Ishak v Minister for Immigration & Border Protection
[2015] FCCA 2691
•13 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISHAK v MINISTER FOR IMMIGRATION & BORDER PROTECTION | [2015] FCCA 2691 |
| Catchwords: MIGRATION – Review of decision by a delegate of the respondent that the applicant detainee’s visa application was invalid – whether the Department of Immigration and Border Protection complied with the requirements of section 194 of the Migration Act 1958 (Cth) by ensuring that the applicant was, as soon as reasonably practicable after being detained, made aware of the provisions of sections 195 and 196 of the Migration Act 1958 (Cth) – whether delegate’s decision was affected by jurisdictional error – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.137J, 189, 194, 195, 196, 198 |
Cases cited:
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
| Applicant: | GEORGE SALAH ISHAK |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2535 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 2 October 2015 9 October 2015 |
| Date of Last Submission: | 13 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of an Arabic interpreter. |
| Solicitor for the Respondents: | Ms. Sophie Given (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2535 of 2015
| GEORGE SALAH ISHAK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Department of Immigration and Border Protection (“the Department”) dated 31 August 2015 (“the Delegate”).
Background
The applicant is a citizen of Lebanon. The applicant arrived in Australia on 31 March 1998. In June 1998, the applicant applied for a protection visa which was refused by a delegate of the respondent and whose decision was affirmed by the Refugee Review Tribunal.
The applicant is presently in detention at Villawood Immigration Detention Centre. The applicant’s bridging visa was cancelled on 28 April 2015 and he was taken into detention on that date under s.189 of the Act.
On 26 August 2015, the applicant was given a Notice of Intention to Remove from Australia under s.198 of the Act. That document advised the applicant that arrangements have been made for him to be removed on 26 August 2015, arriving in Lebanon on 27 August 2015. However, the applicant’s intended removal on 26 August 2015 was aborted at the airport.
On 31 August 2015, the applicant applied for a Medical Treatment (subclass 602) visa.
The Delegate wrote to the applicant informing him that, as he had not complied with the requirements for applying for a visa as a detainee, as disclosed in s.195 of the Act, his application for a Medical Treatment (subclass 602) visa was invalid (“the Notification Letter”). The Notification Letter informed the applicant that invalid applications cannot be considered and, as such, the applicant’s application was not accepted and, therefore, not assessed against the criteria for the relevant visa.
The Notification Letter further advised the applicant that his failure to lodge a valid application for a visa meant that he was not eligible for a bridging visa.
On 15 September 2015, the applicant filed an application in this Court seeking judicial review of the Delegate’s decision.
On 30 September 2015, the applicant was given a further Notice of Intention to Remove from Australia, informing him that he was liable for removal on 7 October 2015.
Directions hearing on 1 October 2015
On 1 October 2015, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the matter was listed for hearing on 2 October so that it could be dealt with on an expedited basis as I was informed that the applicant was in detention and was shortly to be removed from Australia.
The applicant was given leave to bring to Court on 2 October 2015 an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit as well as submissions in support. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
Hearing on 2 October 2015
At the hearing on 2 October 2015, the applicant stated to the Court that he had arranged an opportunity to meet with a lawyer and that he wished to have a chance to obtain some further assistance and advice. On that occasion, it emerged that the decision of the Delegate had the effect of being a notification to the applicant that his application for a medical treatment visa was invalid.
The consequence of an invalid application, according to the Notification Letter, was that s.195 of the Act was triggered; and that if the applicant wished to apply for a visa, he was required to do so within two working days after the day on which s.194 of the Act was complied with in relation to his detention. Alternatively, if the applicant informed an officer of the Department in writing within those two working days of his intention to apply for a visa, then he was required to make such an application for a visa within the next five working days after those two working days.
The Notification Letter informed the applicant that an invalid visa application could not be considered. It informed the applicant that he was currently unlawful and did not hold a visa to remain in Australia. The Notification Letter further stated that a visa application for a substantive visa was also an application for a bridging visa. However, as the applicant’s substantive visa application was invalid, the associated bridging visa application was also invalid. Accordingly, the applicant had not been granted a bridging visa.
