Kumar v Minister for Immigration

[2006] FMCA 1276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION [2006] FMCA 1276

MIGRATION – Interlocutory application seeking orders to restrain the Minister from taking any steps to remove the applicant from the Migration Zone until the disposal of the proceedings – interlocutory orders made – matter listed for final hearing.

Administrative Decision (Judicial Review) Act 1977 (Cth), s.8(1)
Commonwealth of Australia Constitution Act (Imp), s.75(v)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 476, 494B, 494C
Migration Regulations 1994 (Cth), regs.070.511(c)(i), 2.20A

Al-Kateb v Godwin & Ors [2004] HCA 37
Manoher v Minister for Immigration (1991) 24 ALD 405

Applicant: BINOD KUMAR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG2412 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 29 August 2006

Delivered at: Sydney

Delivered on: 1 September 2006

REPRESENTATION

Counsel for the Applicant: Mr S Prince

Solicitors for the Applicant: SBA Lawyers

Advocate for the Respondents: Ms E Warner-Knight

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Minister be restrained from taking any steps to remove the applicant from the Migration Zone until the disposal of these proceedings or further order.

2. The Minister be restrained from acting upon or giving effect to or proceeding further upon the Minister’s Decision until disposal of these proceedings or until further order.

3. Set the matter down for final hearing on a date to be fixed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2412 of 2006

BINOD KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings were commenced under s.476 of the Migration Act 1958 (Cth) (“the Act”), s.75(v) of the Commonwealth of Australia Constitution Act (Imp) (“the Constitution”) and s.39B of the Judiciary Act 1903 (Cth). These proceedings relate to a decision of the respondent who notified the applicant on 15 August 2006 that she was satisfied that the applicant’s removal from Australia was reasonably practicable pursuant to Sch.1 reg.070.511(c)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). The respondent Minister for Immigration found that the applicant’s Bridging (Return Pending) (Subclass 070) visa (“RPBV”) was at an end and no longer valid (“the Minister’s Decision”). An application is also made pursuant to s.8(i) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) for review of the decision.

2. The applicant seeks relief in the form of the following orders:

   a)A declaration that the Minister’s Decision was made in excess of jurisdiction, and null and void.

   b)That a writ of certiorari be directed to the Minister to quash the Minister’s Decision.

   c)That a writ of prohibition be directed to the Minister prohibiting her from acting upon or giving effect to or proceeding further upon the Minister’s Decision.

3. Further, the applicant seeks the following interlocutory orders:

   a)The Minister be restrained from taking any steps to remove the applicant from the Migration Zone until the disposal of these proceedings or further order.

   b)The Minister be restrained from acting upon or giving effect to or proceeding further upon the Minister’s Decision until disposal of these proceedings or until further order.

4. For the purposes of this application, the applicant tendered and applied for the following affidavits of Binod Kumar to be admitted into evidence:

   a)

   Declared and affirmed on 28 August 2006 (“first affidavit of

   
   

   Mr Kumar”);

   b)Declared and affirmed on 29 August 2006 (“second affidavit of Mr Kumar”).

Background

1. The applicant arrived in Australia as a visitor in June 1998 using an Indian passport.  This passport was false and in the name of Biplab Saha.  On 21 July 1998, he lodged an application for a Protection (Class AZ) visa with the Department of Immigration.  On 14 August 1998, a delegate of the Minister refused to grant the applicant a protection visa.  On 5 April 2001, the Refugee Review Tribunal (“the Tribunal”) refused the applicant’s review application and affirmed the decision of the delegate not to grant a protection visa.

2. During the month of June 2003, the applicant was placed in Villawood Immigration Detention Centre, Sydney.  Shortly after the commencement of his detention the applicant was taken by Departmental officers to the Indian Consulate in Sydney seeking to obtain Indian travel documents for the applicant’s return to India.  During that interview the Indian Consulate took the view that the applicant was not in fact an Indian national.  This led to the applicant’s confession to the Department that he was not in fact an Indian national, but rather a national of Bangladesh.  The applicant admitted to a case officer of the Department that he had followed the advice of a migration agent and lied about his nationality.

