VJAB v Minister for Immigration & Multicultural & Indigenous Affairs

· a declaration that the decision of the Refugee Review Tribunal ("the RRT") of 20 September 2002 and the decision of a delegate of the respondent that the RRT purported to review are void. 2 By way of interlocutory relief, the applicant sought an order restraining the respondent from continuing to detain him in immigration detention under the Migration Act 1958 ("the Act"). 3 The application for interlocutory relief was heard by the Court on 9 October 2002. At the conclusion of submissions the Court announced that it intended to grant the interlocutory relief sought by the applicant. It directed that the respondent bring the applicant to Court at 2 pm on 11 October 2002 and adjourned the application for interlocutory relief to 2.30 pm on 11 October 2002 to enable the applicant to give certain undertakings to the Court relevant to his release from immigration detention. 4 What follows are the Court's reasons for judgment on the issue of interlocutory relief.

Factual background 5 The applicant is a citizen of Afghanistan and is of Hazara ethnicity. He entered Australia by boat in March 2001 as an unlawful non-citizen. He was detained, at that time, in immigration detention at the Curtin facility in Western Australia. On 14 September 2002, he was transferred to the Baxter facility at Port Augusta in South Australia and has been detained there since that time. 6 On 27 July 2001, the applicant applied for a protection visa. That application was considered by a delegate of the respondent, Ms Flora Vigors ("the first delegate"). 7 On 16 August 2001, the first delegate completed a form which was entitled: "Article 1A and Effective Protection Preliminary Assessment and PV 785 Decision (Iraqi and Afghani cases - grants only)." For internal purposes in the respondent's department this form is known as an "ABDR" form. 8 Apart from certain formal matters the first page of the form contains three elements being: · "Introduction"

9 The section headed "Introduction" provides as follows: "This form, to be used only for Boat Task Force Iraqi and Afghani approvals, has three parts: Part A- At Part A you record and briefly explain your findings concerning the applicant's access to protection in a country other than Australia and whether he or she comes within the meaning of "refugee" in Article 1A of the Refugee Convention, subject to any information being provided in relation to exclusion clauses. Part B- Part B is a checklist of the findings that you need to make before completing Part C. Part C- At Part C you record your decision concerning the granting of a Protection (Class XA) Temporary Visa." 10 The section headed "Instructions" states that: "1. This ABDR is to be completed by Boat Task Force (BTF) Case Managers only when granting TPVs to Iraqi and Afghani applicants.

2. The Case Manager's Team Leader/Supervisor is to be consulted and agree that use of the ABDR is appropriate to the case in question.

3. Please tick each box throughout the ABDR to indicate that you have given due consideration to the issue and/or undertaken the action." 11 The section headed "Team Leader's Acknowledgment"provides for an acknowledgment by the Case Manager's Team Leader/Supervisor that he or she was consulted on and agreed to the use of the ABDR by the Case Manager. In the instant case, this section of the relevant ABDR contains an acknowledgment by the supervisor of the first delegate that she was consulted by the first delegate on the use of the ABDR. 12 Under Part A of the ABDR the first delegate ticked boxes alongside the following two criteria: · "I am satisfied the application is a valid application within s46 of the Act."

· "In considering this application, I have assessed whether any offshore enquires are needed in order for me to be satisfied as to:

• the ability of the applicant to avail himself or herself of protection from a third country,

• the credibility of the account which has been provided to me, and

• whether the applicant has a well-founded fear of persecution for a Convention reason." 13 The first delegate then recorded certain findings in relation to the applicant and concluded with a "preliminary assessment" that: "From the information provided, I am satisfied that, for the purposes of s36, … does not have effective protection in a country other than Australia, and, subject to any information to be provided in relation to exclusion clauses, comes within Article 1A of the Refugees Convention." 14 Immediately following the expression of that state of satisfaction is the first delegate's signature, full name and the date "16 August 2001". Below the date is a note which reads as follows: "Note: This assessment is not the decision on the applicant's Protection (Class XA) Visa application (see Part C)." 15 Part B of the ABDR is headed: "Protection Obligations Assessment - Checklist of Findings of Fact." 16 Paragraph 7 of the checklist is headed "Summary". The first delegate ticked a box beside that paragraph. The paragraph states that: "I am satisfied that the applicant meets the definition of "refugee" at Article 1 of the Refugees Convention, does not have access to effective protection in another country and is therefore a person to whom Australia owes protection obligations." 17 Importantly, paragraph 1, in respect of which a box was also ticked by the first delegate, states that: "There is no evidence before me which indicates the applicant should be excluded from coverage by the Refugee's Convention. I find that the applicant is not excluded under Articles 1C, 1D, 1E and 1F, respectively of the Refugees Convention (Public Interest criteria 4001-4003 met)." 18 Part C of the ABDR is headed: "Decision on Protection (Class XA) Visa Application" It provides as follows, with each box having been ticked, the first delegate's signature appearing on the document and left blank are the first delegate's "position number" and the date of the completion of Part C:

