VMOZ v Minister for Immigration, Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant seeks interlocutory relief restraining the respondent Minister from continuing to detain him in immigration detention under the Migration Act 1958 (Cth) ("the Act"). The applicant's substantive claim is that on or about 10 October 2001 or alternatively on or about 18 December 2001 a decision was made by a delegate of the Minister pursuant to s 65 of the Act to grant him a protection visa in accordance with s 36. 2 Senior counsel for the Minister accepts that the Court has jurisdiction to grant the interlocutory relief sought but submits that the applicant has not established a serious issue to be tried and that in any event there are factors which weigh against the exercise of discretion in his favour.

The legislation 3 By s 29 the Minister may "grant a non-citizen permission, to be known as a visa", to travel to and enter Australia and/or to remain in Australia. The combined effect of ss 13 and 14 is that a non-citizen in the migration zone who does not hold a visa is an unlawful non-citizen. Persons known or reasonably suspected by officers of the Department to be unlawful non-citizens must be detained: s 189. By s 196(1), an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is either removed from Australia, deported, or granted a visa. 4 When a valid application for a visa is made the Minister is to consider it: s 47(1). That obligation, relevantly, is to continue until either the application is withdrawn or the Minister grants or refuses to grant the visa: s 47(2). 5 If, after considering a valid application for a visa, the Minister is satisfied that certain criteria have been satisfied, the Minister is to grant the visa: s 65(1)(a). If not so satisfied the Minister is to refuse to grant the visa: s 65(1)(b). These are not discretionary decisions: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650-651. 6 Bys 67 it is provided "a visa is to be granted by the Minister causing a record of it to be made". The Act and Regulations contain no definition of "grant" or "record" and do not prescribe, as far as I was told, any particular form. Nor is "visa" defined apart from, as already mentioned, s 29 which speaks of "permission, to be known as a visa". 7 By s 68(1) a visa is to have effect "as soon as it is granted". 8 The Minister's powers may be exercised by a delegate authorised in writing: s 496. Section 497(1) provides: "If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted." Application for protection visa 9 The applicant, a male then aged 19 years, arrived in Australia without travel documents by a boat subsequently codenamed "Culgoa" in mid March 2001. His claimed country of nationality was Afghanistan. On 26 July 2001 he applied for a protection visa. 10 Ms Deborah Mary Shalla, a delegate of the Minister, was assigned his case. She interviewed the applicant on 28 July 2001. On 1 September Ms Shalla sent an email to Kay Newman, a superior officer, requesting permission to "finalise" the applicant's application, notwithstanding that she (Ms Shalla) had not received the result of the "EP" ("effective protection") enquiry in relation to Pakistan. (If enquiries show that an asylum seeker is entitled to residence in a country other than that where fear of persecution is asserted and will receive effective protection there then that will form a ground for a finding that the person is not a refugee within the meaning of the Refugees Convention.) 11 On 9 October 2001 another officer, one David Ohlmus, passed on the instruction "given the current … situation in Pakistan, please proceed with this case". (This and subsequent emails referred to below were received by Ms Shalla, amongst others.) On 10 October another officer sent an email attaching a "ready for release" pro forma. Some further emails followed and in particular one on 12 October indicating that the applicant, amongst others, would be released from Curtin Immigration Detention Centre on Thursday 18 October. 12 A further email confirming this was sent on 15 October advising of the procedure to be adopted. Undated grant letters were to be sent to the Perth Boat Releases Department mailbox. A proposed grant or release was not to be communicated to the applicants, their representatives or supporters until after the release had occurred. Understandably it was seen as essential that the grant of the visa should synchronise exactly with the release of the person concerned. If a grant of visa were to be made any earlier, the continued detention of the person would be unlawful. 13 There appears on the Departmental file, which was obtained under Freedom of Information search, an unsigned and undated letter ("the Draft Letter") addressed to the applicant which would appear to be a form of letter appropriate to advise of the grant of a protection visa. It is marked "Hand Delivered" and is as follows (emphasis in original): "Dear Mr [VMOZ] I am pleased to advise that you have been granted a sub-class 785 (Temporary Protection) visa. Evidence of visa grant is on the enclosed Visa evidence card. Please note the conditions attached to this visa. Note that: · The visa allows you to remain in, but not re-enter, Australia for three years or if you have applied for another protection (Class XA) visa before this visa expires, this visa will continue until that Class XA protection visa application is finally determined; · as a subclass 785 visa holder, you can work without restrictions in Australia; · you may apply for special benefits. More information is available from the nearest Centrelink Office, or phone 132 850. If you have difficulty speaking English, phone 131 202. These calls can be made from anywhere in Australia for the cost of a local call; · you are not able to apply for any other substantive visa, apart from another class XA visa; · you are not able to sponsor family members to come to Australia; and · you are required by law to notify DIMA of any change of residential address within 14 days of the change." If you need any more information regarding your immigration status in Australia, please contact the nearest office of this Department. Yours sincerely, Deborah Shalla Onshore Protection, NSW 2001 / /2001 Cc: J. Fisher Refugee and Immigration Legal Centre Inc Fax (03) 9483 1136 Manager, Curtin IRPC" 14 It is not suggested that the Draft Letter or a letter in that form was ever signed by Ms Shalla or dated or given or sent to the applicant. The evidence does not disclose any "Visa evidence card" in relation to the applicant. 15 It appears from a computer printout on the file that the public interest criteria 4002 clearance was withdrawn by ASIO on 15 October 2001. This is one of the criteria to be satisfied at the time of the decision to grant a protection visa: see item 785.226 of sch 2 to the Regulations. It is in these terms: 'The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security." 16 On 17 October 2001 an email advised of the withdrawal of this clearance and requested that the applicant "be withdrawn from the release list". 17 After some further internal emails it appears the applicant was again considered to be "ready for release" on 19 December 2001. However this did not occur and on 7 February 2002 another delegate Ms Kirsty Bradbeer took over the file. On 27 March 2002 Ms Bradbeer made a decision refusing to grant a protection visa and notified the applicant accordingly. The basis of this decision was her finding that the applicant was a Pakistani national. She found that the applicant had never, as he alleged, experienced mistreatment or persecution at the hands of the Taliban and that he did not have a well-founded fear of persecution for any Convention reason. 18 The applicant sought review of this decision by the Refugee Review Tribunal but on 21 August 2002 the Tribunal affirmed the delegate's decision. 19 As far as I was informed, no judicial review has been sought of Ms Bradbeer's decision or the decision of the RRT affirming it. 20 In an affidavit sworn on 5 March 2003 Ms Shalla deposed that she believed the Draft Letter was prepared by another officer of the Department while she was absent interstate on Departmental business unrelated to the applicant. She further deposed: "Presumably it was prepared in anticipation that I would make a favourable decision in relation to the applicant. However at no stage did I do so. The pro forma letter was not prepared by me and at no stage did I sign or date it or deliver it to anyone. … At no time did I reach a state of satisfaction that the applicant met all the criteria for the grant of a sub-class 785 (Temporary Protection) visa. I did not at any time make a decision in relation to the applicant's protection visa application or make any record of any such decision and did not grant the applicant a sub-class 785 (Temporary Protection) visa or make a record of any such visa."