3. Later in 2003, the applicant was taken to the Bangladesh Consulate by officers of the Department to ascertain if he could be granted Bangladesh travel papers.  The Consulate refused to do so because the applicant was unable to provide evidence of that nationality.

4. On 23 August 2004, the applicant sought review of the Tribunal’s decision by the Federal Court of Australia. This application was unsuccessful. On 6 September 2004, the applicant applied to the Minister seeking that she exercise her powers under s.417 of the Act. At that time he provided the Minister with a statutory declaration confirming that he was in fact an national of Bangladesh and not of India. On 12 October 2004, the applicant was asked by the Minister for further information in relation to his claim. The applicant responded to the Minister’s request on 18 October 2004, indicating that his former migration agent, Mr Humayun Kabir, had retained his false passport and that he therefore had no documentation in order to prove his nationality.

5. The applicant stated that he was born in 1971, the year of the Bangladesh Liberation War.  He further claimed that he was Hindu by birth, orphaned and subsequently cared for by a Muslim family. 

   
   

   He had never had a birth certificate and to his knowledge was never registered as a national of Bangladesh. He indicated that when he was taken by Department officers to the Bangladesh Consulate, he completed forms authorising the Consulate to trace his background, with no success. The Minister declined to exercise her discretion under s.417 and rejected the application.

6. On 27 July 2005, the applicant was invited by the Minister to apply for a RPBV, which was granted on 3 November 2005.(applicant’s second affidavit)

Granting of Bridging (Removal Pending) (Subclass 070) Visa

1. The applicant’s visa was granted pursuant to s.195A of the Act, which states:

   Minister may grant detainee visa (whether or not on application)

   Persons to whom section applies

   (1)  This section applies to a person who is in detention under section 189.

   Minister may grant visa

   (2)  If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

   (3)  In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

   Minister not under duty to consider whether to exercise power

   (4)  The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

   Minister to exercise power personally

   (5)  The power under subsection (2) may only be exercised by the Minister personally.

   Tabling of information relating to the granting of visas

   (6)  …

   (7)  …

   (8)  …

2. The class of visa that was issued in this case was a Bridging R (Class WR) visa as described in reg.2.20A of the Regulations:

   Applications for Bridging R (Class WR) visas

   (1) For subsection 46 (2) of the Act, a Bridging R (Class WR) visa is a prescribed class of visa.

   (2)   An application for a Bridging R (Class WR) visa is taken to have been validly made by a person if:

   (a) the person has been given an invitation in writing by the Minister, by one of the methods specified in section 494B of the Act, to apply for the visa; and

   (b)    the person indicates in writing to Immigration, not later than 7 days after the person is taken to have received that invitation, that he or she accepts the invitation.

3. In this case there is no doubt or dispute that the applicant was given an invitation in writing by the Minister and had accepted that invitation within the prescribed time. This process is set out in ss.494B and 494C of the Act.

4. Schedule 1 cl.1307 of the Regulations identifies the RPBV as a subclass of the Bridging R (Class WR) visa:

   1307.       Bridging R (Class WR)

   (1)   Application must be taken to have been made in accordance with subregulation 2.20A (2).

   (2)   Visa application charge:   Nil.

   (3)   Subclasses:

   070    (Bridging (Removal Pending))

5. Schedule 2 of the Regulations sets out the details of the RPBV:

   070.1     Interpretation

   070.111      In this Part:

   eligible non‑citizen has the meaning given in regulation 2.20.

   Note    See regulation 2.20A for how an application for a Bridging R (Class WR) visa is taken to have been validly made.

   070.2     Primary criteria

   Note    All applicants must satisfy the primary criteria.

