Lee v Minister for Immigration
[2008] FMCA 1734
•9 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1734 |
| MIGRATION – Detention – interim application for release from detention – habeas corpus – applicant detained for the purpose of deportation – detention of applicant not affected by jurisdictional error – s.196(3) Migration Act 1958 applies – application refused. |
| Migration Act 1958, ss.5, 13, 14, 116, 189, 196, 198, 474 |
| Beyazkilinc v Manager, Baxter Immigration Reception Processing Centre (2006) 155 FCR 465 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Al-Kateb v Godwin (2004) 219 CLR 562 Minister for Immigration & Multicultural & Indigenous Affairs v Cisinski [2004] FCAFC 302 |
| Applicant: | HYUK KYU LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2360 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 December 2008 |
| Date of Last Submission: | 9 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application in a case filed on 2 December 2008 be refused.
The applicant pay the first respondent’s costs of the application in a case fixed in the amount of $1,500.
The costs ordered in order 2 are not payable earlier than the date when final judgment is delivered on the substantive application in these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2360 of 2008
| HYUK KYU LEE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has resided in Australia since 1996, partly pursuant to a series of student visas and bridging visas and partly as an illegal non-citizen. He no longer has a substantive visa and his most recent applications for bridging visas have been unsuccessful.
Following the cancellation of the applicant’s most recent bridging visa on 24 June 2008, he was taken into detention at the Villawood Immigration Detention Centre (“Villawood”). After having been taken into detention, the applicant made a further application for a bridging visa on 2 July 2008, which was refused by a delegate of the first respondent (“Minister”). The applicant’s applications to the Migration Review Tribunal (“Tribunal”) for review of those departmental decisions cancelling his bridging visa and refusing to grant another one were unsuccessful and it appears that he has applied to this Court for judicial review of those two Tribunal decisions. That application has been listed for hearing on 4 February 2009.
On 2 December 2008 the applicant filed an application in a case seeking his release from immigration detention. He wishes to be released in order that he can better prepare his case for the hearing in two months’ time and because of the treatment he says he is suffering in Villawood. These reasons deal with that application.
Background facts
The circumstances surrounding the applicant’s detention may be found in the decision records of the Tribunal which reviewed the 24 June 2008 decision to cancel his last bridging visa and the Tribunal which reviewed the decision to refuse his bridging visa application made on 2 July 2008. Those circumstances may be summarised as follows:
a)the applicant’s most recent substantive visa expired on 15 March 2000. Since then he has held several bridging visas and for several periods he was illegally in Australia as, during those periods, he had no visa at all;
b)on 23 June 2008 the applicant was granted a bridging E (class WE) subclass 050 visa valid until 24 June 2008, subject to the following conditions, amongst others:
i)8510 (present valid passport); and
ii)8511 (present valid ticket);
c)on 24 June 2008 the applicant presented to the compliance counter at the Minister’s Department without a valid passport and without a valid ticket;
d)the applicant received a form 1099 “Notice of intention to consider cancellation/notification of decision” on 24 June 2008, which he refused to sign;
e)the applicant was then detained pursuant to s.189 of the Migration Act 1958 (“Act”) and removed to Villawood;
f)on 27 June 2008 the applicant applied to the Tribunal for a review of the 24 June 2008 decision but was unsuccessful because it had been filed with the Tribunal out of time. The Tribunal signed its decision on 8 July 2008;
g)in the meantime, on 2 July 2008, the applicant had applied once more to the Minister’s Department for a bridging E subclass 050 visa. This further application was refused by the Minister’s delegate on 11 July 2008;
h)the applicant then applied to the Tribunal for a review of that decision. On 22 July 2008 the Tribunal affirmed the delegate’s decision not to grant the bridging visa; and
i)as already noted, it appears that the applicant is seeking judicial review of both of those Tribunal decisions.
Consideration
The applicant’s subclass 050 visa was cancelled pursuant to s.116(1)(b) of the Act which provides:
Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa; …
As already noted, the applicant had failed to comply with conditions 8510 and 8511.
The applicant was detained pursuant to s.189 of the Act, which relevantly provides:
189 Detention of unlawful non-citizens
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.
