Soondur v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-02-28|Before: Lindgren J

1 The applicants purport to invoke the Court's jurisdiction under s 486 of the Migration Act 1958 (Cth) ("the Act") and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act").

Chronological account of factual background 2 The first applicant ("Ms Soondur") is a citizen of Fiji. She arrived in Australia on 30 November 1989 with her then husband, Yushrazsingh Soondur, and their daughter, Sanjana (the second applicant), on a visitor's visa of three months' duration from arrival. On 9 February 1990, they applied to remain permanently in Australia (Mr Soondur was the "principal applicant"). The application was for a "Permanent Entry Permit After Entry". On 12 February 1992, a delegate of the respondent ("the Minister") wrote to Ms Soondur advising her that the application had been refused on 3 February 1992 and that she was an "illegal entrant" and had been since 9 February 1990 since her entry permit had allowed her to remain in Australia only until that date. (In fact, a copy of the entry permit in evidence states, consistently with the visitor's visa, that the relevant period was 3 months from 30 November 1989, but nothing turns on the discrepancy.) First application for refugee status (predecessor of protection visa) 3 On 3 April 1992, Ms Soondur's solicitors lodged on her behalf an "Application for Refugee Status in Australia" with the Department of Immigration, Local Government & Ethnic Affairs ("the Department" - later the Department of Immigration & Multicultural Affairs). Included in her application were her husband, her daughter Sanjana, and a second daughter Sheena (the third applicant), who had been born in Australia on 4 November 1991. 4 On 16 July 1993, Ms Soondur's marriage to Yushrazsingh Soondur was dissolved. 5 On or about 28 February 1996, a delegate of the Minister refused Ms Soondur's application for refugee status. On 15 March 1996, Ms Soondur lodged with the Refugee Review Tribunal ("RRT") an application for review of the delegate's decision. On 29 August 1997, the RRT affirmed the delegate's decision to refuse a protection visa. 6 Ms Soondur did not seek judicial review of the RRT's decision. However, on 8 September 1997, her solicitors wrote to the Minister requesting that he exercise his discretion under s 417 of the Act to substitute for the RRT's decision a decision more favourable to Ms Soondur. On or about 25 March 1998 or 2 April 1998 (both dates appear in the evidence), the Minister notified Ms Soondur that he declined to exercise his discretion in her favour. Neither the solicitors' letter nor the Minister's response is in evidence.

Application for spouse visa 7 On 15 July 1999, Ms Soondur lodged an application for a General Residence Class Visa, Spouse Subclass ("spouse visa"), which included her two daughters. At that time, neither she nor they held a visa (her last Bridging Visa was a "Bridging Visa E" which had been granted on 1 April 1998 and expired on 1 June 1998). Ms Soondur was nominated for the spouse visa by George Kishor Sahai. She claimed, with his support, that she and he had been de facto spouses since 1995. 8 The application for the spouse visa contained submissions on Ms Soondur's behalf by migration agents, Tahmina & Associates, dated 13 July 1999. The address of that firm on its letterhead was "36 Lillian St, Berala, NSW 2141". That address was also the address to which, Ms Soondur indicated in her application, she wanted correspondence to be sent. 9 On 10 August 1999, the Department wrote to Ms Soondur "c/- Tahmina & Associates, 36 Lillian Street Berala NSW 2141" notifying her that it had been determined that the spouse visa application was invalid. The reason given was that Ms Soondur was not the holder of a substantive visa and had had an application for a visa refused since last entering Australia. Reliance was placed on ss 46 and 48 of the Act. The relevant provisions of those sections were to the effect that an application for a visa was valid only if it was not prevented by s 48 (s 46), and that a non-citizen in the migration zone who did not hold a substantive visa, and after last entering Australia had been refused a visa for which the non-citizen had applied, might not apply for a visa of any class other than a class specified in the Regulations (s 48). A spouse visa was not so specified. On this basis, Ms Soondur's application for the spouse visa was invalid. 10 It is Ms Soondur's allegation (and Tahmina Rahim of the firm mentioned has provided an affidavit in support) that the Department's letter dated 10 August 1999 was not received by her or by Tahmina & Associates. It follows from my conclusions below, however, that a non-receipt by Ms Soondur of the letter is not relevant to any issue I have to decide.

