Meera Mohideen Seyed Ahamed v Minister of State for Immigration, Local Government & Ethnic Affairs
[1991] FCA 375
•28 JUNE 1991
Re: MEERA MOHIDEEN SEYED AHAMED
And: THE MINISTER OF STATE FOR THE COMMONWEALTH OF AUSTRALIA FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Nos. V G10 and G13 of 1991
FED No. 375
Migration
30 FCR 137
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)
CATCHWORDS
Migration - prohibited entrant - whether applicant had entered Australia - s.36A Migration Act - whether applicant lawfully held in custody pursuant to s.36A(3) - whether expiry of time limits in ss.36A(4) and (5) terminate right to hold prohibited entrant in custody pursuant to ss.36A(1), (2) or (3) - whether applicant satisfied pre-conditions for grant of Sri Lankan (temporary) entry permit.
Migration Act 1958 (Reprint No. 2): ss.5(2), 6(1), (2) and (5), 6A(1)(e), 36A, 38
Migration Act 1958 (Reprint No. 3): ss.4(5), 43, 46, 89
Migration Regulations (Reprint No. 3): reg. 119G
Singthong v Minister (1988) 80 ALR 147
R v Wright (1871) 2 VLR 204
HEARING
MELBOURNE
#DATE 28:6:1991
Counsel for the Applicant: Mr T. Hurley
Solicitors for the Applicant: Ravi, James and Associates
Counsel for the Respondent: Mr R.R.S. Tracey
Solicitors for the Respondent: Australian Government Solicitor
JUDGE1
The applicant is a citizen of Sri Lanka, having been born in that country on 25 September 1960. On Sunday, 17 December 1989 at 9.43am he arrived at Melbourne airport on Qantas flight QF16. He was in possession of a valid visa issued in Colombo. He was interviewed at the airport by an immigration officer, Mr Peter Hobbs.
The applicant told Mr Hobbs that the purpose of his visit to Australia was to conduct business negotiations with Societa Cofica, a Melbourne seed exporting company with whom his employer in Sri Lanka was having some problems. He stated that he intended to stay in Australia for approximately two months, the time he estimated it would take for him to finalise negotiations, but that he would leave earlier if the problem was resolved.
Mr Hobbs' suspicions were aroused by a number of matters. The documents produced by the applicant relating to the dealings between his employer and Societa Cofica showed that the last communication occurred more than a year ago. The amount said to be in dispute was A$1,250 which was less than the cost of the applicant's airfares. The applicant spoke virtually no English but claimed the Melbourne company was run by Indian nationals with whom he could speak in Tamil. Later he said that he had friends in Melbourne who would assist him. Mr Hobbs put to the applicant that his true purpose was to obtain residence in Australia. The applicant denied this and said that he had a good job in Sri Lanka and had not been affected by the unrest in that country. Mr Hobbs decided to refuse the applicant an entry permit. The applicant was then, at about 11.00am, arrested under s.36A of the Migration Act 1958 ("the Act") and taken to the Immigration Detention Centre at Maribyrnong. His visa was cancelled.
Mr Hobbs signed an authorisation in the following terms:
Migration Act 1958
Section 36A
AUTHORITY TO HOLD IN CUSTODY To: Officer in Charge
Australian Protective Service
Immigration Detention Centre, Maribyrnong I, Peter Hobbs, an authorised officer within the meaning of Section 5 of the Migration Act 1958 acting in pursuance of the powers conferred upon me under Section 36A of the said Act, HEREBY DIRECT that Syed (sic) Ahamed Mohideen, a citizen of Sri Lanka, who is:
(a) (deleted);
(b) (deleted);
(c) a person, not being exempted by instrument under the hand of the Minister from the requirements of Division 1A of the Act, who travelled by aircraft from a place outside Australia to a proclaimed airport Melbourne and who has sought and been refused an entry permit, be kept in your custody until he is removed from Australia or such earlier time as an authorised officer directs. Dated this 17th day of December 1989
........ ...(Signed)........ .. Authorised Officer under the Migration Act 1958
At this stage it will be convenient to set out the relevant provisions of s.36A (now s.89) of the Act:
36A. (1) .....
(2) .....
(3) Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.
