Loketi v Minister for Immigration and Multicultural &

[2004] FCA 434

FEDERAL COURT OF AUSTRALIA

Loketi v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCA 434

KATRINA IRENE LOKETI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 499 of 2004

LINDGREN J
7 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 499 OF 2004

BETWEEN:	KATRINA IRENE LOKETI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	7 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant have leave to be represented by Colin Girdler for the limited purpose of the application for urgent interlocutory relief.

2.The applicant have leave to file in Court originating application, notice of motion and supporting affidavit of the applicant sworn 6 April 2004.

3.The motion be returnable instanter.

4.The motion and the application, in so far as they seek interlocutory relief having the effect of restraining the respondent from removing the applicant from Australia, be dismissed.

5.The costs of the application for interlocutory relief be reserved.

6.The proceeding otherwise be stood over to 9.30 am Wednesday 14 April 2004 for directions.

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 499 OF 2004

BETWEEN:	KATRINA IRENE LOKETI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	7 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Late yesterday, 6 April 2004, Mr Colin Girdler, on behalf of the applicant (‘Ms Loketi’), applied to me as Duty Judge for an urgent injunction restraining the respondent Minister (‘the Minister’) from removing Ms Loketi from Australia.  Ms Loketi was (and is) in immigration detention at the Villawood Immigration Detention Centre.  The removal was proposed to take place at 3.00 pm this afternoon, that being the scheduled time of departure of the relevant flight.

2. Mr Girdler explained:

   ·    that he was admitted as a Barrister of the Supreme Court of New South Wales in 1981;

   ·    that he had been a non-practising barrister;

   ·    that subsequently, in 1986, at his own request, his name was removed from the roll of barristers and entered on the roll of solicitors; and

   ·    that he has never practised as a solicitor and does not have a current practising certificate.

   I granted Mr Girdler limited leave to represent Ms Loketi only for the purpose of the urgent application for interlocutory relief.  Mr Girdler handed up in Court a notice of motion and a supporting affidavit of Ms Loketi sworn yesterday, 6 April 2004.

3. Having heard argument yesterday afternoon, I stood the proceeding over to this morning at 9.15 am for delivery of judgment.  Over night I have read carefully the reasons for decision of the Migration Review Tribunal (‘the Tribunal’) for affirming, on 24 March 2004, a decision of a delegate of the Minister on 11 March 2004, not to issue to Ms Loketi a Bridging E (Class WE) subclass 050 visa.  The critical question before the Tribunal was whether Ms Loketi was making, or was the subject of, ‘acceptable arrangements to depart Australia’. 

4. The Tribunal was not satisfied that she was making, or was the subject of, such arrangements and gave detailed reasons for that view.

5. I will now summarise the Tribunal’s reasons and the background to the case.  The best and shortest way of doing so is for me to set out paragraphs 13 to 31 of the Tribunal’s reasons for decision:

   ‘13.     The Tribunal had before it the Tribunals [sic] case file N04/01308 and the Department’s case file CLF2004/014441. Evidence on these files can be summarised as follows.

   14.      The visa applicant last entered Australia on 18 October 1988 as a holder of a Subclass UA-V12 (Temporary Visitor). This visa was valid until 13 January 1989.

   15.      The visa applicant remained unlawfully in Australia after the cessation of the above visa on 13 January 1989.

   16.      On 4 May 1995, the visa applicant lodged an application for a Protection visa and was granted an associated Bridging C visa on the same day. The bridging visa was not subject to any conditions. This associated Bridging C visa ceased on 14 August 1995 and she was granted a further Bridging C visa on the same day. The Department refused the Protection visa application on 4 September 1995.  The associated Bridging C visa ceased on 23 October 1995.