Second application for protection visa 11 On 17 March 2000, Ms Soondur applied for a protection visa under her maiden name, "Prem Lata Prasad". She included in the application her two daughters, Sanjana and Sheena, as family members. Her solicitor asserts that she did not sign this application. For convenience of expression I will refer to the application as if she made it, but refrain from making a finding as to whether she did or not, because it follows from my conclusions below that whether she did or not is irrelevant to any issue I have to decide. 12 On 23 March 2000 the Department wrote to Ms Soondur advising her that she had not been entitled to make this second application for a protection visa for the reasons mentioned in the next paragraph. Her solicitor asserts that she did not receive this letter but it follows from my conclusions below that whether she did or not is irrelevant to any issue I have to decide. 13 Since Ms Soondur had previously unsuccessfully applied for refugee status, s 48A of the Act disentitled her to make this second application for a protection visa unless the Minister were to give a written notice under s 48B of the Act (the relevant provisions of both sections are set out below). Accordingly, on 11 April 2000, the application was referred, as a matter of administrative process, for consideration against the Minister's Guidelines relating to requests for Ministerial intervention under s 48B. On 12 April 2000, the application was assessed by a Departmental "Case Manager" as not meeting the Guidelines. On 13 April 2000, the Department wrote to Ms Soondur informing her that she had been disentitled to make this second application for a protection visa; that her request for the exercise of the Minister's power under s 48B had been assessed against the Minister's Guidelines; that her request did not meet the Guidelines; and that her case would not be referred to the Minister for consideration under s 48B. 14 On 18 October 2000, Ms Soondur and her children were taken into immigration detention under subs 189(1) of the Act (subs 189(1) is set out below).

Third application for a protection visa 15 On 19 December 2000, Ms Soondur made a third application for a protection visa, with the assistance of Star Carver & Co, her present solicitors. The application again included Sanjana and Sheena. The next day, 20 December, the Department wrote to Ms Soondur informing her that the application had not been accepted as a valid application and would be referred for consideration as to whether the Minister's discretion under s 48B of the Act might be exercised. On 22 December 2000, a Case Manager found that this third application for a protection visa did not meet the Minister's Guidelines in relation to s 48B. On the same day, 22 December, the Department wrote to Ms Soondur advising her, in relation to this third application for a protection visa, in terms similar to the terms of its letter to her dated 13 April 2000 (referred to above) relating to her second application for a protection visa. 16 On 24 January 2001, Ms Soondur and her children were granted bridging visas and released from immigration detention.

Grounds of the present application 17 In the application for an order for review, filed on 9 January 2001, Ms Soondur attacks two decisions of the Minister's delegates. 18 Part A of the application seeks: "to review a decision of the Department of Immigration and Multicultural Affairs ('DIMA') that it erred [sic] in refusing to accept the applicant's application for a Protection Visa under Section 50 of the Migration Act 1958. The decision was notified to the applicant by letter dated 22nd December 2000." The grounds stated as relevant to this aspect of the application are as follows: "1. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as existing at the time of the lodgment of the application (for a Protection Visa, under Section 50 of the Migration Act), to DIMA. 2. The casework officer from DIMA erred in failing to properly assess the application under section 50 of the Migration Act by not taking into consideration the 'coups' in May 2000 and disregarding the effect of such 'coups' upon the lives of the applicant and her children being of 'indian fijian' origin. The applicant's children would suffer extreme hardship if they have to cope with a new life in Fiji where their livelihood is at considerable risk. 3. The casework officer erred in failing to refer the application to the Minister in accordance with the guidelines as set down by the said Minister." 19 Part B of the application seeks: "to review a decision of the Department of Immigration and Multicultural Affairs ('DIMA') to detain the Applicant and her two children Sanjana Soondur born 25th October 1985 in Mauritius and Sheena Singh Soondur born 4th November 1991 in Sydney, Australia on the basis that they were unlawful citizens." The grounds stated as relevant to this aspect of the application are as follows: "1. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as existing at the time of the arrest of the applicant and her two children. 2. The Respondent failed to comply with the rules of procedural fairness by denying the applicant the opportunity to appeal the decision of the Respondent on 10th August 1999 by failing to communicate his decision to the Applicant and/or her Migration Agent, as required by Section 53(6) of the Migration Act 1958. 3. The Respondent made a decision that involved an improper exercise of power in that it failed to take relevant considerations into account. 4. The Respondent did not properly consider the effect of the breakup of the family as a separate ground when he made his decision to refuse to grant a resident status. 5. The Respondent failed to consider the 'primary consideration' in regard to the children by not paying any regard to the best interests of the children and refusing to allow the release of the children in pursuance of a Court Order made by the Family Court on 13th November 2000. 6. That the Respondent be held liable to compensate the Applicant for such damages for the wrongful imprisonment of the Applicant and her two children as named above, in breach of the rules of natural justice."