"1. I find that is a person to whom Australia owes protection obligations under the Refugees Convention. 2. As required under the Act and Regulations, the applicant has:

q has undergone medical examinations carried out by a Commonwealth Medical Officer

q has satisfied public interest criteria 4001 to 4003

q has satisfied me that the grant of the visa is in the national interest

q has not been offered a temporary stay in Australia by the Australian Government for the purposes of Regulation 2.07AC 3. I am satisfied that [the applicant] meets all criteria contained in Part 785 of Schedule 2 of the Regulations. Accordingly, I have decided to grant [the applicant] a Protection (Class XA) Temporary Visa.

Delegate's signature: ________________________________

Delegate's Position Number:________________________________

(Delegate of the Minister for Immigration and Multicultural Affairs for purposes of section 65 of the Migration Act 1958) Date: ________________________________ Supervisor/Team Leaders Signature: Supervisor/Team Leaders Full Name: Olga WYNNE" 19 The "decision" was not communicated to the applicant by the respondent's department. The first delegate gave evidence, by way of affidavit, that this was because she had not received any assessment in relation to public interest criterion 4002. She described what she did in August 2001 as the preparation of a "draft assessment in relation to the applicant's case". She also said that she did not date the document (ie: Part C of the ABDR) "to indicate that it was not a decision". She said that: "Decisions are always dated on the day that they are made. I could not have made a decision in August 2001 as I had not received any security assessment in respect of the applicant."

20 That evidence is contradicted by the indication in Part C of the ABDR document itself that the relevant public interest criterion 4002 had been met. 21 The first delegate, on 5 October 2001, prepared a facsimile transmission in respect of the applicant in which she said, inter alia, that: "I am satisfied the applicant is an Afghan national as claimed, and that he has a well founded fear of persecution in Afghanistan, such that Australia owes him protection obligations."

22 The internal facsimile transmission was forwarded "to assist in expedition of the outstanding PIC 4002 check" in respect of the applicant. A "PIC 4002 check" is referable to the public interest criterion 4002, which, according to the first delegate's ABDR document, had been satisfied. 23 On 3 December 2001, a Warren Syme of the respondent's department (in lieu of the first delegate) sent (by Email) a further request for expedition of the "PIC 4002 check". The Email concluded as follows: "I verify that the case manager is satisfied that the applicant is an Afghan national as claimed, and that he has a well founded fear of persecution in Afghanistan, such that Australia owes him protection obligations, as evidenced at folio number 82 on file CLF 2001/37334." 24 On or about 24 December 2001, the respondent made public announcements to the effect that the processing of certain visa applications by Afghan asylum seekers had been suspended while further information was sought regarding the changed situation in Afghanistan. 25 On 18 January 2002, the respondent's department informed the applicant that the processing of applications for protection visas, which depended on assessments of conditions in Afghanistan, was being suspended. 26 On 22 January 2002, the applicant was considered by the respondent's department to have received a PIC 4002 clearance. 27 In February 2002, the applicant's migration agent was notified that the applicant would be re-interviewed regarding his application for a protection visa. 28 Ms Kirsty Bradbeer ("the second delegate") refused the grant of a protection visa to the applicant on 3 April 2002. 29 The applicant applied for a review of that decision. He also made a request, through his migration agents, for documents from the respondent, pursuant to the Freedom of Information Act 1982 (Cth) ("the FOI Act"). 30 On 22 April 2002, the applicant's migration agents received the documents under the FOI Act. Amongst the documents was the ABDR form which was completed by the first delegate. 31 On 20 September 2002, the RRT affirmed the decision of the second delegate. It also made adverse credibility findings against the applicant's interest.