   17.      On 20 October 1995, the visa applicant lodged an application for a Subclass 806 (Family) visa and was granted an associated Bridging C visa on the same day. The bridging visa was subject to condition 8101 (no work). The Department refused the visa application on 26 November 1997. The Migration Review Tribunal affirmed the Department’s decision on 24 November 1999. The associated Bridging C visa ceased on 29 December 1999.

   18. On 30 December 1999, the visa applicant made a request to the Minister pursuant to section 417 of the Act. On 20 June 2002, the Minister decided not to exercise his discretion in this matter. The visa applicant was notified of this decision on 5 July 2002.

   19.      While this request was being decided the visa applicant held a number of Bridging E visas from 30 December 1999 to 11 July 2002. The visa applicant remained in Australia unlawfully after her Bridging E visa ceased on 11 July 2002.

   20.      The visa applicant was located by Departmental Compliance officers on 5 March 2004, working in a nursing home in Sydney. The visa applicant was escorted to her place of residence, where she collected her valid Country A passport. The visa applicant was subsequently detained and transferred to the Villawood Immigration Detention Centre (VIDC).

   21.      During the post location interview on 8 March 2004, at the detention centre, the visa applicant is recorded to have stated the following:

   ·    She resides at an address in Sydney.

   ·    She has two sisters, whom she resides with.

   ·    She has never used an alias while in Australia.

   ·    She entered Australia on a tourist visa in October 1998 [sic – 1988], valid for 3 months.

   ·    She used her own passport to enter Australia, which is still valid.

   ·    Her passport is held by VIDC property section.

   ·    She does not have any outstanding matters in Australia.

   ·    She has worked as a nurse’s aide while in Australia.

   ·    She has never used an alias to obtain work.

   ·    She currently works for a nursing home, but cannot remember when she commenced.

   ·    She does not have permission to work.

   ·    She does not have any assets in Australia.

   ·    She did not depart Australia after her visa expired as she is bringing up her sister’s son and needed money.

   ·    She cannot depart Australia as she does not have anyone in Country A.

   ·    She will not depart Australia voluntarily; she intends on applying for a bridging visa.

   22.      On 9 March 2004 the Department received an application for a Bridging E visa via facsimile. It is noted that the visa applicant did not state that she met any of the threshold criteria on the application form. 

   23.      The Detention Review Officer did not sight this application until 10 March 2004, thus the application is deemed to have been lodged on this date.

   24.      A copy of the visa applicant’s Country A passport is on the Departmental file and a property receipt indicates that it is held at VIDC.

   25.      On 11 March 2004 the delegate refused this Bridging E visa application. The delegate was not satisfied that the visa applicant met any of the threshold criteria, thus failing to meet the requirements of subclause 050.212.

   26.      On 12 March 2004, the visa applicant lodged an application for review with this Tribunal. On the application form the visa applicant stated that the Department had made the decision without a full interview and obtaining information regarding a ticket.

   27.      A number of friends of the visa applicant have provided statutory declarations attesting the visa applicant’s good character.  Two of these friends, Mr and Mrs B have stated they will guarantee the visa applicant’s legal expenses in addition to providing a bond, though the details are yet to be discussed with the visa applicant.

   28.      On 22 March 2004, the visa applicant was sent a letter inviting her to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. Essentially this information was that the visa applicant did not appear to meet the primary criteria for the grant of a Bridging E visa; that she had been unlawful in Australia for periods totalling 8 years; she was found working, when she has not had permission to work since 20 October 1995 and that she had been recorded at interview to have stated that she will not depart Australia voluntarily.  The visa applicant did not provide comments on this information at the interview held before the hearing.

   29.      The Tribunal held a hearing on 23 March 2004 and the visa applicant gave oral evidence as did Ms L.  An accredited interpreter assisted the Tribunal. The visa applicant gave evidence to the following effect:

   ·    She has a booking to depart Australia but is not sure of the date of departure; she thinks it is sometime in the next week or so. She does not know if a ticket has been purchased. Ms L knows about the booking as she arranged it.

