EFT19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 230
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFT19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 230
File number(s): SYG 2486 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 20 February 2025 Catchwords: MIGRATION – Review of determination that application for Bridging visa was invalid by reason of the bar in s 91K of the Migration Act – whether applicant was “detained” at time Minister made decision to grant him a temporary safe haven visa under s 195A(2) of the Migration Act such that s 91K applied Legislation: Migration Act 1958 (Cth) ss 5, 14, 46, 91J, 91K, 189, 195A Cases cited: AZC20 v Minister for Home Affairs [2021] FCA 1234
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 (2022) 290 FCR 149
Okwume v Commonwealth of Australia [2016] FCA 1252
Division: General Federal Law Number of paragraphs: 53 Date of hearing: 18 July 2024 Place: Sydney The Applicant: In person Counsel for the Respondent: Mr B Kaplan Solicitor for the Respondent: MinterEllison ORDERS
SYG 2486 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 24 September 2019, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application filed on 24 September 2019 seeking judicial review of a determination made by an officer of the Department of Home Affairs (Department) that an application for a Bridging E (Class WE) General (Subclass 050) visa (BVE) was invalid, by reason of s 91K of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The following background to the proceedings is derived from the written submissions of the parties and the available Affidavit evidence. Unless otherwise indicated, it is not in dispute.
The applicant is a citizen of Sri Lanka who arrived in Australia at Darwin on 20 March 2013, as detailed at [1] of an Affidavit of the applicant affirmed on 10 May 2024 (Applicant’s May Affidavit).
On each of 21 May 2013 and 22 July 2013, the applicant was granted a BVE, with the latter being in effect until 14 October 2016.[1]
[1] Clayton Affidavit at [10(f)] to [10(h)] and pp 32 to 33
From 15 October 2016 to 14 February 2018, the applicant remained at large in the Australian community without a visa, the effect of which rendered him as an “unlawful non-citizen” as defined by s 14 of the Act. There is some dispute about the events which took place on 14 February 2018, the evidence in respect of which is discussed below.
At 10:31am on 8 February 2018, an officer of the Department sent an email to the applicant (initial email)[2] which said (original emphasis, anonymisation added):
Good morning [EFT19]
It is a while since we have spoken and I have been trying to call your mobile [NUMBER], however the call goes to voicemail.
Can you please call me on [NUMBER] as I have some news regarding Bridging Visas. A Bridging Visa will allow one to work and have access to Medicare.
Please call me as soon as possible between 9am and 4 pm (no later than tomorrow Friday 09/02/2018)
[2] Applicant’s May Affidavit at Annexure “C”
It can be inferred from a subsequent email from the same officer to the applicant (sent at or around 1:54pm) on 8 February 2018 (instruction email), that the applicant did in fact telephone the officer reasonably promptly after receiving the initial email, during which telephone call an appointment was made for the applicant to attend the Department at 9:00am on 14 February 2018.[3] The instruction email provided details regarding the appointment, including instructions as to what to bring with him (see [35(b)] below).
[3] Clayton Affidavit, Annexure “PC2”
On 14 February 2018, the applicant attended the Department’s offices in Brisbane.[4] The respondent contends that at 9:32am on that day,[5] the applicant was technically taken into immigration detention by an officer of the Department, Officer Davis.[6] The applicant contends that on 14 February 2018, he was not in immigration detention because he was residing at a certain address in Queensland. On 14 February 2018, said to be sometime prior to 11:38am, the Minister made a decision, pursuant to s 195A(2) of the Act, to grant to the applicant a temporary safe haven visa[7] (temporary SHEV) and a BVE.[8] The applicant says that documentation evidencing the temporary SHEV and BVE was later sent to him at the aforementioned Queensland address (at which says he resided at all times relevant to this application).