Power to grant interlocutory relief 32 Counsel for the respondent submitted that the Court had no power to grant interlocutory relief which would have the effect of securing the release of a person from immigration detention. It was contended that s 189 of the Act requires the detention of a person known or reasonably suspected to be an unlawful non-citizen. It was further contended that a person must not be released from immigration detention if that person is an unlawful non-citizen unless she or he is granted a visa. Reliance was placed on s 196 of the Act which provides that: "(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

(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 made a valid application for a visa and he or she has been granted a visa." 33 Counsel for the applicant submitted that the respondent has no power under the Act to detain a lawful non-citizen and that, if successful in the substantive proceeding, the applicant will be recognised as a lawful non-citizen who has been unlawfully detained since the grant of his visa. 34 In those circumstances it was contended that the Court is empowered by s 23 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), to make an interlocutory order which has the effect of releasing the applicant from immigration detention. 35 It was contended, by counsel for the applicant, that the Act does not expressly or impliedly deny the power given by s 23 of the Federal Court Act to the Court in the instant circumstances. 36 The submissions of counsel for the applicant have been met with approval by two recent judgments of this Court; see Applicant VFAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1062 ("VFAD"), per Merkel J, and VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 ("VHAF"), per Gray J. 37 The relevant facts in VFAD and VHAF are not materially different from those in that instant case, save that the "decision record" in each of those matters was more elaborate than the ABDR form used by the first delegate in this case. 38 In VFAD, at [18] to [27], Merkel J carefully considered the statutory scheme. At [30] his Honour observed that the case before him was concerned with the legality of the detention of the applicant. At [33] and [40] he observed that the Court had jurisdiction to give declaratory relief that the applicant was granted a visa and is a lawful non-citizen. Also at [33] his Honour noted that s 196 does not authorise unlawful detention. 39 In addition,Merkel J noted that: · at [36], that s 196 has not clearly or expressly deny the s 23 power;

· at [37], that there is a well established body of authority in the Court that s 23 confers power on the Court to make an interlocutory order for the release of an applicant from immigration detention under the Act;

• at [45], that there is a consistent and well-established line of authority that has not construed the discretionary or mandatorydetention provisions in the Act as expressly or impliedly denying "the s 23 power" in a case where there is a challenge to the legality of detention. 40 In VHAF, Gray J carefully considered the legislative context at [24] to [44]. At [76] to [86]his Honour dealt with the power of the Court to release a person from immigration detention. At [79] after referring to ss 189 and 196, Gray J said that: "The clear assumption underlying these provisions is that detention of a citizen, or a lawful non-citizen, is unlawful unless justified. The taking into detention of such a person may be justified on the basis of a reasonable suspicion that the person is an unlawful non-citizen. If, in fact, the person is a lawful non-citizen, there is an entitlement to immediate release." 41 His Honour at [80] considered that s 189 provides "no authority for the continued detention of a lawful non-citizen". 42 At [82] to [84] Gray J said that: "In VFAD at [29] - [48], Merkel J discussed at length the question whether the power of the Court to grant interlocutory orders, found in s 23 of the Federal Court Act, is excluded by provisions of the Migration Act with respect to persons in detention. His Honour concluded that he had power to order release pending the hearing and determination of the application. In all relevant respects, the facts of that case were identical to those of the present. The Minister has appealed from his Honour's judgment. The appeal has been heard but judgment has not yet been delivered. Counsel for the Minister submitted in the present case that the judgment of Merkel J in VFAD was wrong and should not be followed. He submitted that Merkel J misapplied the principle derived from Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] 34 FCR 169, and that s 196 of the Migration Act constitutes a bar to what would otherwise be the power of the Court to order the release of a person taken into detention pursuant to s 189. I have examined the reasoning of Merkel J in VFAD. I am far from convinced that his Honour was wrong. Until such time as the Full Court holds that his Honour was wrong (if that should occur), the reasoning in VFAD represents the law and I should follow it." 43 I respectfully agree with those views and consider that I should not depart from the reasoning of Merkel J in VFAD unless I am of the opinion that they are clearly wrong. I do not hold that opinion. On the contrary I agree with the analysis of each of Merkel J and Gray J for concluding that the Court has power, in effect, to order (by way of interlocutory relief) the release from detention of a non-citizen where the legality of that detention is in issue, in the substantive proceeding. In addition, I rely upon the observations of the High Court in Shergold v Tanner (2002) 188 ALR 302 at [39] and adapt them to the circumstances of this matter to fortify my view that in enacting s 196 of the Act in its present form in 1994, the legislature "did not clearly state its will to re-define the [power] of the Federal Court [under the Federal Court Act]." 44 I also agree with Merkel J who said in VFAD at [48] that whether or not it is "appropriate" to order, in effect, the release from immigration detention of an applicant held there in purported reliance on s 196 raises for consideration the traditional tests for the grant of interlocutory relief; see also VFAD at [49].

