COVATU v Minister for Immigration
[2015] FCCA 746
•1 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COVATU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 746 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – applicant detained by NSW Police – unlawful non-citizen – refusal of delegate to grant a bridging visa – whether the Tribunal misconstrued or misapplied ss.194 and 195 of the Migration Act 1958 – proper construction of words “detain” and “detains” – obligations imposed on a detaining officer to ensure detainee is aware of certain issues. |
| Legislation: Migration Act 1958 (Cth), ss.5, 13, 14, 47A, 48, 65, 189, 194, 195, 359A, 476, Migration Regulations 1994 (Cth), cl.050.212 of sch.2 |
| Yap v Minister for Immigration & Border Protection (2014) 291 FLR 54 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 SZSSC v Minister for Immigration & Border Protection [2014] FCA 863 SZRHS v Minister for Immigration & Citizenship [2014] FCA 121 SZRKT v Minister for Immigration & Citizenship (2013) 212 FCR 99 Parramatta City Council v Pestell (1972) 128 CLR 305 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 Commonwealth of Australia v Fernando (2012) 200 FCR 1 Kelly v R (2004) 218 CLR 216 Coleman v Power (2004) 78 ALJR 1166 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration & Border Protection v Lesianawai [2014] FCAFC 141 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 |
| Applicant: | USAIA COVATU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 384 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 March 2015 |
| Date of Last Submission: | 11 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr G. Kennett SC |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The injunction granted on 6 March 2015 is dissolved.
The applicant pay the first respondent’s costs fixed in the amount of $11,250.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 384 of 2015
| USAIA COVATU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Fiji who arrived in Australia on 27 October 2013 on a Tourist visa that was valid until 27 January 2014. A week before the expiry of his visa, the applicant applied for a protection visa. He was granted a bridging visa on the basis of that application. On 17 June 2014 a delegate of the first respondent (“Minister”) made a decision to refuse the applicant a protection visa. The applicant did not seek review of that decision and, as a consequence, his bridging visa ceased on 24 July 2014. He became an unlawful non-citizen within the meaning of the Migration Act 1958 (“Act”) on that day.
The applicant was taken into immigration detention on 17 January 2015 and on 28 January 2015 he applied for a Bridging E (Class WE) visa on the basis that he intended to lodge an application for a partner visa, sponsored by his de facto partner. On 30 January 2015 a delegate of the Minister refused to grant the applicant a bridging visa and the applicant applied to the second respondent (“Tribunal”) for review of that decision.
On 10 February 2015 the Tribunal affirmed the delegate’s decision. The applicant has applied to this Court under s.476 of the Act for judicial review of the Tribunal’s decision.
The grounds in the application are:
1.Jurisdictional error(s) in the Second Respondent’s decision dated 10 February 2015.
2.Reasons provided in the Second Respondent’s decision to affirm the decision not to grant the Applicant a Bridging E (Class WE) visa were neither logical nor rational.
3.Further Grounds of Application will be provided once the Applicant has a legal representation, and the review of written reasons for the decision has been completed.
The applicant’s written submissions did not elucidate any of those grounds. Rather, they complained that the material submitted to the Court by the Minister did not contain evidence of the application for a protection visa or a copy of the delegate’s reasons for refusing that application. At the hearing of this matter the applicant said that his complaint was that the Tribunal relied on that material in its decision but failed to give him the opportunity to address it and thereby denied him procedural fairness or breached s.359A of the Act. The Minister did not object to that submission being treated as though it were a ground in the application.
In addition to the matters raised by the applicant, there is an issue as to the applicability and alternatively, the correctness, of the decision of Judge Driver in Yap v Minister for Immigration & Border Protection (2014) 291 FLR 54 (“Yap”). Briefly, that issue concerns the obligation of an officer who takes a person into immigration detention to ensure that the detainee is made aware of certain matters. It was on the basis of that issue, the fact that the applicant remained in immigration detention and in light of the pending removal of the applicant from Australia that I granted an interim injunction and brought the matter on for hearing at short notice. There was no objection to that course.
For the reasons that follow, there is no jurisdictional error in the Tribunal’s decision and the application will be dismissed and the interim injunction dissolved.