[4] Applicant’s May Affidavit at [11]
[5] Clayton Affidavit at [9(c)]
[6] Officer Davis, being a different officer than the author of the initial email and instruction emails
[7] Specifically, a Humanitarian Stay (Temporary) visa (subclass 499)
[8] Clayton Affidavit at [6], [9(e)], [10(a)] to [10(e)], 7 to 15 and 27 to 32, Davis Affidavit at [12], [15] and Applicant’s May Affidavit at [12]
The respondent says that at 11:38am on 14 February 2018, being once the temporary SHEV and BE were granted, the applicant was released from immigration detention.[9]
[9] Clayton Affidavit at [9(d)] and Davis Affidavit at [13] to [14]
On 5 September 2018, the (then) Federal Circuit Court of Australia dismissed the applicant’s application for review: CXB16 v Minister for Immigration & Anor [2018] FCCA 2569. A subsequent appeal was dismissed by the Federal Court of Australia (FCA) on 22 May 2019: CXB16 v Minister for Home Affairs [2019] FCA 779. On 21 June 2019 the applicant subsequently applied for Special Leave to the High Court. On 11 September 2019, the application for special leave to appeal was dismissed: CXB16 v Minister for Home Affairs & Anor [2019] HCASL 264.
On 2 September 2019, the applicant applied for a further BVE. That application was considered by a delegate of the respondent to be invalid pursuant to s 91K of the Act on the basis that (as the holder of a temporary SHEV), any application made by the applicant for a visa other than a further temporary SHEV, was not a valid application. It is that s 91K finding, and the consequences of it, which is the subject of these proceedings.
APPLICATION TO THIS COURT
As noted above, the applicant commenced these proceedings by an application to show cause filed on 24 September 2019, which advanced three grounds of review. At the time the proceedings were commenced the applicant was unrepresented. The proceedings were initially docketed to another Judge of this Court (first primary Judge), following which the proceedings were later placed in the central migration docket on 7 August 2020.
On 11 March 2024, the proceedings were docketed to me, and I made orders for the preparation of them for hearing which included an opportunity to the applicant to amend (on or by 16 April 2024), and for the filing of further evidence and written submissions. The proceedings were listed for hearing on 21 May 2024.
The applicant did not file an amended application within the time allowed. However, on
16 April 2024, a Notice of Address for Service was filed indicating that the applicant was now represented by solicitors. On 10 May 2024, a proposed Amended Application (prepared by Counsel) was filed by the applicant’s solicitors, together with written submissions in support thereof.
Given the late amendment, the hearing event on 21 May 2024 was ultimately utilised for case management and Counsel for the applicant sought leave to rely upon the proposed Amended Application (Amended Application). That request for leave was granted, and a further timetable was made to enable preparation for a final hearing, which was scheduled for 18 July 2024. The applicant did not file further submissions, in light of having done so at the time the Amended Application was filed (see [15] above). The respondent filed written submissions on 11 July 2024 as ordered. I have been assisted by all the parties’ submissions.
On 5 July 2024, a Notice of Withdrawal of Lawyer was filed with the Court consequent upon the applicant’s solicitors having served upon him a Notice of Intention to Withdraw within the time prescribed by r 9.03(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
Hearing
On 18 July 2024, the matter came before me for hearing. The applicant was unrepresented but assisted by an interpreter in the Bangla language. The respondent was represented by Counsel.
For the applicant, the Applicant’s May Affidavit was read without objection.
The respondent read the following Affidavits, also without objection:
(a)an Affidavit of Paul Clayton affirmed on 20 June 2024 (Clayton Affidavit) (but not including attachments B, C and D); and
(b)an Affidavit of Troy Gavin Davis affirmed on 24 June 2024 (Davis Affidavit).
None of the deponents of the various Affidavits read for the parties was required for cross-examination.
The Court Book was tendered by the respondent, without objection, and marked as Exhibit “1R”.
While he was ultimately unrepresented at hearing, the Court did have the benefit of the written submissions prepared for the applicant by his legal representatives. The applicant was also invited to speak to his ground of review.
GROUND OF REVIEW
The Amended Application abandoned the grounds in the originating application and instead relies on the following single ground of review:
The respondent erred in finding that s 91K of the Act meant there was no jurisdiction to consider the application.