   070.21       Criteria to be satisfied at time of application

   070.211      The applicant is an eligible non‑citizen referred to in subregulation 2.20 (12) who is taken to have made an application in accordance with subregulation 2.20A (2).

   070.22       Criteria to be satisfied at time of decision

   070.221      The applicant continues to satisfy the criterion set out in clause 070.211.

   070.222      The Minister is satisfied that, if the bridging visa is granted, the applicant will abide by the conditions to which the visa is subject.

   070.223      The applicant satisfies public interest criteria 4001 and 4002.

   070.3     Secondary criteria: Nil.

   Note    All applicants must satisfy the primary criteria.

   070.4     Circumstances applicable to grant

   070.411      The applicant must be in immigration detention when the visa is granted.

   070.5     When visa is in effect

   070.511      Bridging visa:

   (a)     coming into effect on grant; and

   (b)     permitting the holder to remain in Australia; and

   (c) ceasing at the time when the Minister gives a notice in writing to the holder, by one of the methods specified in section 494B of the Act, stating that:

   (i)   the Minister is satisfied that the holder's removal from Australia is reasonably practicable; or

   (ii)   the holder has breached a condition to which the visa is subject.

   070.6     Conditions

   070.611     Conditions 8303, 8401, 8506, 8513, 8514, 8541, 8542 and 8543 must be imposed.

   070.7     Way of giving evidence

   070.711      No evidence need be given.

   070.712      If evidence is given, to be given by a label affixed to a valid passport or an approved form.

The Applicant’s Claim for Relief

1. The applicant’s claim for relief is set out in the application filed in these proceedings.  I adopt paragraph 2 of that application for the purposes of this judgment:

   2.The Applicant seeks relief under s 476 of the Act, s 75 (v) of the Constitution, s 39B of the Judiciary Act 1903 (Cth) and s 8 (1) of the ADJR Act on the grounds that the Respondent:

   (a)  Erred in law in arriving at the Decision by an improper exercise of power conferred by the enactment in pursuance of which it was purported to be made:

   (i) failed to take relevant matters into account in the exercise of the power;

   Particulars

   A.    The applicant’s statutory declaration that he is not a citizen of India nor entitled to Indian citizenship;

   B.    The view expressed to the applicant in an interview with the Indian Consulate in 2003 that they were of the opinion he was not an Indian citizen;

   C.   The fact that the applicant has claimed to be a citizen of Bangladesh since 2003;

   D.   The fact that the applicant is not a citizen of India nor entitled to be a citizen of India;

   E.    The fact that the travel documents issued by the Republic of India in respect of the applicant must have been obtained by deception by persons other than the applicant;

   F.    The fact that the travel documents issued by the Republic of India were not issued at the request or with the consent of the applicant.

   (b)  Exceeded jurisdiction in arriving at the Decision in that:

   (i)   a breach of the rules of natural justice occurred in connection with the making of the decision;

   Particulars

   A.    The Respondent failed to advise the applicant prior to the Decision being made that she was contemplating the Decision or invite the Applicant to comment on that information;

   B.    The Respondent failed to advise the Applicant prior to the Decision that travel documents had been issued by the Republic of India in respect of the Applicant or invite the Applicant to comment on that information;

   C.   The Respondent failed to advise the Applicant prior to the Decision that she intended to rely upon the issue of travel documents by the Republic of India to make the Decision or invite the Applicant to comment on that information;

   D.   The Respondent failed to provide the Applicant prior to the Decision with the travel documents issued by the Republic of India upon which she relied to make the Decision or invite the Applicant to comment on that information;

   E.    The Respondent failed to provide the Applicant prior to the Decision with any applications made on behalf of the Applicant to the Republic of India seeking the issue of the travel documents or invite the Applicant to comment on that information.

   (c)  Exceeded jurisdiction in that the exercise of the power is so unreasonable that no reasonable person could have so exercised the power.

