Manoher, P.L. (aka Mano) v Minister for Immigration, Local Government & Ethnic Affairs
[1991] FCA 279
•10 MAY 1991
Re: PETER LAWRENCE MANOHER (also known as PETER LAWRENCE MANO)
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G35 of 1991
FED No. 279
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)
CATCHWORDS
Administrative Law - migration law - detention pending deportation - application seeking suspension of the decision to detain - principles governing the exercise of the discretion under para.15(1)(a) of the Administrative Decisions (Judicial Review) Act 1977.
Administrative Decisions (Judicial Review) Act 1977 ss.5, 11, 15
Federal Court of Australia Act 1976 s.23
Federal Court Rules O.54A sub-r.3(2)
Judiciary Act 1903 s.39B
Migration Act 1958 ss.17, 34, 89, 176; sub-ss.4(1), 17(5), 34(2), 34(3),
34(4), 89(3), 89(4); paras.34(1)(a), 34(2)(a)
Migration Amendment Act (No. 2) 1988 s.7
Migration Regulations 1989 regs.2, 34A, 98, 111, 112, 119C; sub-regs.42(1), 22(1)(b), 111(2)(a), 111(2)(a)(ii)
Aboriginal Development Commission v. Ralkon Agriculture Co. Pty. Ltd. (1987) 15 FCR 159
Akers v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 98 ALR 261
Elmi v. Minister for Immigration and Ethnic Affairs (1988) 17 ALD 4 71
Park Oh Ho v. Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517
Rizki v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 643
Snow v. Deputy Commissioner of Taxation (1987) 14 FCR 119
Srokowski v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 15 ALD 775
Stephenson v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 249
Watsana Singthong v. Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486
HEARING
PERTH
#DATE 10:5:1991
Counsel for the Applicant: Mr P.A. Tottle and Mr D.E. Sigler
Solicitors for the Applicant: Robinson Cox
Counsel for the Respondent: Ms J.M. Adamson
Solicitors for the Respondent: Australian Government Solicitor
ORDER
Until further order the decision of the respondent's delegate to take the applicant into custody be suspended on the condition that the applicant sign and abide by the terms of the undertaking filed in Court on 10 May 1991 as amended.
The respondent to have liberty to apply to vary the order of that notice in the event of a breach of the conditions.
The respondent to pay the applicant's costs of the application in any event.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant has made an application to the Court pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") seeking a review of the decision of the respondent's delegate made on 21 September 1990 that the applicant be refused a "border entry visa" pursuant to the Migration Act 1958 ("the Act") and the Migration Regulations 1989 ("the Regulations").
Although the issue is not clearly raised in the body of the application in its present form, it also appears that the applicant seeks relief pursuant to s.39B of the Judiciary Act 1903 in respect of the same subject matter. (See O.54A sub-r.3(2) of the Federal Court Rules.)
Written advice of the decision and the reasons therefor were furnished to the applicant on or about 26 September 1990. The application was filed on 16 April 1991 and the applicant has sought an order from the Court allowing further time than that provided by s.11 of the ADJR Act for the filing of an application. That application will be heard at a later date.
The interlocutory matter presently before the Court is an application for an order under s.15 of the ADJR Act suspending the operation of another decision made under the Act on 14 September 1990 by an authorized officer to take the applicant into custody pursuant to sub-s.89(3) of the Act and to hold him in custody thereafter.
In the course of the hearing of this interlocutory application the applicant was given leave to amend his substantive application to include an application to review the decision to take and hold the applicant in custody. Although the decision to take the applicant into custody preceded the decision to refuse a visa by 7 days, each decision is part of the same matter.
Pursuant to sub-s.89(3) of the Act, an authorized officer is empowered to direct that a person "who has sought and been refused an entry permit" be taken into custody and kept in such custody "until such time as the person is removed from Australia in accordance with sub-subs.(4) or until such earlier time as an authorized officer directs".
Pursuant to sub-s.89(4), an authorized officer may, at any time within 48 hours after the person is taken into custody, give notice in writing to the operator of the aircraft which brought that person to Australia to remove the person from Australia.
A notice was not given to the relevant airline operator within the prescribed time but was purportedly given 7 days after the applicant had been taken into custody. An authorized officer has not directed that the applicant be released from custody as provided for by sub-s.89(3). The applicant has been in custody from 14 September 1990 to the present day and the latter part of that period has been spent in the Remand Centre of a State prison.
The respondent opposes the order sought by the applicant.
A short statement of the relevant facts is as follows. The applicant is a Malaysian citizen. Since 28 June 1976 the applicant has had "resident status" in Australia in that whilst present in Australia he has held an entry permit not subject to any condition as to period of residence in Australia. The applicant has deposed that he has lived and worked in Perth for 12 years as a "permanent resident".