Relevant statutory provisions
If an applicant makes a valid application for a visa, the Minister is required to consider that application: s.47. If the Minister is satisfied that the criteria for the grant of a visa are satisfied, he or she must grant the visa whereas if he or she is not so satisfied, the visa must be refused: s.65.
The criteria for a Bridging E (Class WE) visa are found in pt.050 of sch.2 to the Migration Regulations 1994 (“Regulations”). Relevantly, sub-cl.050.212(3) provides:
(3) An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or
(b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
The ability of an applicant to apply for a substantive visa, and thus to be able to satisfy the criterion in sub-cl.050.212(3) may be affected by the operation of s.195 of the Act. The provisions relevant to that possibility are set out below.
Section 5 of the Act provides that, unless the contrary intention appears, the following words have the following meanings.
…
“detain” means:
(a)take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
…
“immigration detention” means:
(a) being in the company of, and restrained by:
(i)an officer; or
(ii)in relation to a particular detainee--another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i)in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii)in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or
(v)in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
…
“officer” means:
(a)an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b)a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c)a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d)a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e)a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g)any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
…
An unlawful non-citizen is a person in the migration zone who does not hold a visa that is in effect: ss.13 and 14.
Section 189 provides:
189 Detention of unlawful non-citizens
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
(2)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a)is seeking to enter the migration zone (other than an excised offshore place); and
(b)would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(3)If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person.
(3A)If an officer knows or reasonably suspects that a person in a protected area:
(a)is a citizen of Papua New Guinea; and
(b) is an unlawful non-citizen;
the officer may detain the person.
(4)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a)is seeking to enter an excised offshore place; and
(b)would, if in the migration zone, be an unlawful non-citizen; the officer may detain the person.
(5)In subsections(3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
Sections 194, 195 and 196 provide:
194 Detainee to be told of consequences of detention
As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:
(a)the provisions of sections 195 and 196; and
(b)if a visa held by the person has been cancelled under section 137J--the provisions of section 137K.
195 Detainee may apply for visa
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention;
or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2)A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
196 Duration of detention
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b)he or she is deported under section 200; or
(c)he or she is 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 as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4)Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
(4A)Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5)To avoid doubt, subsection (4) or (4A) applies:
(a)whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b)whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A)Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6)This section has effect despite any other law.
(7)In this section:
"”Visa decision” means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
Factual background
As already noted above, the applicant became an unlawful non-citizen when his last visa expired on 24 July 2014. Early in the morning of 17 January 2015 the applicant was taken into police custody when his flat mate contacted the police because of an altercation involving the applicant. Senior Constable Khoury ascertained from the Department of Immigration that the applicant was an unlawful non-citizen and took him into immigration detention under s.189 of the Act.
On the same morning the applicant was transferred to the custody of the Department of Immigration and was interviewed by an officer of that Department at 11.10am. During that interview, the applicant indicated that he intended to lodge a substantive visa application, a “partner application” and requested a five day extension in accordance with s.195(1)(b) of the Act.
The applicant did not lodge an application for a substantive visa, but lodged an application for a bridging visa on 28 January 2015. In that application the applicant wrote:
I intend to apply for a spousal partner visa as my de facto partner awaits my released (sic) from detention. The bridging visa E would allow me to apply for spouse visa onshore as my partner needs me here in Australia for support due to her medical condition.
The delegate refused to grant the visa because no application for a substantive visa had been made and the timeframe for lodging such an application from immigration detention had passed. In addition, the applicant was unable to apply for a protection visa by operation of s.48 because he had already been refused a protection visa. On 2 February 2015, the applicant applied to the Tribunal for review of that decision.
By letter dated 6 February 2015 the Tribunal invited the applicant to comment on certain information at an interview to be held on 10 February 2015. That information included that the applicant’s application for a protection visa had been refused on 17 June 2014, that applicant had not lodged an application for a substantive visa and other information that suggested to the Tribunal that he intended to stay in Australia permanently. The applicant attended the Tribunal hearing on 10 February 2015 together with his partner. They both gave evidence and outlined their intention to apply for a partner visa in the future. The applicant also gave evidence that on 2 February 2015 he had lodged an application for judicial review in respect of the decision to refuse to grant him a protection visa. The Tribunal gave an oral decision at the end of the hearing.
Tribunal’s decision
The Tribunal concluded that the applicant and his partner were genuinely committed to each other, but found that the applicant did not satisfy the criteria in cl.050.212 and so affirmed the decision under review.