   ·    She has been caring for her adopted son (traditional adoption) and it would be very difficult to leave him.

   ·    Asks for time to be able to see her son and arrange for his care, as well as to finalise matters relating to her employment, leave and superannuation.

   ·    She is hoping to make an application in Australia for a visa to stay, based on her care for her adopted son.

   ·    If she is released from detention she will live with Ms L at address C. Ms L will provide accommodation, food and cover living expenses, but the visa applicant can also have access to long service pay. Ms L should also be able to make arrangements to pay detention costs.

   ·    The visa applicant undertook to abide by the conditions of the bridging visa.

   ·    Ms L confirmed that she was able to provide accommodation and living expenses for the visa applicant. She is in full time employment. She contacted the airline on 22 March 2004 to make the booking, but the ticket still has to be paid for. The departure date is 3 weeks from this coming Thursday.

   ·    The visa applicant has been looking after her son since he was born. The visa applicant has lived at her home all this time. Ms L was aware of the visa applicant’s immigration status. She confirmed that she and her sisters could arrange to pay detention costs and that she could lodge a security of $5,000. Mr B, who was the visa applicant’s representative, also confirmed that he would lodge a security of $5,000.

   30.      The visa applicant also provided submissions from Ms L and herself at the hearing; the Tribunal has taken account of these in the review.

   31.      The visa applicant’s representative Mr B asked to address the Tribunal at the hearing. The Tribunal considered the request, taking into account the statements that had been presented to the Tribunal and the circumstances of the case. The Tribunal was not satisfied that there were exceptional circumstances that warranted the representative being allowed to address the Tribunal or present arguments to the Tribunal.’

6. In the ‘Findings and Reasons’ section of the Tribunal’s reasons for decision, the Tribunal reviewed certain authorities relating to the test of whether a person has made or is the subject of satisfactory arrangements to depart Australia.  The Tribunal observed that there was no evidence that at the time of the application, a ticket for departure was held or even that a booking had been made. 

7. The Tribunal said it was not satisfied that at the time of application, Ms Loketi had taken reasonable action in relation to making a booking or purchasing a ticket.  Ms Loketi’s case before the Tribunal was that a person whom the Tribunal referred to as “Ms L”, acting on her behalf, had contacted the airline on 22 March 2004, the day immediately preceding the hearing before the Tribunal, to make a booking.  The Tribunal stated:

   ‘The Tribunal has considered the visa applicant’s intentions. The visa applicant was very uncertain about the proposed date of her departure from Australia. She also told the Tribunal that it would be very difficult to leave the boy she was caring for under traditional adoption arrangements. The department had also recorded at the post location interview that she stated she could not leave Australia because she had no-one in country A. The visa applicant also indicated in her statement, and to the Tribunal orally, that she was hoping to make an application in Australia for a visa to stay in Australia, based on the care she was providing her traditionally adopted son. The Tribunal notes that this boy is Ms L’s biological son. The visa applicant also told the Tribunal that she wanted to make arrangements for the care of her adopted son before leaving. The Tribunal has taken this into account, but finds that the evidence more strongly indicates that the visa applicant does not wish to depart and is hoping to apply to stay in Australia. Having regard to the evidence before it the Tribunal is not satisfied that the visa applicant genuinely intends to depart Australia.’

8. According to the Tribunal’s reasons, the evidence of Ms L was that the departure date was three weeks from Thursday 25 March 2004, that is 15 April 2004. 

9. What is important is that the Tribunal saw that Ms Loketi truly wished to remain in Australia and the Tribunal was not at all satisfied that satisfactory arrangements were in hand for her departure.

10. The Tribunal referred to the facts that:

    ·    Ms Loketi was very uncertain about the proposed date of her intended departure;

    ·    she said it would be difficult to leave the boy she was caring for under traditional adoption arrangements;

    ·    she said in her post-location interview that she could not leave Australia because she had no one in the country of destination;  and

    ·    she said that she was hoping to make an application for a visa to stay in Australia based on the care she was providing to her traditionally adopted son.

