Lewai v Davidson

[2001] FCA 1848

FEDERAL COURT OF AUSTRALIA

Lewai v Davidson [2001] FCA 1848

TIMOCI LEWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1214 OF 2001

TIMOCI LEWAI v GRANT DAVIDSON & ANOR

N 1301 OF 2001

EMMETT J
12 SEPTEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1214 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

N 1301 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

GRANT DAVIDSON
FIRST RESPONDENT

WENDY GREEN
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

12 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The applicant file a notice of appeal from the orders of Hely J made earlier today in proceedings N 1214 of 2001 and N 1301 of 2001 together with notice of motion seeking orders restraining the removal of the applicant from Australia.

1. The application referred to in Order 1 be dismissed with costs.

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	N 1214 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

N 1301 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

GRANT DAVIDSON
FIRST RESPONDENT

WENDY GREEN
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	12 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a Fijian who entered Australia on 9 April 1994 on a visitor’s visa.  He has remained in Australia ever since.  In the intervening years he has made a number of applications for visas of various kinds and from time to time has been granted bridging visas for various periods.  He is presently in detention under the Migration Act 1958 (“the Act”).  On the last occasion on which he lodged an application for a substantive visa, the Migration Review Tribunal (“the Tribunal”) rejected that application because the application for review was lodged out of time.

2. The applicant was detained on 10 July 2001, when he became an unlawful non-citizen following the expiration of a bridging visa that had earlier been granted to him.  On 25 July 2001 the applicant applied for a Bridging E visa.  That application was refused by the Minister for Immigration and Multicultural Affairs (“the Minister”) on 27 July 2001.

3. On 8 August 2001 the Migration Review Tribunal affirmed the decision of the Minister’s delegate and on 17 August 2001 the applicant lodged with this Court an application for an order of review of the decision of the Tribunal.  The grounds of the application were stated as “refer to submission”. That is apparently intended to be a reference to a document that was lodged by the applicant with the Court on 17 August 2001. That document did not refer to any of the grounds of review referred to in s 476 of the Migration Act. No application has been made to amend the application although grounds that may fall within s 476(1) had been advanced in circumstances to which I shall refer shortly.

4. The proceeding came before the Court for directions on 30 August 2001 when the Minister, the respondent to the proceeding, indicated that there was a possibility that the applicant might be removed from Australia before substantive hearing of the proceeding, which was fixed for 22 November 2001.  Hely J gave directions on 6 September 2001 for hearing of an interlocutory application for an injunction restraining the Minister from removing the applicant from Australia pending a final hearing.

5. When the matter came on for hearing on 7 September 2001, counsel for applicant informed Hely J that the applicant sought to remain in Australia until a determination by the Tribunal of an application for review of a decision made by a delegate of the Minister to refuse protection visas to the applicant’s two children. The grounds on which interlocutory relief was sought included grounds that involved questions concerning the power of officers of the Department of Immigration and Multicultural Affairs (“the Department”) to remove the applicant from Australia pursuant to s 198 of the Migration Act.

6. On 11 September 2001, a fresh proceeding was commenced by the applicant against Grant Davidson and Wendy Green, officers of the Department, seeking orders prohibiting the respondents from removing the applicant from Australia under s 198 of the Migration Act. Earlier today Hely J published his reasons for refusing interlocutory relief in both proceedings. Without further argument from the applicant, his Honour then dismissed both of the proceedings on the basis that, having regard to the conclusions reached by his Honour in refusing interlocutory relief, there was no basis upon which his Honour would grant final relief.

7. The applicant has applied to me as duty Judge for interlocutory relief pending a proposed appeal from the orders of Hely J dismissing both proceedings.  No notice of appeal has yet been filed.  However, counsel for the applicant has outlined orally, in the course of the application made this afternoon, the grounds upon which it is said Hely J erred in dismissing both applications. 