   Particulars

   (i)   The power was exercised on a false premise that the Republic of India had issued valid travel papers to a person whom the Respondent knew to not be an Indian citizen or a person entitled to Indian citizenship.

   (ii)  The power was exercised on a false premise that the Applicant is a citizen of the Republic of India or entitled to be a citizen of the Republic of India;

   (iii)   The power was exercised in circumstances where the Respondent or her officers had procured travel documents from the Republic of India in respect of the Applicant notwithstanding that they knew the Applicant to assert that he was not entitled to citizenship or to apply for citizenship of the Republic of India since 2003.

   (d)  For the purposes of s 6 (1) of the ADJR, the Respondent has engaged in the following conduct for the purposes of making the decision:

   (i)   a breach of the rules of natural justice has occurred;

   (ii)  the procedures that are required by law in respect of obtaining foreign travel documents have not been observed;

Submissions

1. Mr Prince, appearing for the applicant, submitted that cl.070.511(c) of the Regulations indicates that a Bridging R (WR) visa ceases when the Minister gives a notice in writing to the visa holder by one of the methods prescribed in s.494B of the Act, stating that she is satisfied that the holder’s removal from Australia is reasonably practicable. The Act requires the Minister to, at some point in time, make such a determination – that is, whether she is or is not satisfied that the person is a person who can reasonably be removed from Australia. The decision by the Minister is not a decision to revoke, terminate or cancel a visa. Nevertheless, it has that effect. The decision has significant and dramatic effect on the rights of the visa holder. It is submitted that it would be expected, unless provided to the contrary, that when such a decision is being made the applicant will be accorded procedural fairness in that decision-making process.

2. Mr Prince acknowledged that the Minister adopted a consistent approach in the letter addressed to the applicant indicating that travel documents had since been issued by the Republic of India enabling the applicant to depart from Australia to India; and that the Minister was satisfied that the removal of the applicant from Australia was reasonably practicable. The written notice was issued pursuant to Sch.1 cl.070.511(c)(i) of the Regulations with effect of a notice that the RPBV would cease at the end of the day when the applicant was taken to have received that notice. The attached Ministerial decision indicated that the Minister had complied with the Regulations.(annexure G, applicant’s second affidavit)

3. Mr Prince then directed the Court’s attention to the evidence provided by the applicant in support of his claim of Bangladeshi nationality which had been clearly drawn to the Minister’s attention in the following correspondence:

   a)Annexure A, letter to the Minister dated 6 September 2004, which indicated that the applicant brought the Department’s attention in 2003 to the fact that he was a Bangladesh national.  The Minister was thus put on notice.  He indicated that he was born a Hindu in Bangladesh, but does not know his date of birth nor he did he possess a birth certificate.  Both his parents were killed during the war in Bangladesh and he was subsequently raised by a Mr and Mrs Khan who were Muslims.

   b)Annexure B, statutory declaration of the applicant, where the applicant set out these details more thoroughly.

   c)Annexure C, letter from the Department addressed to the applicant seeking further information in respect of his s.417 application. In this correspondence there is a clear acknowledgement that the Minister received and understood that the applicant maintained that he was a national of Bangladesh. The Minister requested further information to substantiate the claim.

   d)Annexure D, Mr Kumar’s letter to the Department of Immigration in which he explained in more detail his nationality and the circumstances in which his migration agent retained the false passport and his inability to access that document due to the untimely death of the agent.  That letter also made reference to the applicant attending the Bangladesh Consulate in Homebush accompanied by his Department case officer.

   e)Annexure E, a letter from the Minister announcing changes to the Regulations thus creating the RPBV for persons held in immigration detention.