An “unlawful non-citizen” is defined in s.14 of the Act as a non-citizen in the migration zone who is not a “lawful citizen”. A “lawful
non-citizen” is defined in s.13 as a non-citizen in the migration zone who holds a visa that is in effect. A “non-citizen” is defined by s.5 to be a person who is not an Australian citizen. At para.41 of its decision the second Tribunal found that the applicant was an unlawful non-citizen.
Section 196 of the Act concerns the duration of detention and sub-s.(1) provides that:
(1)An unlawful non‑citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
Section 196(3) is also worth noting:
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention (otherwise than for removal or deportation) unless the non‑citizen has been granted a visa.
Section 198(6) provides:
(6)An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is a detainee; and
(b)the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and
(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
There is no evidence that the applicant has made a further application for a substantive visa and indeed the evidence contained in the bundle of relevant documents, which is exhibit 1, indicates to the contrary.
There are two possible approaches to the decision to be made in this case and both result in the refusal of the application in a case. The first is the more straightforward of the two. Simply put, because he is an unlawful non-citizen who has not been granted a visa, s.196 requires that the applicant be kept in detention and s.196(3) prevents the Court from releasing him. As the Minister submitted, the substantive application before the Court is that the applicant be granted a visa; his claim is not that he has one.
The second approach requires consideration of the nature of the detention itself. The fact that the matter currently before the Court seeks interim relief does not preclude a consideration of whether an order in the nature of habeas corpus would be appropriate on an interlocutory basis. However, as I have said, that requires consideration of the nature of the detention.
The continued detention of the applicant for the purposes of removal from Australia falls within s.474(3)(g) of the Act. Relevantly, s.474 provides:
Decisions under Act are final
(1) A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article;
(g)doing or refusing to do any other act or thing;
In the circumstances the continued detention of the applicant is thus a privative clause decision over which this court has jurisdiction: Beyazkilinc v Manager, Baxter Immigration Reception Processing Centre (2006) 155 FCR 465. A privative clause decision can only be set aside in circumstances of jurisdictional error: s.474(1) of the Act and Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476. On this approach to the matter the Court must therefore determine whether the applicant’s continued detention amounts to conduct affected by jurisdictional error and is thus subject to a finding that it is unlawful, which would ground the issue of a writ of habeas corpus, notwithstanding s.196.
In Al-Kateb v Godwin (2004) 219 CLR 562 it was held that as long as the purpose of a person’s detention is for the removal from Australia, it is authorised by the Act and that such detention pursuant to ss.189, 196 and 198 of the Act does not contravene Chapter III of the Constitution even if the removal of the non-citizen from Australia is not reasonably practicable in the foreseeable future. As Hayne J said:
… unless it has been practicable to remove the non-citizen it cannot be said that the time for performance of the duty imposed by s 198 has arrived. All this being so, it cannot be said that the purpose of detention (the purpose of removal) is shown to be spent by showing that efforts made to achieve removal have not so far been successful. And even if, as in this case, it is found that "there is no real likelihood or prospect of [the non-citizen's] removal in the reasonably foreseeable future", that does not mean that continued detention is not for the purpose of subsequent removal. (at 640 [231])
Further, as was observed by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Cisinski [2004] FCAFC 302 at [66], even if it is found that there is no real likelihood of removal in the reasonably foreseeable future, it does not follow that continued detention is not for the purpose of deportation. Consequently, as long as the detention of an unlawful non-citizen is for the purpose of deportation as soon as reasonably practicable, it is not affected by jurisdictional error.
Conclusion
Here it is apparent that the applicant has been detained for the purposes of deportation. Indeed, the statute requires it. It was pointed out by the Minister in submissions that this was the purpose of the detention and it was further submitted that attempts are being made to remove the applicant from Australia. The exercise of the power of detention is, in my view, not affected by jurisdictional error because of the absence of the necessary jurisdictional fact, namely the purpose of the detention being deportation within the reasonably foreseeable future.
For these reasons, I do not conclude that it is appropriate or possible for the Court to make the order sought by the applicant and the application in a case will be refused.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 21 January 2009