On 17 November 1976 the applicant was issued with an authority or return endorsement which entitled him to return to Australia at any time within 3 years of the date of last departure. The applicant left Australia on 29 May 1988. He returned on 14 September 1990 without his Malaysian passport. It appears that he travelled on an Australian passport in the name "R.M. Gunn". Upon arrival at Perth airport the applicant sought permission to enter Australia.
Pursuant to several provisions of the Act the holders of certain visas may enter Australia without the further grant of an entry permit. Section 17 of the Act states, inter alia, that the holder of an "entry visa" may enter Australia after disembarkation at a proclaimed airport. Pursuant to sub-s.17(5) an "entry visa" is, inter alia, a valid visa granted after the commencement of s.7 of the Migration Amendment Act (No. 2) 1988 but before the commencement of s.17 or a valid visa granted after the commencement of s.17.
And in sub-s.4(1), a "valid entry permit" means, inter alia, an entry permit granted under the Act but does not include a visa or a similar notation or a form of provisional authority to enter Australia issued before 1 November 1979 on behalf of the Commonwealth.
It seems that neither provision applied to the applicant.
Section 34 of the Act provides for the grant of entry permits as follows:
"34(1) This section applies where, and only where:
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) any fee payable in respect of the application is paid."
In sub-s.4(1) of the Act, an "entry permit" is defined as "permission to enter or remain in Australia". Sub-regulation 22(1)(b) states that an application for an entry permit is in accordance with the Regulations:
"where the applicant applies before entering Australia - if the applicant presents to the Minister for examination a valid visa with respect to the applicant's travel to Australia."
In sub-s.4(1) of the Act a "visa" is defined as "permission to travel to Australia".
A "valid visa" is defined in sub-s.4(1) of the Act as a visa that:
"(a) was granted under this Act, whether before or after the commencement of section 4 of the Migration Legislation Amendment Act 1989;
(b) has not been cancelled under this Act; and
(c) has not expired, or otherwise stopped being in force, under this Act or the regulations".
Sub-sections 34(2), (3) and (4) of the Act then provide:
"(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."
Under sub-reg.42(1) a person is entitled to be granted an entry permit if the person satisfies the prescribed criteria in relation to that entry permit.
Regulation 34A requires an applicant for an entry permit to satisfy the prescribed criteria in relation to the relevant class of entry permit.
Pursuant to reg.119C of the Regulations the prescribed criteria in relation to a "resident return E entry permit" are that:
"(a) the applicant is the holder of a return endorsement or a return visa, Class E;
(b) the Minister is satisfied that it would not be inconsistent with the interests of Australia to grant the entry permit."
A "return endorsement" is defined in reg. 2 as:
"a return endorsement under the Act as in force immediately before 18 December 1987."
Having regard to the definition of "valid entry permit" in sub-s.4(1), it would seem that reg.119C is likely to be intended to refer to a return endorsement issued before 1 November 1979. In addition, one of the criteria for the issue of a return visa, Class E, specified in reg.98, being the return visa to which reg. 119C refers, is that the applicant is the holder of a valid return endorsement or document or notation issued on behalf of the Commonwealth before 1 November 1979 in respect of the return of persons to Australia.
The respondent indicated in counsel's submissions that it would be argued that the applicant was not the "holder" of a return endorsement in that the applicant did not have the endorsement "on his person" when he sought permission to enter Australia. In any event it appears that it was considered that pursuant to paras.34(1)(a) and 34(2)(a) of the Act and sub-reg. 22(1)(b) of the Regulations an application for an entry permit could not be considered unless another visa was granted and, therefore, the applicant was considered to be an applicant for a border visa under reg. 111 of the Regulations rather than an applicant for a return E entry permit under reg. 119C.
The grant of a border visa under reg. 111 does not ground the grant of a resident return E entry permit under reg. 119C and the only entry permit available to the holder of such a visa would seem to be a border entry permit under reg. 112 being a permit which may not remain in effect for more than 30 days.
Pursuant to sub-reg. 111(2)(a) the prescribed criteria in relation to the issue of a border visa were that the Minister be satisfied that:
(i) There are compelling reasons for granting the visa;
(ii) The person's entry into Australia would not be contrary to Australia's interests; and
(iii) The person has a good reason for not holding a visa.
Under s.176 of the Act, the Minister may by writing signed by him, delegate to a person any of the Minister's powers under the Act.
The delegate who considered the applicant's application stated that he did not consider the presence in Australia of the applicant's fiancee, seven months' pregnant with his child, to be a compelling reason for granting a border visa. He further determined that according to information which alleged that the applicant was involved in immigration rackets in Australia and abroad and that he had travelled on a "substituted photo" Australian passport "belonging to R.M. Gunn", it was not considered that the applicant's entry would be "in Australia's interest". The actual requirement under sub-reg.111(2)(a)(ii) was that the Minister be satisfied that the entry would not be contrary to Australia's interests.