Particulars
The applicant has never held a temporary safe haven visa so s 91K of the Act did not apply to him.
The question which falls to the Court for determination is whether the application made by the applicant on 2 September 2019 for the BVE was invalid as a result of the operation of
s 91K of the Act. More particularly, whether as at 2 September 2019, the applicant was a person who had not left Australia since ceasing to hold a SHEV. The respondent says that there is no evidence to suggest the applicant had departed Australia since 14 February 2018, and that the remaining question is whether he held a temporary SHEV. The answer to that question turns upon the validity of the grant of the temporary SHEV to the applicant.
Legislative framework
Section 46(1)(e)(v) of the Act relevantly provides:
(1) …an application for a visa is valid if, and only if:
(e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
…
(v) section 91K (temporary safe haven visas).
Subdivision AJ of Division 3 of Part 2 of the Act deals with temporary SHEVs. It relevantly provides:
91H Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.
91J Non-citizens to whom this Subdivision applies
(1) This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:
(a) holds a temporary safe haven visa; or
(b) has not left Australia since ceasing to hold a temporary safe haven visa.
91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.
Section 195A(2) of the Act confers power on the Minister, if he “thinks that it is in the public interest to do so”, to “grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa)”. Section 195 applies “to a person who is in detention under section 189” (see s 195A(1)).
Section 189(1) of the Act imposes the following duty:
Detention of unlawful non-citizens
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.
Section 5(1) defines provides the definition of terms relevant to s 189, and its interpretation, as follows:
(a)detain:
(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.
(b)immigration detention:
(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 or Australian Border Force Commissioner 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).
(c)officer, relevant to the instant case includes:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph
Applicant’s submissions
The applicant contends that he was not detained under s 189 of the Act on 14 February 2018, the corollary of which being that the Minister did not have the power to grant him a temporary SHEV under s 195A of the Act. As a result, the applicant says that s 91J(1)(b) of the Act did not apply to him and, therefore, neither did the s 91K bar.
The applicant next says that because he had an active judicial review application on foot when he made the BVE application (see [10] above) and as at the time of the delegate’s decision (see [10] and [12] above), he would have qualified for a further BVE. The applicant says that the decision to reject the BVE application as being invalid pursuant to s 91K of the Act was therefore a material jurisdictional error.
Respondent’s submissions
The respondent disputes the applicant’s interpretation and says that the Davis Affidavit and Clayton Affidavit evidence that the applicant was in fact “detained” under s 189 of the Act when the Minister granted a SHEV to him under s 195A(2), such that the balance of the applicant’s contentions cannot stand. The respondent says therefore, that the BVE was properly found to be invalid by reference to s 91K of the Act.
Consideration
Whether or not the applicant’s application for a BVE was invalid, ultimately turns upon the question of whether s 91K of the Act applied to him.
The evidence before the Court demonstrates the following:
(a)by reference to the Davis Affidavit, the respondent submits that, in early 2018, the Status Resolution area of the Department (which is said to be generally responsible for granting visas to people in the community), made arrangements for a large group of people to attend an office of the Department in Brisbane to be detained and granted visas;[10]
[10] Davis Affidavit at [6]
(b)consistent with the above strategy, the applicant was sent the initial email by a case manager inviting him to contact her. The initial email included the statement that she had “some news regarding Bridging Visas”[11] which “will allow one to work and have access to Medicare”. Perhaps unsurprisingly, the applicant found that invitation sufficiently enticing as to take it up and to contact the case manager by telephone as requested. There is no evidence of what was discussed in their subsequent telephone call, other than what is recorded in the subsequent instruction email sent to the applicant on 8 February 2018, confirming that the applicant would attend the Department’s Brisbane offices on 14 February 2018.
[11] Applicant’s May Affidavit, Annexure “C” and see [6] above
(c)in the absence of evidence as to what the applicant was verbally told during the aforementioned telephone call with the case manager, the instruction email relevantly reveals the following information was conveyed to the applicant (original emphasis):[12]
[12] Clayton Affidavit, Annexure “PC2”
•You must be at the office at 9:00 am.
