Foo v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1277

FEDERAL COURT OF AUSTRALIA

Foo v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1277

PENG BOON FOO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N933 OF 2003

HILL J
6 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N933 OF 2003

BETWEEN:	PENG BOON FOO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	6 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Court notes the undertaking given by counsel for the applicant as to damages in accordance with the usual form.
2. The respondent be restrained until further order from removing the applicant from Australia.
3. The order be entered forthwith.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N933 OF 2003

BETWEEN:	PENG BOON FOO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	6 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a national of Singapore, applied to the Court for judicial review of a decision made by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) refusing to grant to the applicant a bridging visa E subclass 050.  In the application the applicant seeks alternatively a declaration that the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) has no power to remove the applicant from Australia.  The applicant claims interlocutory relief restraining the Minister from taking any steps to remove him from Australia until further order, and an order that the applicant be released from detention.  It is the claim for interlocutory relief which is presently before me.

2. The applicant is a rather high profile person who has been the subject of much media interest.  I would point out that I put from my mind altogether anything I may have read of the applicant or heard of him in other media and the case is decided purely on the material which is presently before me.

3. As is evident from the orders sought the applicant is presently in detention and has been in detention since 31 July 2003.  On 5 August 2003 a delegate of the Minister, purporting to act in pursuance of the provisions of the Migration Act 1958 (Cth), notified the applicant that arrangements had been made for his removal to Singapore on a flight departing Sydney today. Clearly the short period of notice he was given has meant that neither the legal advisers of the applicant nor those of the respondent have had the time they would wish to have to prepare the present application.

4. It is common ground between the parties that as the present proceedings before me are interlocutory the applicant must show to succeed in obtaining injunctive relief that there is an arguable issue to be tried and that the balance of convenience is in favour of the grant of that relief.  It is clear from the case law that there is an interrelationship between those two elements so that, for example, the greater the balance of convenience may favour the relief the less difficult it will often be for an applicant to show an arguable issue.  It is convenient to deal separately with the question whether there is an arguable issue in respect of the power of the Minister to remove the applicant and the question whether there is an arguable issue in respect of the application the applicant has made for judicial review of the decision to refuse the grant to him of the bridging visa.

   The Minister's power to remove the applicant

5. Counsel for the applicant submitted that there was no power in the Minister to remove the applicant in the present circumstances.  If power were to exist that power would be found in s 198 of the Act which is concerned with removal from Australia of unlawful non citizens.

6. The section is framed in terms of obligation rather than power.  Each of the subsections of it other than subsections 3 and 10 which are ancillary subsections state the circumstances in which the Minister must remove an unlawful non citizen.  Clearly the framing of the section carries with it power conferred upon the relevant officer and referred to remove non citizens.  The solicitor for the Minister was unable to point to any other section of the Act which conferred power upon the Minister or an officer of the department to remove the applicant.

7. It is common ground for present purposes in the interlocutory proceedings that the applicant lawfully entered Australia in August 1994.  At that time he held a substantive visa.  The applicant was subsequently granted a further visa to remain in Australia for a short period of time but the last substantive visa he held expired and has not been renewed.  No further visa has been granted to the applicant since the last substantive visa. It is therefore common ground that the applicant is presently an unlawful non-citizen for the purposes of s 198.

8. Counsel for the applicant took me through subparagraphs (1), (2), (2)(a), (5), (6), (7), (8) and (9) and submitted that none of these subparagraphs applied to the applicant.  As I have already suggested the notice to the applicant of his removal did not express any particular section pursuant to which the removal was to be undertaken.  It merely referred to the Act.  In the time available to the solicitor for the Minister, which it must be conceded has been very short, the solicitor for the Minister has been unable to obtain instructions as to which subsection of s 198 was relied upon as empowering the officer who made the decision to remove the applicant.  Further the solicitor for the Minister did not seek before me to rely upon any subsection of s 198 other than subsection (5).  It is convenient therefore to turn directly to that subsection.  It provides:

   ‘(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

   (a)   is a detainee; and

   (b)  was entitled to apply for a visa in accordance with section 195, to apply under section 137K for revocation of the cancellation of a visa, or both, but did neither.’