4. Mr Prince submitted that because of the complexity of the Act, the application was made under s.476, which confers jurisdiction on this Court according to s.75(v) of the Constitution. That is, the power to issue writs of certiorari, prohibition and injunction. The application also relies on s.39B of the Judiciary Act. There was also a reference to s.8(1) of the Administrative Decision (Judicial Review) Act as the Minister’s Decision was made under Sch.1 cl.070.511 of the Regulations. Mr Prince indicated that he raised the Administrative Decision (Judicial Review) Act to reserve his position so that the arguments in relation to it could be heard if a final hearing were to take place.

5. Mr Prince submitted that because of the way the RPBV visa works, there has not been any decision to cancel it and consequently there is no need to seek for it to be reinstated.  If the decision of the Minister were found to be tainted by jurisdictional error, then it is a null and void decision the visa continues on its own terms until another decision is made that the Minister is reasonably satisfied that the applicant can be removed from Australia.  Interlocutory orders are sought because of Mr Kumar’s concern that if he is removed to India and not entitled to reside in India, he is left in a vacuum with no right to remain nor return to Bangladesh.  I am advised that the papers which were issued by the Indian government reveal that they are valid until 3 September 2006. 
   It is unclear what the applicant’s status in India will be after that date or his arrival in India.  It is also submitted the applicant will possibly be exposed to persecution by the Indian authorities for entering the country, or depending upon what representations have been made to the Indian government to secure the travel papers, he may be implicated in some type of offence in India. 

1. Mr Prince submitted the consequences of Mr Kumar being sent to India could be dire, apart from preventing him from being able to conduct litigation from India and that the ultimate orders sought by that litigation would then be futile.  Mr Prince submitted that, at present, Mr Kumar does not have an income as he is presently on a Bridging Visa E until his scheduled removal from Australia.  The Court was advised that Mr Kumar was gainfully employed since November 2005 as a security guard with a large retail organisation.  He was advised by that organisation that he could have his job back if he were able to work.  Mr Prince submitted that on the balance of convenience the Court should grant orders restraining the respondent from acting upon, giving effect to or proceeding further upon the Minister’s Decision until the disposal of these proceedings or until further order.

2. Ms Warner-Knight, for the respondent, submitted that the applicant is not entitled to choose the destination he is removed to.  It was acknowledged from the evidence before the Court that the applicant arrived in Australia on an Indian passport, which he claims is false, that he made a protection visa application in a name that appeared in that passport, but that since 2003 he has claimed that he is not a citizen of India and is in fact a citizen of Bangladesh.  The respondent also accepts that the applicant put the Department on notice of that claim and it is also clear from the evidence provided by the applicant that the Department in turn put him on notice that he must provide the Department with proof of his Bangladeshi nationality.  The response of the applicant was to explain the reasons why he was unable to do so.  Ms Warner-Knight contended that the applicant was on notice and has been for a considerable length of time and that the issue of whether he is a national of Bangladesh or India was something that the Department wished to determine.  In the meantime, the applicant has been holder of a visa containing a provision of which he is aware.

Reasons

1. This is an urgent interlocutory application brought by the applicant, Mr Kumar (also known as Biplab Saha), seeking to restrain the Minister from taking any steps to remove him from the Migration Zone until disposal of these proceedings or further order.  I have briefly summarised above, under the heading ‘Background’, the circumstances under which the applicant arrived in Australia, his application for a protection visa, its subsequent refusal by the Minister and the following sequence of events leading to the current application before this Court.  There appears to be no dispute between the parties as to these agreed facts.

2. The applicant’s revised claim was that he was a Hindu orphan from Bangladesh.

3. I note the observations of His Honour Hayne J in Al-Kateb v Godwin & Ors [2004] HCA 37 at [228]. However, on the limited material placed before the Court it would be inappropriate at this stage to suggest that the applicant is a stateless person and there may be a number of explanations as to why the applicant is in a position which he claims may lead to an inference that he is stateless. No such claim has been placed before this Court and I only refer to this issue to demonstrate that there remain a number of matters to be resolved before any conclusion can be drawn.