Notice of objection to competency 20 On 10 January 2001, the Minister filed a notice of objection to competency, the substantive parts of which are as follows: "In relation to Part A of the application, the respondent objects on the grounds that: 1. There is no decision under s 50 of the Migration Act 1958 relating to the applicant. 2. Part A of the application does not identify any decision: (a) made under the Migration Act 1958, or the Migration Regulations, relating to visas within the meaning of s 475(1)(c); or (b) within the meaning of s 5 of the Administrative Decisions (Judicial Review) Act 1977. 3. The 'conduct' complained of is not conduct for the purpose of making a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. 4. The application does not identify any circumstance where a person has failed to make a decision within the meaning of s 7 of the Administrative Decisions (Judicial Review) Act 1977. In relation to Part B of the application, the respondent objects on the grounds that: 5. Part B of the application does not identify any decision: (a) made under the Migration Act 1958, or the Migration Regulations, relating to visas within the meaning of s 475(1)(c); or (b) within the meaning of s 5 of the Administrative Decisions (Judicial Review) Act 1977. 6. The 'conduct' complained of is not conduct for the purpose of making a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. 7. The application does not identify any circumstance where a person has failed to make a decision within the meaning of s 7 of the Administrative Decisions (Judicial Review) Act 1977."

General 21 Two matters which are not in dispute provide the basis for my dismissal of Ms Soondur's application. The first is that since her arrival in Australia on 30 November 1989, Ms Soondur applied in April 1992 for refugee status and the grant of refugee status was refused on or about 28 February 1996. The second is that, apart from relatively short periods covered by various Bridging Visas, Ms Soondur has been an "illegal entrant" or "unlawful non-citizen" since the expiry of her initial Visitor's Visa, apparently on 2 March 1990 (the expression "unlawful non-citizen" is defined in s 14 of the Act and includes a person who, immediately before the commencement of the Migration Reform Act 1992 (184, 1999) on 1 September 1994, was an "illegal entrant").

Part A - The refusal to accept the application for a protection visa claim 22 Ms Soondur seeks an order that "DIMA … accept the Application under Section 50 alternatively, the Application be referred to the Minister [to be determined] in accordance with his own guidelines, as supported by [the new] evidence as produced by the Applicant". Ms Soondur points to what she describes as "an abundance of evidence" of the changed situation in Fiji since the "May 2000 coups" to support her claim that her third application for a protection visa lodged on 19 December 2000 should be resolved in her favour. 23 Ms Soondur relies on s 50 of the Act which is as follows: "If a non-citizen who has made: (a) an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or (b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined; makes a further application for a protection visa, the Minister, in considering the further application: (c) is not required to reconsider any information considered in the earlier application or an earlier application; and (d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information." 24 Ms Soondur submits that s 50 contemplates that the Minister will consider a further application for a protection visa where an earlier application by the same applicant for such a visa has been refused. But s 50 is not to be considered in isolation. The following relevant provisions found in ss 46, 47, 48A and 48B provide the context in which s 50 must be understood: "46(1)… an application for a visa is valid if, and only if:… (d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 161 (criminal justice), 195 (detainees) or 501E (visa refused or cancelled on character grounds)." (my emphasis) "47(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." (my emphasis) "48A(1)Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone. (2) In this section: application for a protection visa includes: (a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and (b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and (c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992." (except for "application for a protection visa", my emphasis) "48B(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. … (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances." (my emphasis) 25 Section 48A prevented Ms Soondur from making the third application for a protection visa on 19 December 2000, because she had applied for refugee status in April 1992 and that application had been refused on or about 28 February 1996. 26 Section 48B empowers the Minister to "suspend" for seven days the disentitling provision contained in s 48A. If the Minister does so, a further application for a protection visa, made during that period, would attract the operation of s 50. But s 48B gives no right to the non-citizen and imposes no duty on the Minister: see subs 48B(6). Neither s 48B nor s 50 entitles a non-citizen to make a further application for a protection visa. Section 50 addresses questions of information to which the Minister is not required to have regard and information to which the Minister may have regard, if a further valid application for a protection visa is made. Section 50 would operate if the Minister had given a notification under subs 48B(1) and the non-citizen in the migration zone made a further application for a protection visa during the period of suspension of s 48A. But that is not this case. 27 Given that Ms Soondur was throughout a non-citizen in the migration zone, in the absence of any s 48B determination by the Minister, her application of 19 December 2000 was invalid. The Minister was therefore required by subs 47(3) not to consider it. 28 I will not repeat the terms of the Minister's notice of objection to competency in so far as it relates to Part A of Ms Soondur's application. Those terms were set out earlier. The Minister's solicitor submits that the Minister's formation of a view that an application is not valid (for example, because of the operation of par 46(1)(d) and s 48A of the Act) does not constitute a decision that this Court may review. 29 Several considerations tell against this contention. Decisions which are reviewable by the Court are identified in s 475, which provides as follows: "(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:… (c) other decisions made under this Act, or the regulations, relating to visas. (2) The following decisions are not judicially-reviewable decisions:… (e) a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 48B, …" An assessment that an application for a protection visa is invalid is not expressly excluded by subs 475(2) from the definition of "judicially-reviewable decisions". Is such an assessment a "decision … made under [the] Act … relating to visas"? Subsection 47(4) of the Act (set out above) implies that it is, providing, as it does, that 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. This construction is reflected in at least two judgments of the Court, although the Court's jurisdiction to review the delegate's decision that the application was not valid was conceded by the Minister in these cases: Bagang v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 52 (Branson J); Fifita v Minister for Immigration & Multicultural Affairs [2000] FCA 1719 (Sackville J). It seems to me that a decision by the Minister that a further protection visa application is not allowable under s 48A, and hence is rendered invalid under par 46(1)(d), is a judicially-reviewable decision within s 475(1)(c) of the Act. 30 But in Part A of her application Ms Soondur seeks review of a decision made under s 50 of the Act. The Minister's objection to competency must be understood against that background. My reasons above and my conclusion that the Act operated unilaterally to require the Minister not to consider Ms Soondur's third application for a protection visa have the effect that there was no decision under s 50 at all, and therefore no relevant decision relating to a visa within par 475(1)(c) of the Act, and no relevant decision of an administrative character made under an enactment within the definition of "decision to which this Act applies" in subs 3(1) of the AD(JR) Act. Accordingly, I uphold the Minister's objection to competency in so far as it relates to Part A of Ms Soondur's application.