The Tribunal proceeded on the basis that the only possible criteria that the applicant could meet were in sub-cls.050.212(3) and (3A). There is no issue about that approach and it was clearly correct. In respect of the first of these subclauses, the Tribunal found that the applicant was granted a five day extension of time to lodge a substantive visa pursuant to s.195 of the Act but failed to do so. As will be seen, it is implicit in this finding that the Tribunal acted on the basis that s.194 had been complied with. The Tribunal then reasoned:
[17]… if the Bridging visa E application is lodged after the s.195 bar takes effect, then the applicant cannot satisfy cl.050.212(3)(b) unless the substantive visa application is for a protection visa.
This reasoning reveals that the Tribunal’s finding that s.195(2) applied was critical to its decision. On the basis of that reasoning, the Tribunal set to one side the applicant’s stated intention to lodge an application for a partner visa and focussed solely on whether he was able to obtain a protection visa.
In that respect, the Tribunal found that, because the applicant had already been refused a protection visa and had made no application to the Minister for permission to lodge a further application, he was prevented from doing so by operation of s.48A of the Act. It summarised its conclusions as follows:
[20]Therefore the Tribunal is not satisfied that at the time of application the applicant had made a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or that the applicant would apply for such a visa within a period specified for doing so. Accordingly, the applicant does not meet cl.050.212(3).
The Tribunal then found that sub-cl.050.212(3A) was not satisfied because the applicant had only applied for judicial review after the application for a Bridging Visa E.
Consideration
There are three issues in these proceedings: first, whether the Tribunal’s decision was irrational or illogical; secondly, whether the Tribunal breached s.359A; and thirdly, whether the Tribunal made an error in the nature of that dealt with by Judge Driver in Yap and, if so, whether that constituted jurisdictional error.
Issue One: Illogicality or Irrationality
The applicant has not explained why he claims that the decision of the Tribunal was illogical or irrational. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) Crennan and Bell JJ said, at [135]:
… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …
(emphasis added)
As noted by Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 at [71], there may currently be a difference of opinion in the Federal Court as to one aspect of SZMDS. It relates to the question whether, in determining whether irrationality or illogicality are made out, the Court should decide for itself whether the result was irrational on the materials before the decision-maker as opposed to whether the decision-maker’s reasoning was illogical or irrational (contrast, for example, SZRHS v Minister for Immigration & Citizenship [2014] FCA 121 at [68] per Farrell J and SZRKT v Minister for Immigration & Citizenship (2013) 212 FCR 99 at [150]–[156] per Robertson J. Mr Kennett SC, who appeared for the Minister, submitted that, in order to amount to jurisdictional error, illogicality or irrationality has to be established at the level of the decision. In light of what follows it is unnecessary to decide that issue.
Subject to the issue arising from the decision in Yap, the Tribunal’s decision itself (as well as each anterior finding of fact) was open to the Tribunal and arrived at in a logical and rational way. As summarised above, the Tribunal proceeded from the propositions that the applicant had not yet made an application for a substantive visa, had already applied for and been refused a protection visa, and had not applied to the Minister for permission to apply for another one. Each of those propositions was not only based on the evidence before the Tribunal, including the applicant’s own evidence, but was not contested by the applicant. The balance of the Tribunal’s reasoning was an application of those facts to the criteria relevant to the visa for which the applicant had applied.
The qualification mentioned in the preceding paragraphs is simply that a conclusion that the decision was open is based on the assumption that the decision was one that was permitted on a correct understanding of the law: see, for example Parramatta City Council v Pestell (1972) 128 CLR 305. I deal with that qualification further below in connection with the third issue. For present purposes it suffices to say that, for the reasons given in the preceding paragraph, the decision of the Tribunal was not irrational or illogical and was based on findings or inferences of fact supported by logical grounds: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at 1168 [9]. For that reason, the first ground, ground two of the applicant’s application, is rejected.
Issue Two: Breach of s.359A?
The second issue is the one raised by the applicant in written submissions, namely, that the Tribunal erred by failing to give the applicant the opportunity to deal with the delegate’s decision to refuse to grant the applicant a protection visa. The Minister accepted that the fact that the applicant had been refused a protection visa in June 2014 was “information” within the meaning of s.359A(1) of the Act.