9. Only the first part of paragraph (b) is relevant in the present circumstances. Detention of an unlawful non citizen is authorised by s 189 of the Act.  Section 194 provides that as soon as reasonably practicable after an officer detains a person that officer must ensure the person is made aware of inter alia the provisions of s 195.  Section 195 relevantly then provides:

   ‘(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.’

10. It appears that on 30 July 2003 the applicant was placed in immigration detention in Canberra.  On the same day the applicant applied for the bridging visa E subclass 050 the subject of the present application.  It can be inferred that he was made aware of the provisions of s 195 by an officer pursuant to the obligation imposed so to do by s 194. 

11. It is the submission on behalf of the applicant that he was entitled to apply for a visa in accordance with s 195 and in fact did so within the time specified so that he does not fall within the provisions of s 198(5).  For the Minister it is submitted that the language of s 195, expressed as it is in broad terms to refer to any visa, should indeed be read down as referring only to a substantive visa, or perhaps as encompassing some but not all kinds of bridging visas as well as substantive visas, the bridging visas being only those which operate in aid of substantive visas.

12. The word ‘visa’ is defined in s 5 of the Act, unless the contrary intention applies, to have the meaning given to it by s 29 of the Act.  Section 29 empowers the Minister to grant a non citizen permission inter alia to remain in Australia.  Section 29, one would think, should be read in connection with the other provisions of Division 3 which concern themselves with various kinds of visas including, see s 37, bridging visas.  In various sections of the Act, including indeed subsection (2) of s 195, there is used the word ‘substantive visa’.  A substantive visa is defined to be, in s 5, a visa other than inter alia a bridging visa.  It seems to be quite strongly arguable that the word ‘visa’ when used in s 195 and the corresponding provisions of s 198(5) refer to visas of all kinds and not limited to visas which are substantive visas, or some intermediate category which encompasses substantive visas together with some kinds of bridging visas not being the kind involved here. 

13. The Minister's solicitor has submitted that if the word ‘visa’ is given the meaning submitted for by counsel for the applicant strange results follow as in the case like the present.  Clearly a construction will not be adopted which brings about absurd results.

14. Clearly too, the Court will construe legislation so as to give effect to the parliamentary purpose and in a way that will not lead to an extraordinary result.  The present is not the occasion to come to a final conclusion on the point.  It may well be that other judges or a Full Court have had need to consider the provisions of s 195 or s 198(5) but time has not enabled the necessary research to be done either by the legal advisers to the party or by me.  It suffices here merely to say that endeavouring to interpret the provisions of s 195 by reference to the context in which the subsection appears.  At least on a prima facie basis the ordinary meaning of the word ‘visa’ is such as to encompass all classes of visas.

15. It is not necessary to say much concerning the issue of balance of convenience.  Clearly an applicant removed against his or her will from this country and faced at least with a prima facie demand of payment of sums of money to pay for the wished for removal suffers considerable humiliation and inconvenience as well, obviously, as being deprived of the opportunity to do such things as that person may wish to do in this country not to mention the difficulty of being able to return.  There seems little doubt particularly when on the face of it there appears to be a strong argument that there is no power to remove the applicant in the present case that the balance of convenience is in favour of the applicant not being removed until the matter is finally resolved.  It was for this reason that I made orders that the applicant be not removed pending further hearing, indicating that I would publish my reasons after the adjournment.

    The delegate’s refusal to grant to the applicant a visa

16. It is unnecessary to consider in any detail the second issue which is the subject of the application for judicial review.  Shortly put, it was submitted on behalf of the applicant that there was an arguable issue that the delegate of the Minister who acted to refuse the grant to him of a bridging visa erred in law.  It is a criterion of the bridging visa E subclass 050 visa for which the applicant applied that inter alia the applicant:

    Meets the requirements of this subclause, if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

17. It was submitted that the material documenting the decision showed that the decision maker did not apply this criteria.  The document in question contains completed details of the applicant's particulars and in a box headed ‘Details/Reasons’ states:

    Does not hold an acceptable travel document and it is unclear as to whether applicant can obtain a travel document within a reasonable period, refer also to Attachment A.  Attachment A is quite uninformative on the present issue.

