plainly incorrect. Subsection 36(1) of the Acts Interpretation Act 1901 (Cth) provides: "[w]here in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event". 25 The "two working days" runs from the "making" of the application for a bridging visa of a prescribed class (see s 75(1)(a) of the Act) and the making of such an application is an "act" or "event" within s 36(1) of the Acts Interpretation Act 1901 (Cth). Accordingly, the date of the making of the application (21 March in the one case and 4 April in the other) is excluded from reckoning: the first of the "two working days" is the first working day after the day on which the application is made. 26 Mr Potier sought to gain support from a document issued by the Department called "Visa Options - Notice to Persons in Immigration Detention". That document stated: "The department must make a decision on your bridging visa E within two (2) working days of you making an application (starting at midnight of the day you lodge the application, as described above). If no decision is made within that time then your application for a bridging visa E is automatically granted." (emphasis in original) Far from assisting Mr Potier, by this document the Department was plainly asserting that the day of the making of an application for a Bridging Visa E did not count as the first of the two working days. The remaining issue 27 In the case of Mr Potier's application of 21 March, the Delegate's advice of 23 March was that Mr Potier was "not eligible" to lodge that application. It is arguable that this letter did not betoken a decision made under the Act relating to visas within s 475(1)(c). On the other hand, s 47(4) of the Act (set out below) contemplates that the Minister will take a decision as to whether an application for a visa is valid or not, while making it clear that a decision that an application is not valid is not to be considered a decision "to refuse" to grant the visa. In any event, as the Minister accepted, Mr Potier would be entitled to invoke the Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in respect of the supposedly erroneous position taken by the Delegate that Mr Potier was not entitled to make his application of 21 March and I have proceeded on the basis that he has invoked that jurisdiction. 28 As noted earlier, the obligation to grant or refuse a visa imposed on the Minister by s 65 is expressed to be conditional upon the existence of a "valid application". Subsections 47(1), (3) and (4) of the Act provide as follows: "(1) The Minister is to consider a valid application for a visa. (2) … (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa." 29 The Minister submits that Mr Potier's application of 21 March was "not valid" because it was made before the thirty-day period referred to in s 74(2) had expired. But the Minister did not refer to the fact that the notion of a "valid" application for a visa is defined in s 46 of the Act. That section provides that in order to be valid, an application for a visa must be made "in the way required by subsection 45(2)". Subsection 45(2) provides as follows: (2) … the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa of a specified class; or (c) an application in specified circumstances for a visa of a specified class." (emphasis mine) 30 Migration Regulation 2.07 provides as follows: "(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa application charge (if any) payable in relation to an application; (c) other matters relating to the application. (3) An applicant must complete an approved form in accordance with any directions on it." A note at the beginning of Schedule 1 to the Regulations explains as follows: "This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47. …" 31 The "particular class" of visa for which Mr Potier applied is Bridging E (Class WE). Bridging E (Class WE) visas are the subject of Item 1305 of Schedule 1. I do not think it necessary to set out Item 1305. The Minister has not submitted that Mr Potier did not apply "in the way" referred to in that Item. That Item does not refer, expressly or by implication, to the thirty-day prohibition on further applications contained in s 74(1) of the Act. Accordingly, subject to what follows, I will proceed on the basis that the Minister was obliged by s 65 of the Act to consider Mr Potier's applications of 21 March and 4 April. (Provisions of the Regulations relevant to the notion of a valid application for a visa were considered in Ramos v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 329 (FC).) 32 In relation to Mr Potier's application of 21 March, the Minister relies on s 74(2) which had the effect of prohibiting the making of that application unless the "prescribed circumstances" existed, that is, existed at the time of the making of the application on that date. The criteria for the grant of a Bridging E (Class WE) visa to which reg 2.23 refers are set out in Schedule 2 to the Regulations: see s 31(3) of the Act and reg 2.03(1) of the Regulations. It is not in dispute that those criteria are contained in clauses 050.221 and 050.222 of Schedule 2. The clause 050.221 criterion is that the applicant "continues to satisfy the criteria set out in clauses 050.211 to 050.214". Clauses 050.211 to 050.214 set out criteria to be satisfied at the time of application. They include a criterion that "the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia" (clause 050.212(2)) and that "[t]he Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it" (clause 050.213). It will be recalled that the Delegate's letter referred to the fact that the Minister was not satisfied as to these two matters. 33 In my view, Mr Potier has not raised a triable issue that the "prescribed circumstances" existed when he applied on 21 March. He cannot show that by that time the Minister was, or was obliged to be, satisfied that he (Mr Potier) was making, or was the subject of, acceptable arrangements to depart Australia or that if the visa sought were granted, he would abide by the conditions imposed on the visa. The Delegate's letter of 23 March, incorporating, as it did, the content of the letter of 8 March, establishes that the Minister was not satisfied of those two matters. While I do not accept the Minister's submission that the effect of s 74(2) and reg 2.23 is that a person may not make a further application before the expiry of the thirty-day period unless "invited" by the Minister to do so, the effect of the provisions is that in the absence of some such outstanding circumstance, it may be difficult for a person to raise a triable issue as to whether the "prescribed circumstances" referred to in reg 2.23 existed when he or she made the further application. 34 I need not decide finally whether s 74(2) and reg 2.23 did or did not have the effect of rendering Mr Potier's application of 21 March "not valid" since, on the assumption that they did not, they had the effect that it could not succeed. Either way, the Minister succeeds on his motion for summary dismissal in so far as it relates to Mr Potier's application of 21 March. 35 In relation to the refusal on 6 April of Mr Potier's admittedly valid application of 4 April, the Minister submits that this was an "MRT-reviewable decision" (it was: see s 338 of the Act); that Mr Potier is entitled to apply to the MRT under Division 3 of Part 5 of the Act for review of that decision (he is: see ss 347 and 348 of the Act); and that the availability of this "more convenient and satisfactory remedy" is a reason why the Minister's motion for summary dismissal should succeed in so far as it relates to that decision (the Minister refers to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, 407; Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 at 832; Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330 at [47]). But the present issue is covered expressly in the Act. Subsection 475(1)(c) which declares decisions made under the Act, or the regulations, relating to visas to be "judicially-reviewable decisions" is expressed to be subject to subs 475(2). Subsection 475(2) provides, by reason of para (c), that an MRT-reviewable decision is not a judicially-reviewable decision. Moreover, subs 485(1) provides that in spite of any other law, including s 39B of the Judiciary Act 1903, this Court does not have any jurisdiction in respect of either judicially-reviewable decisions "or decisions covered by subsection 475(2)" other than the jurisdiction provided by Part 8 of the Act or by s 44 of the Judiciary Act 1903. 36 Accordingly, the Court does not have jurisdiction under s 39B of the Judiciary Act 1903 in respect of the Delegate's decision of 6 April 2000 to refuse to grant the visa. Bias and conspiracy 37 These grounds are irrelevant to the operation of the thirty-day prohibition to which I have referred. Even if they were proved they would not affect the operation of that provision. Conclusion 38 In the result, on the Minister's motion the Court orders as follows: (1) The application be dismissed. (2) The applicant pay the respondent's costs.