The Notification Letter informed the applicant that he was required to depart Australia or contact the Department as soon as possible for advice and assistance on resolving his visa status. It informed the applicant that he may wish to consider lodging a new visa application, but that he should check whether any such visa application meets the requirements for a valid visa application. The Notification Letter also stated that the applicant may alternatively wish to consider lodging a visa application that was more suitable to his circumstances. It was further stated that any visa application would be considered on its individual merits.
Further, the Notification Letter informed the applicant that there was no right of merits review in respect of a decision that a visa application was invalid. It then provided various contact details so that the applicant could make any enquiries.
At the hearing on 2 October 2015, it emerged that in order for s.195 of the Act to be triggered, it was necessary for an officer of the Department to comply with s.194 of the Act. Relevantly, s.194 of the Act required that the applicant be made aware of the provisions of ss.195 and 196 of the Act as soon as practicable after he was detained.
The matter was then stood over for hearing on 9 October 2015, before me. The respondent was directed to file and serve any evidence and submissions upon which the respondent intended to rely on by close of business on 7 October 2015. The applicant was directed to bring to Court on the next occasion all documents upon which he wished to rely.
Hearing on 9 October 2015
On 9 October 2015, the matter commenced with the respondent seeking to read an affidavit of Laurence Farquhar, affirmed on 7 October 2015, and filed on 7 October 2015. In his affidavit, Mr Farquhar deposed that he was Border Force supervisor and that he conducted an interview with the applicant on 28 April 2015 following the cancellation of the applicant’s visa. The substance of Mr Farquhar’s evidence was to the effect that the applicant was provided with the information necessary to comply with s.194 of the Act.
The applicant did not bring to Court any relevant documents upon which he wished to rely, despite having been directed to do so on 2 October 2015. For that reason, the applicant was given leave to give oral evidence in relation to his application. However, the applicant then stated that he had only been handed a copy of Mr Farquhar’s affidavit in Court that morning. Accordingly, the matter was stood down to enable the applicant to have an opportunity to read the affidavit of Mr Farquhar with the assistance of an interpreter.
When the matter resumed, I understood the applicant to say that he had read Mr Farquhar’s affidavit. The applicant was then sworn in to give evidence in support of his application. He was given a copy of the affidavit and asked if he had read it. At this point, the applicant stated that he had not finished reading the affidavit. In circumstances where the applicant had not finished reading the affidavit, and the affidavit was some five pages long with various annexures that were critical to the applicant’s case, and given that the applicant was unrepresented and required the assistance of an interpreter, I adjourned the matter to 13 October 2015 for hearing to allow the applicant a further opportunity to consider Mr Farquhar’s evidence.
I explained to the applicant that on the next occasion, if he wished to give evidence on his behalf, leave was likely to be given to him to do so. I stated this because the respondent’s solicitor requested that the applicant be required to put on affidavit evidence prior to the hearing. However, having regard to the fact that the applicant was unrepresented and required the assistance of an interpreter, I felt it was fairer to the applicant to enable him to give his evidence orally and for him to be asked questions about that evidence at the time. He was also directed to bring with him any documents on which he intended to rely.
Hearing on 13 October 2015
The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. The applicant confirmed that he relied on the grounds identified in his application filed on 15 September 2015, as follows:
“1. Since I was detained in Villawood I was never given an advice or told that I have the right to lodge any application within certain time.
2. I am terribly sick and wish that the Federal Circuit Court make a decision to allow me to lodge an application under medical treatment.
3. I am the spouse of an Australian citizen and the father of an Australian daughter.
4. The Department of Immigration want to deport me and deprive me of my wife and daughter and their action is unreasonable and unjust.
5. I ask the Honourable Court to rule in my favour and allow me to lodge the application for medical treatment in Australia and to stop any deportation order.”
I explained to the applicant that the grounds make bare assertions that do not disclose any error capable of review by this Court. The applicant had nothing relevant or coherent to say in support of the grounds. I understood the applicant’s complaint to be that he had not been given information in accordance with s.195 of the Act.
Relevantly, s.195 of the Act states:
“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 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.”