There are two short answers to this point. First, the relevant information was given to the Tribunal by the applicant both in writing (being part of the delegate’s decision that was attached to the application for review) and orally at the Tribunal hearing. For that reason, the information fell within s.359A(4)(b) and no obligation under s.359A(1) arose in respect of it.
Secondly, the Tribunal invited the applicant to comment on the delegate’s decision in a letter sent to him under s.359A of the Act. Although the relevance of the information was explained at a relatively high level of generality, in my view it was sufficiently explained so as to have complied with s.359A(1)(b).
In light of s.357A of the Act, that invitation was all that the Tribunal was required to do in order to afford procedural fairness to the applicant in respect of the delegate’s decision. In any event, absent the requirement in s.359A, it is doubtful that there would have been any obligation on the Tribunal to disclose the delegate’s decision to the applicant and give him an opportunity to comment on it as it was something of which he was clearly already aware: see Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 at 234 [30] per Rares and Jagot JJ.
Issue Three: ss.194 and 195 and the decision of Yap
The third issue concerns the operation of ss.194 and 195 of the Act and the decision of Judge Driver in Yap. The Minister submits that the present case is distinguishable from the facts of that case and, in the alternative, that it was clearly wrong and ought not to be followed. I accept both of those arguments.
The relevant facts in Yap were set out in the following paragraphs:
[5]On Sunday 22 June 2014 officers from the Victorian Police in Shepparton located Ms Yap there and took her to the local police station. The police made inquiries of the Immigration Status Service in Melbourne who confirmed that Ms Yap was an unlawful non-citizen.
[6]Following that confirmation, at 11:37pm on 22 June 2014 Constable Julie Haigh detained Ms Yap under s.189 of the Migration Act 1958 (Cth) (Migration Act).
[7]At 12.15pm on the same day Luke Cooper of the Immigration Status Service in Melbourne conducted by telephone a “Compliance Client Interview” with Ms Yap. The interview was conducted in English and without an interpreter.
[8]In the course of the interview Ms Yap indicated that she wanted to apply for a visa. The record of the interview does not show that the interviewer advised Ms Yap of any time limits for doing this. The record indicates that Ms Yap had been given a “Very Important Notice” (VIN).
[9]At 12:45pm the interview was concluded and on the same day the interviewer assessed that Ms Yap should continue to be detained.
[10]At 12:47pm on the same day the Immigration Status Service sent Constable Haigh two documents with instructions that they “be handed to the above-named person as soon as possible”.
[11]The documents were titled in English “Request for consular access for people in immigration” and “Very Important Notice – Information about your detention”.
[12]The body of the VIN was in simplified Chinese characters with no accompanying English translation.
[13]Ms Yap was not asked and did not sign anything on that day.
[14]Ms Yap was taken to Maribyrnong Immigration Detention Centre.
[15]At 1:39pm on 23 June 2014 an immigration officer, Lena Markovska, conducted a “Detention Client Interview” with Ms Yap. The interview was conducted in English with the apparent agreement of Ms Yap.
[16]The officer handed Ms Yap two VINs, first one in English and then another in Chinese. Ms Yap signed a “File copy” being page 7 of the Chinese VIN and a “Client copy” being page 5 of the Chinese VIN. On neither copy did Ms Yap tick boxes that she had read or had been read the document by an interpreter or that she understood the contents of the notice. Ms Yap signed an acknowledgement that she had been given and read a “Notice to Persons in Immigration Detention/Visa options”.
[17]The first page of the record of the Detention Client Interview sets out questions “Can the client read and write in their own language” and “Are you, as interviewer, satisfied that the client fully comprehends you (with or without an interpreter) and they have the comprehension levels required to meaningfully participate in the interview”. The record of the interview does not show that these matters were addressed by the interviewer.
[18]On 26 June 2014 Ms Yap’s migration agent lodged an application for a Bridging visa E – subclass 050.
[19]On 27 June 2014 a delegate of the Minister refused to grant the bridging visa on the basis that Ms Yap was out of time to make an application for a substantive visa. Ms Yap was understood to be then outside the time limits set out in s.195 to apply for such a visa and therefore unable to meet the requirements of subclause 050.212(3) in Schedule 2 to the Migration Regulations 1994.