(4) Where a person is taken into custody under sub-section
(1), (2) or (3), an authorized officer may, at any time within 48 hours after the person is so taken into custody, by notice in writing served on the master, owner, agent or charterer of the aircraft on which he travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.
(5) A master, owner, agent or charterer on whom a requirement has been served under sub-section (4) shall comply with the requirement within the period of 72 hours commencing at the time when the requirement was served on him or within such further period as an authorized officer allows, whether or not the person to whom the requirement relates is able or willing to pay, or agrees to pay, a charge in respect of his removal from Australia.
Penalty: $2,000.
(6) It is a defence to a prosecution in respect of a failure to comply with a requirement under sub-section
(4) if the defendant proves that, after the requirement was served upon him, he gave reasonable notice to an authorized officer of his willingness to receive the person to whom the requirement related on board a specified vessel or aircraft at a specified port at a specified time for removal from Australia and the person concerned was not made available at that port at that time in the custody of an officer for placing on board that vessel or aircraft.
(7) ....
(8) A person shall not, for the purposes of this Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of sub-section (1),
(2) or (3).
(9) ....
The Act also provided for the arrest of a prohibited non-citizen, that is to say a person falling within the definition contained in s.6(1):
6. (1) A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.
That provision for arrest was contained in s.38 in the following terms:
38. (1) An officer may, without warrant, arrest a person whom he reasonably supposes to be a prohibited non-citizen, and a person so arrested may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or an authorized officer directs.
(2) Where an officer arrests a person in pursuance of this section, the officer shall forthwith inform the person arrested of the reason for the arrest, and that officer or another officer having the custody of that person shall take him before a prescribed authority within 48 hours after the arrest or, if it is not practicable to bring him before a prescribed authority within that period, as soon as practicable after that period, and, if the arrested person is not so brought before a prescribed authority, he shall be released.
(3) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a prohibited non-citizen and, if the prescribed authority is satisfied that there are such reasonable grounds, he may, by writing under his hand, authorize the detention of that person in custody for such period as the prescribed authority is satisfied is reasonably required in order to enable the Minister to consider whether that person is a prohibited non-citizen and whether a deportation order should be made in respect of him, but otherwise the prescribed authority shall order that person to be released.
(3A) The period for which the detention in custody of a person brought before a prescribed authority may be authorized under sub-section (3) by that prescribed authority shall not exceed 7 days from the date of the authorization or such longer period from the date of the authorization as the person consents to.
(4) A prescribed authority may, from time to time, extend the period of detention referred to in sub-section (3).
(5) Subject to sub-section (6), at the expiration of the period of detention of a person under this section, that person shall be released.
(6) If, while a person is in custody under this section, an officer informs that person (whether before or after he has been brought before a prescribed authority) that a deportation order is in force in relation to him, the preceding provisions of this section cease to apply in relation to that person and he shall be deemed to have been thereupon arrested under section 39 by the officer having his custody or, if he is not in the custody of an officer, by the officer who so informs him.
(7) Notwithstanding anything contained in this section, an authorized officer may at any time order the release of a person who is in custody under this section.
(8) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from custody of a person held in custody under this section where the court finds that he is not a prohibited non-citizen.
The applicant having been arrested under s.36A(3), the next step was the exercise of the power under s.36A(4) to direct an airline to remove the applicant from Australia. This occurred on 18 December when an authorised officer signed a requirement under s.36A(4) directed to Qantas. This requirement recited that the applicant had travelled to Australia on 17 December on QF16, that he had been taken into custody at Melbourne under s.36A(3) of the Act at 11:00am on 17 December and that the airline was required to remove him from Australia at no charge to the Commonwealth within the period of 72 hours commencing from the time when the requirement was served. The form, which was in evidence, was acknowledged as having been received by Qantas on the same day.
Arrangements were made with Qantas to take the applicant out of the country at 2.30pm on 18 December. At 1.45pm however advice was received by Mr Hobbs that the applicant had requested refugee status and intended to lodge an application for such status. (An affidavit of the applicant asserts that he told immigration officials at the airport on 17 December that he was a refugee and intended to apply for refugee status and a permanent entry visa on compassionate and humanitarian grounds. The respondent's material suggests that the applicant did not give this indication until 18 December when he was at the Centre).