11. Paragraph 42 of the Tribunal’s reasons for decision was as follows:

    ‘Given the findings above regarding the visa applicant’s intentions and the steps taken in regard to a [sic] booking and purchasing a ticket, … the Tribunal is not satisfied that at the time of application or at the time of decision the visa applicant had made or was the subject of any acceptable arrangements to depart.  The Tribunal is not satisfied that the visa applicant met subclause 050.212(2) at the time of application or decision.’

    Later, the Tribunal said it was satisfied that Ms Loketi was prevented by the effects of s 48 of the Migration Act 1958 (‘the Act’) from making a further application for a substantive visa without leave to do so, and that there was no suggestion that leave had been obtained or applied for.

12. I proceed on the assumption, without deciding, that the Court has jurisdiction to grant an interlocutory injunction of the kind sought.  The Court would only do so, however, if an arguable case of jurisdictional error on the part of the Tribunal was shown.  The only material before me which could be suggested to come remotely near establishing a jurisdictional error is found in paragraph 7 of Ms Loketi’s affidavit sworn 6 April 2004.  The whole of paragraph 7 is as follows:

    ‘Subject to such later advice as I may professionally obtain the basis of my Appeal of the MRT decision includes:

    (i)MRT Member Derewlany did not take any cognisance of nor thus appreciate my written submission to the Tribunal that the DIMIA procedure from incarceration to the time of the Tribunal hearing was flawed

    (ii) (ii)     At various times during that Hearing the Member was in error in repeatedly refusing to allow me or my Amici Curiae to tender other written submissions and to make oral submissions especially relating to my difficulties in having a third party procure my ticket of departure whilst my passport was impounded.  I seek Leave to later refer to a transcript of such Hearing.’

    In relation to subpar 7(i), I have read carefully the written submission, a copy of which was annexure D to Ms Loketi’s affidavit, that is, the submission which was handed up at the Tribunal hearing.  It cannot be said that because the Tribunal’s reasons for decision do not refer to every single aspect of that written submission, the submission was not taken into account.

13. The more substantial point is subpar 7(ii).  The problem here also, however, is that there has not been handed up to me any written submission which it is said that the Tribunal refused to take into account, and apart from the content of subpar 7(ii) itself, there is no evidence of the nature of the oral submission which was put.

14. The essence of the Tribunal’s reasons for decision is that it was not satisfied that genuine attempts were in hand for Ms Loketi to depart Australia.  The Tribunal was of that view because it was not satisfied that Ms Loketi intended to depart Australia at all; I have referred earlier to indications in the evidence to that effect which the Tribunal mentioned in its reasons for decision.

15. I appreciate that Ms Loketi would prefer to make her own arrangements to leave Australia but I cannot see any jurisdictional error in the reasons of the Tribunal and do not think that an arguable case has been made that there is such an error. 

16. When the matter was listed for judgment this morning, Mr Peter James, solicitor, appeared for Ms Loketi for the purpose of taking judgment and also for the purpose of filing an originating application on her behalf.  I had intended to make an order that the notice of motion handed up yesterday by Mr Girdler be treated as the application by which the proceeding was commenced, and that compliance with the Federal Court Rules be, to the extent necessary, dispensed with.  The better course now seems to be to allow the application handed up this morning by Mr James to be filed as the originating process and also to grant leave for the filing in Court of the notice of motion and Ms Loketi’s affidavit which were handed up yesterday.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  16 April 2004

Solicitor for the Applicant:	Mr C Girdler, a non-practicing solicitor, with leave, only for purpose of application for urgent interlocutory application, then Mr Peter James.
Solicitor for the Respondent:	Ms D Watson, Australian Government Solicitor’s office
Date of Hearing:	6 April 2004
Date of Judgment:	7 April 2004