It was further determined that the applicant did not have a good reason for not holding a visa, the foundation for that opinion being expressed as follows:
"The reason Manoher does not possess a Malaysian passport is because it is held by the Malaysian police. He escaped legal custody, absconded from Malaysia and entered Thailand illegally. He is wanted by the Malaysian authorities."
It is one of the grounds of challenge to the decision to refuse a visa that the applicant was denied natural justice in that he was not given an opportunity to respond to the material prejudicial to him on which the decision-maker had relied for making his decision.
The power to be exercised under s.15 of the ADJR Act is an unqualified statutory power provided as an ancillary measure to the conduct of a judicial review of an administrative decision affecting a citizen.
I hesitate to apply limitations to the exercise of that power by transposing, as implied terms of the statutory provision, rules that have been applied by the courts in determining the grant of interlocutory relief in suits between private litigants, namely, whether a prima facie case or a serious question to be tried has been demonstrated and a balance of convenience shown to rest in the applicant's favour.
In many cases, not only will such tests not be appropriate but positively inappropriate. It is unnecessary to spell out such examples, but there is a much higher priority to be given to matters of justice and fairness in circumstances involving the relationship between citizen and state, and decisions which affect a person's liberty will always require quite different considerations.
If it is necessary to apply some description to the test to be applied by the Court under s.15 it is what is just and fair in the circumstances having regard to the interests of the applicant and the interests of the respondent in maintaining efficient departmental administration or efficient discharge of duties imposed on the respondent by statute.
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. Deputy Commissioner of Taxation (1987) 14 FCR 119 at pp 130-131. 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) 15 FCR 159; Rizki v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 643.
In addition to the powers provided by s.15 of the ADJR Act, the application as amended attracts the Court's jurisdiction in respect of the matters raised in the application and the Court may also use the powers provided by s.23 of the Federal Court of Australia Act 1976 to make orders of such kinds as the Court thinks appropriate. (See Elmi v. Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471.)
In any event, I am quite satisfied that matters of substance are raised by the applicant by the challenge to each decision contained in the application for review and that the issues raised are appropriate questions for trial. I am also satisfied that as far as any question of balance of convenience is concerned, it falls in favour of the applicant.
It was argued by the respondent that an order by this Court directed to the authorized officer, at whose direction the applicant was kept in custody, to release the applicant from custody would result in the applicant entering Australia thereby circumventing the provisions of the Act.
For the reasons explained at length by Burchett J., which I respectfully adopt, in Watsana Singthong v. Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486, this would not be so. In any event, other provisions of the Act of equal or greater force would come into operation.
Having determined that there is power and no reason in law why an order should not be made under the powers provided by s.23 of the Federal Court of Australia Act 1976 and s.15 of the ADJR Act, it is now necessary to consider whether it is appropriate to make such an order.
The applicant offers undertakings to live at a nominated address, provide a surety, deposit a sum of money with the respondent's department and report regularly to an officer of the department with the intent that such undertakings be made conditions of any order for his release. The provisions of s.89 empowering an officer to direct that a person be taken into custody is not a power of arrest conditioned by the commission of an offence or the need to protect the public from imminent harm. It is a power of arrest for a limited purpose to assist in a significant way the discharge of an administrative function which may otherwise be thwarted to the detriment of the public interest. It follows that it is a power to be used strictly in accordance with its legislative foundation and for that legislative purpose. (See Srokowski v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 15 ALD 775; Akers v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 98 ALR 261 at pp 266-267; Park Oh Ho v. Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517.) The limited purpose of the power of arrest is one of the factors to be considered when determining what is just and fair in the circumstances upon an application to suspend the operation of a decision to arrest.
This is not a case where the person in custody represents a danger if released which cannot be adequately guarded against by imposing conditions on that release and where custody should be continued because of the supervening interest of the public that that be so. Those cases, of course, are likely to be rare and this is not one of them.
It is said that the applicant is subject to a restraining order of a Court of this State in respect of contact with his former wife, but other than that consideration there was nothing to distinguish the applicant from any other person in the community as far as his ability to abide by the law on a day-to-day basis. It is said that the applicant may abscond, but adequate reporting conditions and provision of a surety should provide sufficient safeguards in that regard.
In any event, seven months' incarceration with more to follow whilst this application is prepared for hearing and eventually dealt with is far too long and justice and fairness demands that such an order be made.
I will make an order in the terms sought subject to the applicant signing and abiding by an undertaking in the form attached to the motion as amended. The respondent will have liberty to apply to vary the order of that notice in the event of a breach of the conditions. There will be an order that the respondent pay costs of the applicant's application in any event.
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