By 1.45pm on 18 December the applicant was in a vehicle travelling from the Centre to the airport. He was returned to the Centre. It appears the travel arrangements were cancelled. There was no direct evidence as to this but Mr Hobbs' superior, Mr Paul Borg, swore in an affidavit (Mr Hobbs being presently overseas) that the ordinary practice where a person arrested under s.36A made an application to remain in Australia was that the airline would be told informally that the person was not available and that a further period of time would be allowed for compliance with the s.36A(4) requirement.
On Monday, 18 December the applicant applied for a grant of residence status and on the following day he lodged an application for grant of refugee status. This latter application was refused on 2 February 1990. An application for reconsideration was made and the decision was confirmed on 30 July. On 16 January 1991 the application for grant of residence status was refused.
On 22 January 1991 interlocutory relief was granted by this Court restraining removal of the applicant from Australia and that relief was subsequently extended so that he has remained in Australia pending the determination of his application to this Court in V G10 of 1991.
On 24 January 1991 the applicant lodged an application for a Sri Lankan (temporary) entry permit under regulation 119G(1) of the Migration Regulations. On 25 January this application was refused and that refusal is challenged in V G13 of 1991.
The Applicant's CaseThe applicant's application for residence status was based on s.6A(1)(e), which provided:
(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -
(a) .....
(b) .....
(c) .....
(d) .....
(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.
The decision-maker in his decision of 16 January 1991 took the view that since the applicant had not "legally entered Australia", the application under s.6A(1)(e) "could not be processed". However he decided to treat the application as one for entry into Australia under s.6(2), which provided:
(2) An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.
Also relevant is s.6(5) which provided:
(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part.)
The decision made was to reject the application under s.6(2). In so doing, the decision-maker acted on the basis that the only matter he was bound to consider was the best interests of Australia but that it was in Australia's interests to accord due weight to matters of compassion raised by persons seeking entry. He considered in some detail the applicant's claim which, in contrast to what was said to Mr Hobbs on arrival, was based on an account of arrest and ill-treatment by the Sri Lankan military authorities in 1986 on the grounds of the applicant's alleged co-operation with the Tamil Tigers.
The amended application in V G10 of 1991 included an attack on the decision on grounds that relevant matters had not been taken into account, irrelevant matters had been taken into account and the applicant had been denied natural justice. These complaints however were effectively abandoned at trial.
The case put for the applicant before this Court was that he did "enter Australia", that the decision-maker erred in law in finding that he did not, and that his application should be remitted for consideration according to law.
The application for a Sri Lankan (temporary) entry permit had been refused on the ground that s.43 of the Act prohibited the grant of an entry permit to the applicant before he entered Australia unless he was the holder of a valid visa and the applicant did not satisfy these pre-conditions. Again the applicant's case was that he had entered Australia.
Entering AustraliaSection 5(2) (now s.4(5)) of the Act provided:
(2) For the purposes of this Act, a person shall be deemed to enter Australia-
(a) in the case of a person arriving in Australia by a vessel other than an aircraft - when he disembarks from the vessel in Australia; or
(b) in the case of a person arriving in Australia by an aircraft - when he disembarks from the aircraft in Australia or, if he so disembarks at a proclaimed airport, when he leaves the airport, whether or not he intends to return to the vessel or aircraft.
It was common ground that Melbourne Airport Tullamarine is a proclaimed airport for these purposes.
The applicant's argument was that he did enter Australia in December 1989 at one or other of two points in time. First, he entered on 17 December when he told the immigration officers that he wanted to be treated as a refugee. (As I have said, it may be as a matter of fact this intimation was not given until the following day, but I will assume for the purposes of argument that the applicant is correct.) Once the intimation was given, any further holding under s.36A was impermissible and if he was to be held in custody lawfully he should have been arrested under s.38. Because that step was not taken he therefore entered Australia at the time he crossed the "statutory Rubicon" of the airport boundary (Singthong v Minister (1988) 80 ALR 147 at p 157 per Burchett J) on the way to the Centre.
Alternatively, he entered Australia on 22 December at the expiration of 72 hours after the service on Qantas or the requirement under s.36A(4), there having been no "further period" allowed.