[20] On 1 July 2014 Ms Yap applied to the Tribunal for review of the delegate’s decision.
[21]The application was supported by submissions from Ms Yap’s migration agent dated 7 July 201417 and 9 July 2014 which called into question whether the immigration officer at Maribyrnong had complied with s.194 having regard to Ms Yap’s need for an interpreter, her illiteracy in both English and Chinese, her lack of understanding of the contents of the VINs, the s.195 time limitations and the documents she signed in the Detention Client Interview.
Judge Driver found, against the background of those facts, that the Tribunal gave no consideration to nor made any finding on whether the detaining police officer had complied with s.194 but had, instead, directed its inquiry to whether the various officers in Maribyrnong had had made the applicant “aware” of the s.195 time limitations. Those inferences formed the basis of his Honour’s conclusion that the Tribunal had fallen into jurisdictional error. His Honour found, at [38], that the Tribunal had left unexplored whether the detaining police officer had complied with s.194 on the assumption that compliance with the section could be met by another officer.
Those facts are far from the facts of this case. Here, the evidence shows that the detaining police officer gave the applicant a document entitled “Very Important Notice – Information about your detention” in Fijian. The applicant signed that notice on 17 January 2015 and ticked a box indicating that he had read and understood the notice. The notice also bears the signature of Michael Khoury who I infer was the arresting officer.
Further, on the same day, the applicant was transferred to the custody of the Department of Immigration and was interviewed by an officer later that morning. The record of that interview shows that the applicant was reminded of the applicable timeframes for lodging a substantive visa and that he requested a five day extension.
Unlike Yap, the issue of compliance with s.194 was never raised before the Tribunal and, as already noted, it made no express findings about that matter. It is clear that the Tribunal had before it at least the signature page of the “Very Important Notice” signed by the applicant whilst in the custody of Senior Constable Khoury. In those circumstances, there is nothing to compel the inference that the Tribunal failed to consider whether s.194 was complied with by that officer or that it assumed that it could be complied with by some other officer and I do not draw either inference.
For that reason I find that the Tribunal in the present case did not fall into the error found by Judge Driver to have been made by the Tribunal in Yap.
I also find that Yap was clearly wrong.
The Minister argued that Yap was wrong for four reasons. The first was that Judge Driver misconstrued the meaning of “detain” in s.194. His Honour held that, in s.194 only bore the first meaning of that word in s.5. The only support for that conclusion was a passage in the decision of the Full Court in Commonwealth of Australia v Fernando (2012) 200 FCR 1 (“Fernando”).
The meaning of the word “detain” in the Act is as set out in s 5 “unless the contrary intention appears”. As explained by McHugh J in Kelly v R (2004) 218 CLR 216 at 253 [103], the function of a definition is to provide aid in construing the statute and the correct approach requires that the word be inserted into the fabric of the substantive enactment so that it can be understood in its proper context. On that approach it can be seen whether there is a “contrary intention” either from the text of the substantive provision or its context: see Leeming, Resolving Conflicts of Laws, The Federation Press, 2011 at 67-71.
The crucial phrase in s.194 is “As soon as reasonably practicable after an officer detains a person under section 189…”. Section 189 thus provides an important part of the context for the construction of s.194. That section requires an officer with one of two states of mind (knowledge or reasonable suspicion) about whether a person is an unlawful non-citizen to “detain the person”. There is no question that “detain” in that section means both to take into immigration detention or to keep or cause to be kept in immigration detention. That provides strong support for the proposition that “detain” also bears both of those meanings in s.194.
On the other hand, the second meaning of “detain” creates, at first glance, some awkwardness in s.194 in light of the requirement of the detaining officer to do something “as soon as reasonably practicable” after detaining the person. The difficulty is in imagining how a person with an obligation to keep someone in detention can do anything as soon as reasonably practicable after doing so as the word “keep” suggests an ongoing duty. However, I agree with Mr Kennett SC that that awkwardness is not intractable. That is because the section can readily be construed so that the obligation arises when the officer first “detains” a person and not at every point in time thereafter.
The question then arises as to whether the purpose of the provision supports the construction favoured by Judge Driver in Yap. At this point it is necessary to consider the decision in Fernando.