•You may be required to wait here for quite a few hours while the Minister completes the required paperwork.
•You must bring photo identification (drivers licence and or ImmiCard).
•Once you are in detention, you will not be allowed to leave the office until the visa is granted.
•Please bring any food, drink, medicine.
•As previously discussed the Minister is the only person who can grant you a Bridging Visa E and this grant should be for a period of 6 months. The visa will also allow you to work and have access to Medicare.
You will be handed a letter prior to leaving the office and you can take this to Medicare and apply for a Medicare Card.
(d)the instruction email informed the applicant that he would be “in detention” and “would not be allowed to leave the office until the visa is granted”;
(e)Mr Davis details a particular procedure which he was directed to, and says he did, carry out at the Department’s Brisbane offices on 14 February 2018 in his capacity as a case manager (procedure);[13]
(f)Mr Davis is candid about the fact that in carrying out the procedure he has no specific recollection of the applicant[14] being part of what he describes as a group which was “quite large” such that it “necessitated the division of the groups into two or three separate groups”.[15] However, before the group was divided, Mr Davis says he was directed by a supervisor to conduct the procedure which included that he “read scripts to the group as a whole”.[16] Mr Davis specifically recalls that he was careful to read the first of these scripts to the whole group, verbatim, and that it included words to the effect (emphasis added):[17]
My name is Troy and I am an officer from the Department of Home Affairs. I reasonably suspect that you are an unlawful non-citizen; that is someone who is not an Australian citizen and does not hold a valid Australian visa. I am detaining you under section 189 of the Migration Act. As you are in immigration detention you are not free to leave.
(first script).
(g)Mr Davis has a recollection that, until the persons in the group were informed that they were free to leave, no one left or attempted to leave the room in which they were held until after he read them a second script, which pertained to the grant of the visas (second script).[18]
[13] Davis Affidavit at [11] to [15]
[14] Davis Affidavit at [16]
[15] Davis Affidavit at [7]
[16] Davis Affidavit at [10]
[17] Davis Affidavit at [11]
[18] Davids Affidavit at [12] to [14]
By his own Affidavit evidence, the applicant says the following (with the reference to Annexure “C” being to the instruction email):[19]
On 14 February 2018, I went to the Department's office in Brisbane. I showed the email to the security guard at the entrance and I went inside. I sat in the waiting room waiting to be called by a departmental officer. After about 6 or 7 hours, a departmental officer came and took me to another room. He asked me if I knew why I was here. I told him that I had come to the office because I had received the Department's email. He told me he would give me a BVE for 6 months with work rights and access to Medicare. He gave me an Access to Medicare letter. I signed the Departmental letter dated 14 February 2018 in front of the officer. He told me to call him when the BVE expired. I then left the Department's office. Attached hereto and marked "C" is a copy of the Department's email.
[19] Applicant’s May Affidavit at [11]
The applicant’s recollection is largely consistent with the version of events given by Mr Davis of the events of 14 February 2018. While the applicant does not make specific reference to the group nature of the event, the information which he says was conveyed to him by a Department officer is relatively consistent with Mr Davis’ evidence about the content of the second script.
On the material before me, and the uncontested evidence of Mr Davis about the fact (and content) of the first script, I am prepared to accept that he read the first script to the group/s at the Department’s Brisbane office who had attended for the purposes of being granted visas in response to the Department’s initiative to regularise the migration status of certain persons. I am also prepared to accept that the applicant was one such person in the group/groups.
While it is understandable that, as a lay person, the applicant may not consider that he had been “detained”, or more specifically that he was held in immigration detention on 14 February 2018, the fact that he commenced his day at his Queensland home and ended his day there, is not determinative of the question. The Court must assess for itself whether the material establishes that the applicant was detained and, specifically, whether that detention was for the purposes of s 189(1) of the Act.
Detention
Having regard to the statutory definitions set out at [30(b)] above, it is relevant to consider jurisprudence about the meaning of the word “restrained” for the purposes of paragraph (a)(i) of the definition of “immigration detention” in s 5 of the Act.