The first argument in my opinion fails. Once s.36A(3) commenced to operate in relation to the applicant, a unilateral act on his part could not bring that regime to an end. He was plainly a person who had travelled from outside Australia to a proclaimed airport and had there sought and been refused an entry permit. It was not disputed that his taking into custody was lawful under s.36A(3). Accordingly s.36A(8) had the effect that leaving the airport did not constitute an entry into Australia. Moreover, he could not have been lawfully arrested under s.38 because, not having entered Australia, he was not a prohibited non-citizen.
Once a person is arrested and held under s.36A(3) (or ss.(1) or (2)) the custody remains lawful as long as he is being held for the purpose of removal from Australia under ss.(4). In the present case I find that purpose has continued up until the present time. The reason for the substantial delay is that the applicant himself has sought administrative decisions which would give him a lawful right to enter Australia and remain here. These decisions having been made adversely to him, he has then challenged their legality in an Australian court. It would be an odd result if administrative and legal challenges by the person arrested under s.36A(3) could unilaterally bring to an end the lawfulness of custody under that provision, notwithstanding that the challenges themselves were unsuccessful.
As to the second argument, there was considerable debate as to whether the evidence established that a "further period" had been allowed within the meaning of s.36A(5). More fundamentally, however, it seems to me that ss.(4) and (5) are directed not at the termination of custody under ss.(1), (2) or (3) but rather towards the obligation of airlines to remove from Australia, at the expense of the airlines concerned, persons arrested under s.36A.
The argument of the applicant necessarily assumes that non-compliance by an airline with a requirement under ss.(4) will of itself make unlawful custody which has lawfully commenced under ss.(1), (2) or (3). This would mean that custody of a person which was lawful as between the Commonwealth and the person concerned could be brought to an end by conduct of a third party (the airline), which conduct was in itself unlawful.
If, contrary to my opinion, expiry of the time limits contained in ss.(4) and (5) bring to an end the right to keep a person in custody under ss.(3) (or ss.(1) or (2)), the evidence as to whether an authorised officer did allow a "further period" is rather slight. The only positive evidence is Mr Borg's statement that it was the usual practice to allow a further period in such circumstances, coupled with the presumption of regularity: R. v Wright (1871) 2 VLR 204. As I have said, on the view I take this issue does not arise, but if it did I would prefer to resolve the question by reference to the onus of proof which rests on the applicant. His case is that lawful custody under s.36A(3) came to an end because, after a requirement was served under ss.(4), the 72 hours fixed by ss.(5) expired and there was no further period allowed. The applicant has not established the last-mentioned element.
Sri Lankan (Temporary) Entry Permit
Regulation 119G of the Migration Regulations provides:
119G (1) The following criteria are prescribed in relation to a Sri Lankan (temporary) entry permit:
(a) the applicant is a citizen, and normally a resident, of Sri Lanka;
(b) the applicant was present in Australia on 19 February 1990;
(c) the applicant is not subject to a current deportation order;
(d) the applicant has not had an entry permit cancelled under section 35 of the Act.
(2) A Sri Lankan (temporary) entry permit is not to be granted:
(a) except as a temporary entry permit;
(b) except in respect of a period ending not later that (sic) 31 July 1990;
(c) unless granted subject to the condition specified in paragraph 33(4)(a) of the Act.
Relevant provisions of the Act are:
43. An entry permit shall not be granted to a person before he or she enters Australia unless the person:
(a) is the holder of a valid visa; or
(b) is exempted from the operation of section 76 by an instrument under subsection 106(1).
46. An entry permit shall not be granted to a person unless the person is physically present in Australia.
In my opinion, for the reasons already mentioned, the applicant had not entered Australia within the meaning of either the new or old Act by the time his application for a Sri Lankan (temporary) entry permit was considered. It was common ground that he was then not the holder of a valid visa and not entitled to the benefit of the exemption referred to in s.43(b).
I do not think the expression "before he or she enters Australia" in s.43 bears a different meaning from the statutory definition of entry into Australia contained in s.4(5) (formerly s.5(2)).
Note especially the contrast with s.46. Where the concept of physical presence in Australia is relevant, as distinct from the concept of entry into Australia, different language is used.
ConclusionI order that both applications VG 10 and VG 13 of 1991 be dismissed with costs, including reserved costs.
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