4. On 3 November 2005, the applicant was granted a RPBV in accordance with the provisions of the Act and Regulations. I have set out the relevant provisions of both the Act and the Regulations in respect of this visa and there have been no issues raised to suggest that there is any dispute relating to the appropriateness or process adopted in granting of that visa.

5. I have briefly considered the appropriateness of granting interlocutory relief to the applicant in circumstances currently being requested.  I am guided by Manoher v Minister for Immigration (1991) 24 ALD 405 at 408 per Lee J where His Honour states:

   In order to do what is just or fair it may be necessary in some circumstances for the court to act in advance of the demonstration of a strong case or in advance of the demonstration of any balance of convenience, and the court will so act.

   The relevant authorities have been well reviewed by French J in Snow v DCT (1987) 12 ALD 257 ; 14 FCR 119 at 130–1. To the authorities mentioned therein may be added Stephenson v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 249; Aboriginal Development Commission v Ralkon Agriculture Co. Pty Ltd (1987) 14 ALD 119 ; 15 FCR 159; and Rizki v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 643.

6. I am satisfied that matters of sufficient substance have been raised by counsel for the applicant that need to be considered at a final hearing. 

   
   

   I am also satisfied that as far the balance of convenience is concerned, it weighs in favour of the applicant.  Mr Prince indicated to the Court that the RPBV contains provisions permitting the applicant to work and that his employer immediately before the withdrawal of the RPBV was willing to re-employ the applicant, permitting him to be self-sufficient while pursing the resolution of these proceedings.

7. The focus of the issue before this Court is on the process by which the Minister can bring the RPBV to an end by making a decision that she is satisfied that it is reasonably practicable for the applicant to be removed from Australia. The application is directed to the process by which the Minister comes to exercise her power under the Regulations. The issue that is raised is that when the Minister comes to a decision under the Regulations, it is a decision which needs to follow a particular process. The argument before me is that particular process in reaching that decision must follow natural justice principles and other factors which prescribed at common law and under the Administrative Decision (Judicial Review) Act. The question is whether the Minister is compelled to remove or cancel a person’s visa in circumstances where that person is to be removed to a country he is not entitled to remain in. The material before this Court (and to which no objection or dispute has been raised) is that the applicant is not a citizen of India and the Consulate of that country showed had no entitlement to be returned there.

8. The point of judicial review is to expose these reasoning processes to some form of rigour, rationality and fair process.  The point of this application is to seek review of the processes of the Minister in reaching her decision leading to the withdrawal of the RPBV. 

   
   

   The applicant is entitled to seek that review.

9. Schedule 1 cl.070.511 of the Regulations allows the RPBV to cease if either the Minister is satisfied that the removal is reasonably practicable or if the holder has breached a condition to which the visa is subject.

10. The Minister’s letter dated 15 August 2006 states:

    Accordingly, I hereby give you written notice pursuant to paragraph 070.511(c)(i) of the Migration Regulations 1994 that I am satisfied that your removal from Australia is reasonably practicable.

    Neither the Minister’s letter nor the Ministerial Decision attached to that letter makes any reference to cl.070.511(c)(ii) and does not indicate reliance on the clause. However, during oral submissions it was suggested that the applicant was aware since 2003 of the issue in respect of establishing his identity to the satisfaction of the Bangladesh Consulate and the Department as to the authenticity of his identity.

    
    

    It was suggested that the applicant was aware of this issue before the issue of his RPBV and the impact that obtaining or failing to obtain such documents would ultimately have on this visa.

11. I am not satisfied that these issues or arguments have been sufficiently developed and are unsupported by any evidence at the time that these submissions were made.  I raise no criticism of counsel raising these issues in the circumstances of the urgent application.  However, I believe it does establish that there are issues to be canvassed on this specific point and on a range of collateral issues that will have direct bearing on the outcome of this matter.  I believe this can only be done by providing the parties with an opportunity to properly research, prepare submissions and ventilate these issues at a final hearing.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  1 September 2006