In that specific context, in Okwume v Commonwealth of Australia [2016] FCA 1252 (Okwume) at [115], Charlesworth J found that the term “restrain”:
is intended to convey the meaning that the physical freedom of movement of a person is curtailed in such a way that might otherwise be actionable in tort.
In AZC20 v Minister for Home Affairs [2021] FCA 1234, Rangiah J said the following at [134] to [136], citing Okwume (emphasis added):
The Act establishes three forms of “immigration detention”. They cover different, although overlapping, territory. The first form, in paragraph (a) of the definition of “immigration detention” in s 5(1), involves an unlawful non-citizen being “in the company of, and restrained by” an officer or other authorised person. The second, in paragraph (b) of the definition, requires the person to be “held” by, or on behalf of, an officer, in a detention centre; or in a prison or remand centre; or in a police station or watch house; or on a vessel (where s 249 applies); or in another place approved by the Minister.
The difference between the first form and the second form may be illustrated by using an example of an unlawful non-citizen who is in immigration detention when “held” in a detention centre and remains in immigration detention while “in the company of, and restrained by” an officer when taken to a hospital. It can be accepted that the first form will generally be used in the short-term, whereas the second form may be used for both short-term and longer-term detention.
In respect of the first form of immigration detention, on its ordinary meaning and in the context of the Act as a whole, “restrained” includes direct physical restraint, but also encompasses directing restrictions or limits upon the physical space in which an unlawful non-citizen has liberty. It is intended to convey the meaning that the physical freedom of movement of a person is curtailed in such a way that might otherwise be actionable under the tort of false imprisonment: see Okwume v Commonwealth of Australia [2016] FCA 1252 at [115]. That is, constant, direct, physical restraint is not required. This is made clear by other uses of the term “restrain” in the Act where the term is used with reference to whole areas, such as “on” (not “within”) a “vehicle or vessel”, “ship or aircraft”: see, for example, ss 198AD(3)(b), 198B(2)(b), 245F(9A)(b).
On appeal, a Full Court of the Federal Court said the following in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 (2022) 290 FCR 149 (AZC20) at [85], [87] and [94] per Jagot J, Mortimer J (as her Honour then was) and Abraham J (emphasis added):
“[B]eing in the company of, and restrained by” in para (a) concerns temporary, transitory custody, hence the use of the word “company”. That definition does not focus on the prescription of a place where a person is detained; rather, it looks to the presence of a detainer, who is the person with a capacity, and lawful authority, to restrain an individual. The first and obvious situation in which this aspect of the definition of “immigration detention” would be engaged is when an individual is first detained under s 189 of the Act. At that point, it is highly likely a person will not be in a place of detention, but will be in a public or private location. …
…
In contrast to the term “in the company of”, para (b) of the definition of immigration detention uses the term “held by or on behalf of”. The verb “held” indicates custody in a place, a meaning confirmed by subparas (i) to (v) in (b), all of which focus on the location at which a person is to be kept. …
…
It is also important to recognise that para (a) employs the phrase “being in the company of, and restrained by” (emphasis added) an officer … Restraint in this context means lawful restraint, but it encompasses the use of such force, viewed objectively, as is reasonably necessary in the circumstances … Read together and within their limits, these definitions authorise what would otherwise be tortious conduct, for the sole purpose of carrying into effect the scheme of executive detention for which the Migration Act provides. … We accept the primary judge is correct in [136] of the reasons to observe that the statutory context in which the verb “restrain” is used throughout the Migration Act suggests it may not be limited to “direct physical restraint”, but rather includes a variety of constraints on a person’s liberty and freedom of movement. Nevertheless, in the particular context of the definition of “immigration detention”, and read with the definition of “detain”, para (a) is contemplating a form of deprivation of liberty that extends to the use of reasonable force where reasonably necessary, but for a short period of time or temporary purpose.