Section 194 of the Act in turn provides:
“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.”
Section 137J relates to the cancellation of student visas and is not relevant.
Further, s.196 of the Act provides:
“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 (l)(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 (l)(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.”
At the recommencement of the hearing this morning, the applicant was sworn in and gave evidence on which he was cross-examined.
At the commencement of submissions, the applicant asked for an adjournment in order to seek legal advice or to request the Court to have a lawyer appointed for him. I explained to the applicant that the Court does not offer that service to persons. The applicant then stated that he had documents at Villawood Immigration Detention Centre relating to his attempt to try and seek legal advice, and that he had not brought those documents to Court today. He explained that it was for that reason that he wished to have an adjournment of today’s hearing.
The applicant stated to the Court today that he did have documents that he chose not to bring because he did not understand the law and did not know what he needed to bring. I find that explanation curious in circumstances where, on two occasions, I have made it very clear to the applicant that he should bring to Court any documents that he wished the Court to consider.
The adjournment was opposed by the solicitor for the respondent, Ms Given, on the basis that the matter had already had two adjournments, and that on each occasion, the applicant was requested to bring to Court whatever documents he wished to rely on in support of his application.
There is a public interest in ensuring that administrative matters are finalised (see Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]-[17] per McHugh J). The applicant has been directed on two prior occasions to bring to Court all documents upon which he wished to rely in support of his application for judicial review. I do not accept the applicant’s explanation that he did not understand that he was to bring any documents to Court. On both prior occasions, the applicant had the assistance of an interpreter and did not suggest that he did not understand. Further, at no time has the applicant identified the nature of any documents that he wished to provide to the Court in support of his application.
In the circumstances, having regard to the overall interests of justice, the applicant’s application for an adjournment was refused.
Section 195 issue
The only issue before this Court is whether or not the matters notified to the applicant by the respondent in the Notification Letter are without error. It is common ground that the applicant’s visa was cancelled and that the applicant was taken into detention on 28 April 2015.
As stated above, the applicant had no documents to provide to the Court in support of his application for judicial review.
As stated above, the respondent read the affidavit of Laurence Farquhar, affirmed 7 October 2015, and filed on 7 October 2015. The respondent also tendered copies of documents headed ‘Very Important Notice’ in English, together with a translated version in Arabic. Those documents together were marked Exhibit 1R. Additionally, the first respondent tendered exhibits to Mr Farquhar’s affidavit, being documents that all parties agreed were left by the applicant following his interview with Mr Farquhar on 28 April 2015, prior to being transferred to the Villawood Immigration Detention Centre. Those documents, exhibited to Mr Farquhar’s affidavit as ‘LF1’ and’ LF2’, were together marked Exhibit 2R. Those documents included a full copy of the Very Important Notice in Arabic signed by the applicant.
Section 194 of the Act provides that as soon as reasonably practicable after an officer of the Department detains a person under s.189 of the Act, the officer must ensure that the person is made aware of the provisions of ss.195 and 196 of the Act.
In his affidavit, Mr Farquhar deposed that for the purposes of s.194 of the Act, he was the officer who was responsible for ensuring that the applicant was made aware of the provisions of ss.195 and 196 of the Act. Mr Farquhar deposed that he did so at the interview on 28 April 2015 by providing to the applicant with the Very Important Notice in Arabic.
Mr Farquhar deposed that he commenced his interview with the applicant by taking him through a document headed ‘Compliance Client Interview’, a copy of which was annexed to his affidavit. That annexure recorded that the interview commenced at 2.28pm and concluded at 3.12pm. Mr Farquhar deposed that following the interview, he gave to the applicant a copy of the relevant information that is given to persons taken into immigration detention, and contained in the Very Important Notice.
I am satisfied that the information contained in the Very Important Notice complied with the requirements of s.194 of the Act in ensuring that a person to whom such a document was given was made aware of the provisions of ss.195 and 196 of the Act.
The applicant stated that his signature was placed there by him simply at the request of the interviewer. The applicant’s signature acknowledged that the Very Important Notice had been read to him with the assistance of an interpreter and that he understood the contents of the Very Important Notice. However, the applicant claimed that the Very Important Notice was not read. The applicant claimed that he had not been provided with a copy of the contents of the Very Important Notice and that the contents of the Very Important Notice had not been explained to him.