Mr Fernando was detained under the Act for 1203 days. He claimed that his detention was unlawful and, upon his release, commenced proceedings in the Federal Court seeking damages for wrongful imprisonment. The trial judge found that the applicant had been unlawfully detained on 5 October 2003 and that the Acting Minister had engaged in misfeasance in public office which had led to unlawful detention for one day. The Commonwealth was ordered to pay Mr Fernando exemplary damages. The Commonwealth appealed against each of those determinations. Mr Fernando cross-appealed, claiming that he had been unlawfully detained for more than one day.
The Full Court allowed the appeal against the finding of misfeasance in public office, and allowed the cross-appeal in part, finding that Mr Fernando had been falsely imprisoned between 5 October 2003 and 18 January 2007.
The passages in the Full Court’s reasons that are relevant to the present case are:
[68]The Act laid down specific criteria that had to be satisfied before a person such as Mr Fernando could be detained. First, s 189(1) created a statutory duty for an officer (as defined in s 5) to detain a person whom the officer “knows or suspects” was an unlawful non-citizen (as defined in s 14). “Detain” had two senses as defined in s 5, namely to take into, or to keep, or cause to be kept, in immigration detention. Only the first of these senses can be applicable to the initial occasion on which a person is deprived of his or her liberty by being placed into immigration detention or is otherwise held in immigration detention.
[69]Nonetheless, s 189(1) operated to require an officer to whom it applied to detain a person in both senses of “detain”, namely it required an officer with the requisite state of mind to take the person into immigration detention either by physically depriving the person of his or her liberty or transforming the nature of the custody or detention in which the person was held, such as serving a term of imprisonment, into immigration detention. Once the person had been detained, by being taken into detention within the meaning of the first sense of “detain”, ss 189(1) and 196(1) required the initial detaining officer and all other officers with the requisite state of mind, to keep the person, or cause him or her to be kept, in immigration detention.
[70]The question of whether an officer knows or reasonably suspects that a person is an unlawful non-citizen for the purposes of s 189(1) is judged against what was known or was reasonably capable of being known at the time when the person’s detention was first effected: Ruddock at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ at [221] per Callinan J.
[71]The basis of the officer’s state of mind is his or her knowledge or reasonable suspicion. That state must be arrived at on the material available to him or her when the detention is effected, regardless of whether that material is based on errors of fact or law, such as the Minister having made a decision to cancel the person’s visa that was affected by jurisdictional error: Ruddock at [27]–[28], [223]–[224] and [228]. In Ruddock at [49]–[50] it is recorded that each of the officers who had been responsible for effecting Mr Taylor’s detention gave evidence of the steps they had taken before detaining him.
[72]This construction is reinforced by s 194(1), although, by force of s 193(1)(a)(iv), it did not apply in a case, such as Mr Fernando’s, where the Minister personally had cancelled a person’s visa. Section 194(1) required the officer who detained a person under s 189 to make the detainee aware of his or her right to apply for a visa under s 195(1). It would defeat the purpose of s 195(1) if “detains”, as used in s 194(1) extended to the second sense of the definition, namely to keep or cause to be kept in immigration detention. This is because the parliament intended that the detainee be made aware of his or her right to apply for a visa only once, namely, as soon as reasonably practicable after he or she was taken into immigration detention. On the other hand, s 189(1) also required other officers to keep the person detained, or cause him or her to be kept in immigration detention when they had one of the requisite states of mind. It follows that an officer with the necessary state of mind could detain a person by causing him or her to be kept in immigration detention because the first officer caused another officer to take the person into immigration detention and then keep the detainee there.
Judge Driver in Yap relied on [72] in Fernando. The purport of that paragraph appears to be that the word “detain” in s.189 of the Act bears both meanings ascribed to it in s.5. It is not entirely clear to me how that construction is reinforced by reference to s.194; however, it is not necessary to address that. On the other hand, it is necessary to understand what the Full Court said about ss.194 and 195 because of Judge Driver’s reliance on that part of the judgment.
It may be noted that the proper construction of s.194 was not in issue for determination in Fernando and so what was said about it was by way of obiter dictum: see for example, Coleman v Power (2004) 78 ALJR 1166 at 1182 [79].