Part B - The unlawful detention claim 31 Ms Soondur seeks a declaration that "the arrest and detention of [herself] and her two children on 18th October 2000 was unlawful and in breach of the established rules of natural justice and procedural fairness". She submits that because the letter from the Department dated 10 August 1999 referred to earlier was not received by her or her migration agents, Tahmina & Associates, the decision to detain her and her children on the basis that they were unlawful citizens is "legally flawed". She submits that as a result of the non-receipt of the letter, she was denied the opportunity to apply for review of the decision or to make a further application for a visa. 32 But, as noted above, it is not, and could not be, in dispute that Ms Soondur and her children were unlawful non-citizens at the time of their detention on 18 October 2000. Her solicitor's submission includes the following: "The applicant concedes that at the time of arrest on 18th October 2000, she was illegal as was her two children. The matter of concern is whether she became illegal by the act of DIMA. This must be answered in the positive as Section 53(6) was not complied with." Subsections 53(4) and (6) of the Act are as follows: "(4) An applicant may tell the Minister that a specified person at a specified address may be given notifications for the applicant about the application. (5) … (6) If the Minister has been given the name and address of a person under subsection (4), the Minister must give notifications to the applicant by giving them to that person at that address and a notification so given is taken to have been received by the applicant." 33 Additionally, Ms Soondur submits that the decision to detain her and her daughters was based on the existence of a particular fact (that she was aware of the rejection letter of 10 August 1999), whereas that fact did not exist: cf pars 476(1)(g) and 476(4)(b) of the Act. 34 The Minister submits that the letter of 10 August 1999 was not relevant to the lawfulness of the detention. First, he submits that that letter and the application for the spouse visa to which it referred have no impact on the "unlawful non-citizen" status of the applicants, the applicants' then latest valid Bridging Visa having expired long before 15 July 1999, so that the applicants were unlawful non-citizens even at the time of the making of the application on that date for the spouse visa. No Bridging Visa was issued to Ms Soondur and her children in relation to that application and they were unlawful non-citizens well before, and entirely apart from, the notification letter of 10 August 1999. Accordingly, so the Minister's submission goes, "[t]he applicants did not 'become' unlawful by any act or omission of the respondent". 35 Ms Soondur does not point to any error in the information conveyed to her by the Department's letter dated 10 August 1999. She does not dispute that she had indeed been refused a visa and that her application for the spouse visa was therefore invalid. A failure to notify her of these matters did not contribute to her status as an unlawful non-citizen on 18 October 2000. 36 Subsection 189(1) and s 196 of the Act provide, relevantly, as follows: "189(1)If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person" and: "196(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa." 37 It is clear that subs 189(1) operated unilaterally to require the officers in question to detain Ms Soondur and her two daughters. This conclusion supports the terms of the notice of objection to competency in so far as it relates to Part B of Ms Soondur's application, which were set out earlier and which I will not repeat. There was no relevant decision relating to a visa within par 475(1)(c) of the Act, and no decision of an administrative character made under an enactment within the definition of "decision to which this Act applies" in subs 3(1) of the AD(JR) Act, of which Part B of Ms Soondur's application seeks review. Accordingly, I also uphold the Minister's objection to competency in so far as it relates to Part B of Ms Soondur's application.

Conclusion 38 For the above reasons the application will be dismissed as incompetent with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Solicitor for the Applicants: Mr PGS Carver of Star Carver & Co

Solicitor for the Respondent: Mr A Markus of the Australian Government Solicitor

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