Mr Farquhar deposed that he witnessed the applicant’s signature on the Very Important Notice following the affixing to that document by the applicant of his signature. It is apparent from Exhibit 2R that Mr Farquhar has ticked the box that says, “I witnessed the above sign this notice to indicate that they have read it or had it read to them and understand its contents”.
In accordance with s.195(1) of the Act, the Very Important Notice notified the applicant that he must apply for a visa within two working days after the day on which s.194 of the Act was complied with, that being the time at which he was made aware of ss.195 and 196 of the Act in relation to his detention. The Very Important Notice notified the applicant that alternatively, if he wished to have an extension to apply for a visa, he must inform an officer of the Department in writing within those two working days of his intention to apply for a visa, and must then apply for a visa within the next five working days after those two working days.
In accordance with s.195(2) of the Act, a detainee who does not apply for a visa within the timeframe provided by s.195(1) of the Act may not apply for a visa, other than a bridging visa, after that time.
The applicant was cross-examined in relation to his assertion that he was not provided with the Very Important Notice at the interview with Mr Farquhar. The applicant acknowledged that the day after the interview with Mr Farquhar, he completed a request to the Department for a five-day extension of time in which to make an application for a substantive visa. The applicant further acknowledged that that application was written and signed by him with his full name, date of birth, and the date on which he made that request, being 29 April 2015.
The decision to detain the applicant was taken immediately following a “Compliance Client Interview” with Mr Farquhar. A copy of that interview was annexed to Mr Farquhar’s affidavit and disclosed that the interview was conducted with the assistance of an Arabic interpreter and the applicant’s migration agent.
The applicant declined to ask Mr Farquhar any questions because he (the applicant) was not a lawyer and did not understand legal process. In the circumstances, I said that I would consider the evidence of the applicant as reflecting those parts of Mr Farquhar’s affidavit with which the applicant disagreed. The respondent’s solicitor said that she would not make any submission that may have been available arising from the failure by the applicant to put those matters to Mr Farquhar in cross-examination.
The applicant’s evidence under cross-examination as to whether or not he was provided with a copy of the Very Important document was unsatisfactory. The applicant said often that he did not remember, was evasive, and non-responsive in his answers. Ultimately, he conceded that he does not remember matters properly. In the circumstances, where the evidence of the applicant departs from that of Mr Farquhar or the documentary evidence, I prefer the evidence of Mr Farquhar and the evidence disclosed in the documents.
In the circumstances, having regard to:
a)the affidavit evidence of Mr Farquhar that the Very Important Notice was given to the applicant at the interview,
b)Annexure C to Mr Farquhar’s affidavit, being an email acknowledging that the documents provided to the applicant were left by the applicant following the interview and that those documents had been scanned and sent to the applicant at Villawood Immigration Detention Centre,
c)the evidence of the applicant that he left documents at the place of interview,
d)the evidence in Exhibit 2R showing that the documents left by the applicant at the interview and forwarded to Villawood Immigration Detention Centre included a full copy of the Very Important Notice in Arabic that was signed by the applicant,
e)the application made by the applicant the following day in accordance with s.195(1)(b) of the Act for an extension of time to apply for a substantive visa,
the Court accepts that the applicant had been made aware of the provisions of ss.195 and 196 of the Act as required by s.194 of the Act.
The Notification Letter provided by the respondent to the applicant informed the applicant that his application for a visa for medical treatment was made well in excess of the five-day period provided for in s.194(1)(b) of the Act, and was therefore an invalid application that could not be considered. The Notification Letter further informed the applicant that, by reason of s.195(2) of the Act, there was no error on the part of the respondent in not accepting that application for a visa and for concluding that the applicant was currently unlawful.
Conclusion
In the circumstances, there is no error in relation to the decision of the respondent as reflected in the Notification Letter.
Accordingly, the proceeding before this Court commenced by way of application, filed on 15 September 2015, should be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 October 2015
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