8. There are two grounds upon which the applicant contends that Hely J erred in dismissing the application brought against Mr Davidson and Ms Green, under s 39B of the Judiciary Act 1903. There is a further ground upon which the applicant contends that his Honour erred in dismissing the application for an order of review of the decision of the Tribunal. I shall deal first with the grounds advanced in relation to proceeding N1301 of 2001 (the application for orders under s 39B of the Judiciary Act).

9. The grounds relied by the applicant turn on the effect of s 198 of the Act, pursuant to which the respondents seek to exercise what is said by them to be a duty to remove the applicant from Australia. Sections 198(5) and (6) relevantly provide as follows:

   (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 but did not do so.

   (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;

   (ii)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.”

10. Section 195 provides as follows:

    “(1)     A detainee may apply for a visa:

    (a)within 2 working days after the day in 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 visa within the time allowed by sub-section (1) may not apply for a visa other than a bridging visa or a protection visa after that time.”

    Section 194 provides that, as soon as reasonably practicable after an officer detains a person, the officer must ensure that the person is made aware of the provisions of ss 195 and 196.

11. The first ground relied on by the applicant concerns the proper construction of the expression “as soon as reasonably practicable” where that expression appears in ss 198(5) and (6). The applicant contends that some meaning must be given to the word “reasonably” and that meaning is given by having regard to the interests of an unlawful non-citizen who might be the subject of removal.  In the present circumstances, the applicant contends that regard must be had to the interests of the applicant’s wife and children in determining whether it is reasonably practicable for him to be removed.

12. The applicant contends that the power conferred by ss 198(5) and (6) cannot be exercised before a time that is reasonably practicable, having regard to the position of the applicant. Reliance is placed on the principle of statutory interpretation that where a statutory power affects the liberty of a person, and there is ambiguity in the construction of the statute, the statute should be construed in a manner that is favourable to the person. Though I do not doubt that proposition, the question is whether there is any ambiguity in the expression to which I have referred.

13. It is significant, in my view, that ss 198(5) and (6) are both directions to an “officer”.  Each requires that an officer remove an unlawful non citizen in certain circumstances.  I do not consider that the expression “as soon as reasonably practicable” can be construed as referring to the rights or interests of an unlawful non-citizen.  The expression is simply a qualification of the duty of an officer to remove an unlawful non-citizen.  Removal from Australia, under those provisions, is to be effected, by force of law, not as the result of the exercise of an administrative discretion.  I do not consider that it is even reasonably arguable that the expression in question must be construed in the way contended for by the applicant.  That is the conclusion reached by Hely J and I agree with him. 

14. The second ground involves a consideration of the effect of ss 198(5) and (6) together. First it is said that s 198(5) does not apply because the applicant, being a detainee, was entitled to, and applied for, a visa under s 195. Second, it is said that s 198(6) does not apply because it should be construed as referring to the making of a valid application for a substantive visa after detention.

15. Counsel for the applicant acknowledges that such a construction would result in a lacuna in the scheme of ss 198(5) and (6). The contention is that s 198(5) deals with the situation in which an applicant does not apply for a substantive visa or a bridging visa whereas s 198(6) deals only with the position of an unsuccessful applicant for a substantive visa. Thus, according to the scheme of construction advanced on behalf of the applicant, neither s 198(5) nor s 198(6), nor any other provision of s 198 deals with the position of a detainee who applies for a bridging visa after his detention but is unsuccessful in that application.

16. It may be that, if there is ambiguity in the words of s 198, that ambiguity should be resolved in favour of an applicant. I do not see any reason for confining s 198(6) in the way contended for by the applicant in the absence of any language or context that requires such a construction. I agree with the reasons expressed by Hely J in rejecting this contention on behalf of the applicant. I do not consider that the construction contended for is seriously arguable. It follows, in my view, that there is no seriously arguable question that would arise on an appeal from his Honour's dismissal of the proceeding against Mr Davidson and Ms Green.