18. The reference to ‘acceptable travel document’ is a reference to a document which the applicant presented to an officer of the Department when invited to attend a meeting with the officer so that the applicant could be granted a bridging visa for a period of one month.

19. It seems that the applicant attended the meeting and produced to the officer what the documents refer to as ‘bogus travel documents’.  The implication would seem to be that the applicant had presented a false passport to the officer.  It is not surprising that the officer would remark upon this matter but that is not the point.  The question is whether the officer considered the relevant criteria for the issue of the visa and for present purposes it is said the only relevant criteria would be whether at the time the application was made the delegate of the Minister considered and reached a state of satisfaction that the applicant was making acceptable arrangements to depart Australia.

20. I think that if there is an arguable issue at all here the argument is far from a strong one.  Faced with a false passport the decision maker might easily conclude that the applicant was not proposing for example to obtain a passport for the simple reason he had one, albeit forged but it is not necessary for me to form any decided view on the question which ultimately may turn on matters of evidence, whether reasons of the decision maker or other material that may have been before the decision maker at the time the decision was made, it suffices that the applicant has made out an arguable issue on the matter of power.

    Removal from Detention

21. As earlier indicated, the counsel for the applicant sought on his behalf that the applicant be released from detention.  It was said that undertakings would be given in the form of a bond of $15,000 securing that the applicant would presumably comply with conditions, whether reporting conditions leaving the country or otherwise was not stipulated in any detail. It was said that the applicant would undertake to reside in the house where he has been residing in Sydney, in Strathfield and would notify any change of address.

22. It was said that I could, should I regard as appropriate, consider an order on conditions such as requiring the applicant to report from time to time. Counsel for the applicant submitted that I had power to release the applicant from detention, that power extending from s 23 of the Federal Court of Australia Act 1976 (Cth) and I was referred to a decision of a Full Court comprising Beaumont, Whitlam and Stone JJ in Untan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 8. I should say that while the reasoning in Untan is clearly deserving of great respect, that decision is not really authority for the proposition that the Court has the power, as in fact the Court in that case refused to release the applicant from detention having regard to discretionary matters, particularly a threat on the part of Mr Untan to shoot the Minister.

23. However, I am prepared to accept for these present purposes that such power exists:  see VFAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1062. The question is whether, in the present circumstances, that power should be exercised. It is of course relevant to that power that there be an arguable issue. The arguable issue, however, could not be the issue of power to remove the applicant from Australia. If there is an arguable issue it must reside in the application for judicial review.

24. As I have already indicated I do not think that the argument on judicial review on the material at present before me is in any way strong, although it might perhaps be arguable.  I am prepared to accept that the balance of convenience would always on the face of it appear to favour release of a person from detention.  Against that, however, I must also take into consideration the evident policy of the Act and, particularly, Division 7 of Part II of the Act which requires unlawful non citizens within the Migration zone to be detained although that detention ultimately must be subject to the person being removed from Australia.  Obviously if there is no power to remove a person from Australia it is unlikely that Parliament could have contemplated that a person be detained indefinitely.

25. However, in the present circumstances I think there are discretionary reasons why I should not make the order sought.  I am particularly concerned by the fact that the applicant saw fit to present to officers of the Department a bogus travel document when, clearly, he must have been aware that it was bogus and, presumably, hoped that the fact that it was not a real travel document would escape attention. 

26. Relevant to the question of whether he should be released is the question whether he might escape into the community or perhaps become involved in activities that are illegal.  I'm not sure that a bond of such a small amount as $15,000 would be a deterrent to the applicant.  Reporting conditions, likewise, unless on a daily basis are also not much of a deterrent to a person who may wish to disappear from view, but particularly, I am concerned with the fact that the applicant saw fit to present a document which clearly was illegally obtained.  In the circumstances, as a matter of discretion, I do not propose to make the order sought.

27. Only two matters now remain outstanding.  The first is to make such directions as may be necessary and appropriate so that an urgent hearing of the matter can be obtained on a final basis. The other outstanding matter is the question of costs of the present interlocutory application. The costs of the interlocutory proceedings will be costs in the proceedings.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            6 August 2003

Counsel for the Applicant:	J Smith
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	G Peek
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 August 2003
Date of Judgment:	6 August 2003