Serious issue to be tried 45 I consider that there is a serious issue to be tried as to whether the completion of the ABDR form by the first delegate on 16 August 2001 constitutes a decision to grant the applicant a protection visa. I also consider that, as the evidence now stands, the applicant has demonstrated a strong case that the first delegate granted a protection visa on that day. 46 Section 65 provides that: "(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. (2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3)." 47 Section 67 provides that: "67 Way visa granted A visa is to be granted by the Minister causing a record of it to be made." 48 The ABDR form, especially Part C thereof which, it is highly arguable, contains the relevant decision, demonstrates the first delegate's satisfaction with the criteria referred to in s 65(1)(a). It is not to the point to say that objectively the first delegate was unable as at August 2001 to be satisfied as to the public interest criterion because she asserted that she was so satisfied, subjectively. I consider it to be strongly arguable that the Part C section of the ABDR form constitutes a decision record for the purpose of s 67. 49 At [50] in VFAD, Merkel J considered that there was a serious issue to be tried as to whether there was a decision to the applicant grant a visa and therefore whether the applicant's detention was unlawful. I see no error in his Honour's approach to that issue and consider that, in the instant circumstances, given that there is no material factual difference between the facts of the instant case and the facts of the case before Merkel J in VFAD, a serious issue to be tried is raised with respect to the same point. See also VHAF at [57] and [58]. 50 Even if the claim by the applicant that he was granted a protection visa on 16 August 2001 may be considered to be "a more doubtful claim (which nevertheless raises a serious issue to be tried)", I consider that there is "a marked balance of convenience" in favour of the grant of interlocutory relief; see Bullock v Federated Furnishing Trading Society of Australasia (1985) 5 FCR 464 at 472 per Woodward J (with whom Smithers and Sweeney JJ agreed.

Balance of convenience 51 The matters that have led me to the view that there is a marked balance of convenience in favour of the grant of interlocutory relief are the following: · the applicant has been detained since March 2001, in circumstances where he is continuing to accrue a debt to the Commonwealth for his detention;

· if the applicant has been granted a protection visa it will expire in August 2004, with the applicant having spent a significant part of the 3 year period in detention;

· the applicant is frustrated at being kept in detention;

· he has trouble sleeping and has short term memory loss;

· he has had constant headaches and stomach pains since being detained;

· he has agreed upon reasonable reporting conditions which are designed to secure his attendance at Court upon the determination of the substantive proceeding and which minimise the risk of flight;

· if the applicant's contentions in the substantive proceeding are correct, he is being unlawfully detained;

• the fundamental importance of the protection of individual liberty; see VHAF at [95]. 52 I do not consider that the above factors are outweighed by whatever weight, if any, which is given to the consideration that the RRT ultimately did not find the applicant to be a credible witness. In any event, there is no evidence before me, in a testable form, upon which I could form the view that the applicant is a person whose evidence is not to be accepted.

Waiver and abuse of process 53 Counsel for the respondent contended that the applicant has waived any right he had to agitate the question whether he was granted a protection visa in August 2001. That submission was based on the contention that the applicant's migration agent was aware of the first delegate's decision prior to the decision of the RRT but that the applicant continued with his review of the second delegate's decision in the RRT. 54 The submission regarding waiver and abuse of process was not strongly pressed before the Court. Counsel described it in the following way: "This is an argument that arises in the facts of [this case] which will be an issue at trial. We mention it here on its own. It may not be a matter that would cause your Honour to refrain from making the injunctions that are sought, but we raise it for the sake of completeness." 55 To the extent that the submission regarding waiver is relevant to the balance of convenience or the exercise of a residual discretion to refuse injunctive relief, I do not find it to be persuasive or a matter which outweighs countervailing factors relevant to balance of convenience.

Conclusion 56 For the above reasons I consider that an interlocutory order should be made in favour of the applicant. As Gray J did in VHAF at [104], I have ordered that there be no publication of the address of the applicant, at which he has undertaken to reside, so that his privacy may be protected. Unlike Gray J, I will make a costs order against the respondent, as he was on notice that such an application would be made in the event that his opposition to the grant of interlocutory relief failed. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 11 October 2002 Counsel for the Applicant: Ms D Mortimer, with Mr C Horan (both appearing pro bono)

Counsel for the Respondent: Mr C Gunst QC, with Mr W S Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 9 and 11 October 2002