There were two points made in Fernando at [72] about ss.194 and 195. The first is that s.194 required the officer who detained a person under s.189 to make the detainee aware of his or her right to apply for a visa under s.195(1). That is not an accurate statement of the obligation under s.194. That provision requires the officer to “ensure” that the detainee is made aware of certain matters. The difference between the two forms another part of the Minister’s argument in respect of the correctness of Yap and is dealt with further below.
The second point made by the Full Court at [72] is that it would defeat the purpose of s.195(1) if “detains” as used in s.194 extended to the second sense of the definition. That was because the Parliament intended that the detainee be made aware of his or her right to apply for a visa only once, namely as soon as reasonably practicable after he or she was taken into immigration detention.
With great respect to the Full Court, I do not agree that the second sense of “detain” is inconsistent with the purpose of s.195. A natural reading of s.195 means that the time limit for applying for a visa is triggered the first time the applicant is made aware of the relevant matters. While it might be open to construe the provision so that a new time limit arises each time an applicant is made aware of those matters, that would be inconsistent with the scheme of detention in div.7 of pt.2 of the Act. Clearly, that scheme is aimed at keeping unlawful non-citizens in detention for a limited purpose and for a limited time. To allow that time to be extended by continual applications for visas would undermine that aim.
Further support for this conclusion can be drawn from the aim of s.194. That aim is for detainees to be made aware of the relevant time limits. Once they are aware it can be readily concluded that s.194 has been complied with and so the time limit in s.195 has been triggered.
Returning to the Minister’s argument, the second reason for which it was argued that Yap was wrong is that the obligation imposed by s.194 is to “ensure”. This argument was touched on briefly above. The ordinary meaning of “ensure” in this context is to make certain that a particular matter occurs or is done. The consequence of that is that an officer may comply with s.194 by transferring the detainee to a person or place, such as a detention centre, where there are regular procedures in place to enable the detainee to be made aware of the relevant matters. Thus, simply because an arresting police officer does not personally explain the provisions of ss.195 and 196 to a detainee does not mean that he or she has not complied with an obligation under s.194. That means, contrary to what Judge Driver held, it was not necessary for the Tribunal to have inquired into what the arresting officer told the applicant. It would have been sufficient for it to have found, as it did, that the applicant had been “made aware” of the relevant matters. For that reason, even if the Tribunal was wrong to assume that the obligation under s.194 could be met by any immigration officer, that error was immaterial and there was no jurisdictional error.
In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) referred to Craig v State of South Australia (1995) 184 CLR 163 at 179 (“Craig”) and said, at [82]:
... “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
(emphasis added)
See also Minister for Immigration & Border Protection v Lesianawai [2014] FCAFC 141 at [56]-[62] per Buchanan J.
The Minister’s third argument was that no discernible purpose is served by the construction arrived at by Judge Driver. I agree. As I have already noted, the aim of s.194 is for the detainee to be made aware of the provisions in ss.195 and 196. The consequence of that awareness is that the time limits are triggered and the broader purpose of limiting the time a person is kept in detention is achieved. On the other hand, if s.194 can only be complied with by the first detaining officer, given the different types of people who are such officers for the purpose of the Act, there is a significant possibility that the time limit will never arise. That might be the case, for example, if the first officer dies, or because the detention occurred in a mass raid on premises where a large number of unlawful non-citizens are working or living it is impossible to say who the first officer was.
For each of those reasons, I conclude that, on its proper construction, both of the senses of “detain” as set out in s.5 apply to s.194 and that Judge Driver was clearly wrong to find otherwise.
I should record that the Minister also submitted that any error made by the Tribunal in respect of s.194 would not constitute jurisdictional error. This argument was subtly different to the second argument dealt with above. This argument proceeded on the basis that the definition of s.194 was no part of the Tribunal’s task and, so long as it approached that question honestly and reasonably, any error in respect of it was an error within jurisdiction. It is clear, as Mr Kennett SC submitted, that there remains in Australia a distinction between errors of jurisdiction and errors within jurisdiction. However, the distinction can be particularly difficulty to draw with any confidence. Since at least the decision in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 recourse to the categories listed in Craig can no longer provide a definitive answer to whether there is jurisdictional error: see also Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99.
In this matter I have concluded that the Tribunal did not make any error of law. For that reason it is unnecessary to consider the difficult question of whether an error, if established, would have been sufficient to provide the basis for the grant of constitutional relief.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 1 April 2015
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