By reference to each of the decisions in Okwume and AZC20, in the present case, I am satisfied that the applicant was in the company of, and restrained by, Mr Davis on 14 February 2018. That the group/s of persons does not appear to have been physically restrained is not to the point. Given Mr Davis’ evidence that no person attempted to leave during the procedure he was overseeing, there is nothing to suggest that had reasonable force been necessary to achieve restraint of any such person, that it would not have been deployed.
It can be accepted that the detention was transitory in nature and was effected for a short-term purpose, namely, for the Minister to grant a temporary SHEV and a BVE to him under
s 195A(2) of the Act.
It can be accepted that the applicant may not have understood the temporary and somewhat constructive nature of his detention.
However, I am satisfied that the applicant was restrained by Mr Davis when he was told that he was being “detained … under section 189 of the Migration Act”, and am further satisfied that he was “not free to leave” because he was “in immigration detention”.[20] I accept the submission of the respondent that, put another way, the applicant’s physical freedom was curtailed in a way that might otherwise have been actionable in tort.[21] On balance, and based on the inference that the applicant was part of the groups in respect of which Mr Davis undertook the procedure, I am satisfied that the applicant was in the presence of Mr Davis at the Brisbane office of the Department at all times between 9:32am and 11:38am.[22] I accept that as an “officer” (within the meaning of the definition of that word in s 5(1) of the Act), Mr Davis had lawful authority to restrain the applicant.
[20] Davis Affidavit at [11]
[21] See [40] to [41] above
[22] Davis Affidavit at [10] to [15], Clayton Affidavit at [9(c) to (d)]
The evidence of Mr Davis confirms that what occurred accorded with that which had been foreshadowed to the applicant in the instruction email, namely that the applicant may be required to wait at the Department’s office while requisite paperwork was completed and that once the applicant was “in detention”, he would “not be allowed to leave the office until the visa is granted”.
The evidence of Mr Davis establishes that he reasonably suspected the persons whom he detained that day were unlawful non-citizens and, therefore, were being detained under s 189 of the Act. Accordingly, I accept that the applicant was detained by Mr Davis under s 189(1) of the Act.
While the respondent acknowledges there is no direct evidence as to the precise time at which the Minister granted a temporary SHEV to the applicant on 14 February 2018, it is open to infer, and I do, that it is more likely than not that the Minister granted that visa at a time while the applicant was detained that day. That is particularly so, given the recollection of Mr Davis that after reading the script to each group he was required to wait for confirmation from the supervisor before he could inform each group that they had been granted visas. I agree that this suggests there was coordination between the Minister (or those in his office) and the Department as to the time at which each unlawful non-citizen was to be granted a visa. It also broadly accords with the applicant’s recollection of the events of the day.[23]
[23] Applicant’s May Affidavit at [11]
The respondent also relies upon the fact that this process was confirmed by a Departmental submission to the Minister dated 5 January 2018.[24] The first page of that submission states, in relation to timing, “[p]lease action at the appointment time on 14 February 2018 to allow for arrangements to be made for the grant of visas”.[25] Importantly, the submission goes on to state:[26]
To enliven your power under section 195A of the Act, on the day of the proposed date of effect of the BVEs, and in advance of you signing the decision documentation at Attachment A, the Department will place the listed IMAs into administrative immigration detention. The Department will liaise closely with your office and these IMAs regarding these arrangements to ensure that all of them are administratively detained prior to you exercising your detention intervention power.
[24] Clayton Affidavit at [6]
[25] Clayton Affidavit, Annexure “PC1”
[26] Clayton Affidavit, Annexure “PC1” at [12]
CONCLUSION
For the foregoing reasons, the evidence in this matter supports a conclusion that the applicant was in immigration detention for the purpose of s 189 of the Act, at the time the Minister granted a temporary SHEV to him. There is no alternative basis upon which the applicant seeks to impugn the validity of the grant of the temporary SHEV to him. As such, I accept that s 91K operated to render invalid the application for a BVE, purportedly made by the applicant on 2 September 2019.
Accordingly, the applicant has been unsuccessful in establishing error in respect of that decision. The application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 20 February 2025
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