17. The ground upon which the applicant wishes to contend that the Tribunal erred is that the Tribunal failed to take into account a relevant consideration in making its decision.  The relevant criterion that had to be satisfied, in determining whether or not to grant a bridging visa, was whether the decision maker for present purposes, the Migration Review Tribunal, was satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.  The applicant contends that, in determining whether or not an arrangement is acceptable, there must be taken into account the interests of the applicant’s children and the hardship they might suffer if the applicant is removed from Australia prior to the determination of their application for protection visas.

18. The first difficulty with such a contention is that it was not the subject of any application to this Court. The argument advanced on behalf of the applicant is that, where there was a failure to take into account a relevant consideration, that would constitute a ground of review under s 476(1)(b), (c) or (e) of the Migration Act. It is common ground that a decision of the Migration Review Tribunal was a judicially reviewable decision. The relevant subparagraphs of s 476 provide as follows:

    “476 An application may be made for a review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds …
     (b) that the person who purports to make the decision did not have jurisdiction to make the decision; 
    (c) that the decision was not authorised by this Act or the regulations; 
    …
    (e) that the decision involved an error of law….”

    In the Minister v Yusuf (2001) 180 ALR 1 the High Court considered the possible application of those provisions in this context. Reliance is placed on that decision by the applicant.

19. However, underlying the contention is the assertion that the Tribunal failed to take into account a relevant consideration.  Hely J concluded that, if the Tribunal was required to take into account the children’s applications before the Refugee Review Tribunal, then the Migration Review Tribunal did so.  The Tribunal referred to evidence that the applicant’s children had each made separate applications to the Refugee Review Tribunal and that those applications were yet to be decided.

20. The Tribunal also referred to the fact that, while the applicant produced evidence of a booking to depart Australia on 8 August 2001, he said that he had changed his mind and did not wish to depart until his children’s applications had been finalised.  Since no date had been set for hearing by the Refugee Review Tribunal, the applicant was unable to make any further firm plans for his departure.

21. The argument advanced on behalf of the applicant is that the requirement that the decision maker be satisfied that the applicant is making, or is the subject of, acceptable arrangements, requires a consideration of what is acceptable, having regard to the position of the applicant’s dependents and his wife and children.  The primary difficulty with the contention that the failure to take such matters into account is that the Tribunal was not asked to do so.  There may be a question as to whether “acceptable” in the phrase in question has any bearing on the position of dependents of an applicant, rather than whether the arrangements are satisfactory to the decision-maker.

22. Putting that question aside, even if the decision-maker is required to have regard to the position of the applicant’s dependents, the Tribunal was not, in this case, asked to do so.  One could not therefore conclude that it failed to take into account a relevant consideration.  In my view, there is no seriously arguable question raised on appeal from his Honour's dismissal of the original application for review of the Tribunal’s decision.

23. In the course of the hearing, counsel for the applicant indicated that the balance of convenience, assuming there were seriously arguable questions that could be raised on appeal, lay with the grant of an injunction restraining removal of the applicant.  It was said that the detriment to the applicant was that, upon his removal, he would lose workers compensation entitlements that he presently has.  It was said that those entitlements were conditional upon the production of regular medical certificates indicating that the applicant was incapable of working and that such medical certificates had to be issued by medical practitioners entitled to practice in Australia.

24. Counsel did not go so far as to say that there were no medical practitioners in Fiji who were capable of issuing such certificates.  Counsel asked for the opportunity of adducing evidence if the question were relevant.  However, having regard to the view that I have formed concerning the prospects of success on appeal, it is unnecessary to consider the balance of convenience.  It follows, in my view, that any application for interlocutory relief pending an appeal should be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             20 December 2001

Counsel for the Applicant:	Mr B Zipser
Counsel for the Respondent:	Mr P Roberts with Mr R J Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	12 September 2001
Date of Judgment:	12 September 2001