NBMV v Minister for Immigration and Citizenship
[2012] FCA 1106
•15 October 2012
FEDERAL COURT OF AUSTRALIA
NBMV v Minister for Immigration and Citizenship [2012] FCA 1106
Citation: NBMV v Minister for Immigration and Citizenship [2012] FCA 1106 Appeal from: Application for leave to appeal: [NBMV] v Minister for Immigration and Citizenship [2012] FCA 806 Parties: NBMV v MINISTER FOR IMMIGRATION & CITIZENSHIP, SECRETARY, DEPARTMENT FOR IMMIGRATION & CITIZENSHIP and COMMONWEALTH OF AUSTRALIA File number: NSD 1162 of 2012 Judge: NICHOLAS J Date of judgment: 15 October 2012 Corrigendum: 17 October 2012 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – order of primary judge summarily dismissing applicant’s claims for damages and declaratory relief – whether proposed appeal from interlocutory judgment has reasonable prospects of success – application for leave to appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 27, 31A(2)
Federal Court Rules 2011 (Cth) r 26.01
Migration Act 1958 (Cth) ss 46(1)(d), 91X, 189, 501, 501E, 501F(3)
Migration Regulations 1994 (Cth) cl 050.511(b)(iii)(A) of Sch 2
Limitation of Actions Act 1936 (SA) ss 35, 36, 48Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Johnson Tiles Pty Limited v Esso Australia Pty Ltd (2000) 104 FCR 564
[NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389
[NBMV]v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1118
[NBMV] v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
[NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145
[NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2005] FCA 1147
[NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 19
Ruddock v Taylor (2005) 222 CLR 612
Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170
House v The King (1936) 55 CLR 499
The State of Queensland v Stephenson (2006) 226 CLR 197Date of hearing: 8 October 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 73 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: D Watson of Australian Government Solicitor FEDERAL COURT OF AUSTRALIA
NBMV v Minister for Immigration and Citizenship [2012] FCA 1106
CORRIGENDUM
1. Paragraph 38 of the Reasons for Judgment be amended to read as follows:
Having found that the three year limitation period stated in s 36(1) expired in July 2008, his Honour then turned to the question of when the limitation period commenced to run in the event s 36(1a) applied.
2.Paragraph 46 of the Reasons for Judgment be amended to read “28 December 1999” in place of “30 November 1999”.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 17 October 2012
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1162 of 2012
BETWEEN: NBMV
ApplicantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentSECRETARY, DEPARTMENT FOR IMMIGRATION & CITIZENSHIP
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
15 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant is to pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1162 of 2012
BETWEEN: NBMV
ApplicantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentSECRETARY, DEPARTMENT FOR IMMIGRATION & CITIZENSHIP
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
NICHOLAS J
DATE:
15 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks leave to appeal from the judgment of Jacobson J given on 3 August 2012 ([NBMV] v Minister for Immigration and Citizenship [2012] FCA 806). The applicant commenced a proceeding against the respondents on 23 December 2011. By his judgment, the primary judge dismissed the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) on the grounds that the applicant’s proceeding had no reasonable prospects of success. It is common ground that the applicant requires leave to appeal from the primary judge’s judgment.
The principles governing the grant of leave to appeal are well settled. Normally, the applicant must show that:
·the judgment in relation to which leave to appeal is sought must be attended with sufficient doubt to warrant it being reconsidered by the Full Court; and
·substantial injustice would result if leave to appeal were refused, supposing the judgment to be wrong.
See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.
In Johnson Tiles Pty Limited v Esso Australia Pty Ltd (2000) 104 FCR 564, French J (with whom Beaumont and Finkelstein JJ agreed) said at para [43]:
… Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties ". [sic] a prima facie case exists for granting leave to appeal" — Ex parte Bucknell (1936) 56 CLR 221 at 225; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; Minogue v Williams [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance — Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).
In the present case the primary judge’s judgment had the practical effect of determining the applicant’s entitlement to the relief claimed by him on a final basis. I therefore approach this application on the basis that leave to appeal should be granted unless I am satisfied that the proposed appeal has no reasonable prospects of success.
BACKGROUND TO THE PROCEEDING BELOW
The proceeding which his Honour dismissed was commenced by an originating application filed on 23 December 2011. By his originating application the applicant claimed the following relief:
1.I make a claim for compensation for $5,000,000.00 (five million dollars) from the minister for immigration and citizenship and the Department for immigration and citizenship and The Commonwealth of Australia for my Detention in immigration detention Centre in Baxter from 13’th June 2002 to 25’th March 2004 for the impact and the damage that that detention has had on and the damage it had done to my life and will continue to have on my life for ever and the lifes of my wife and children. Given the fact that the Minister did not have the authority to make the decision that he made on 11 June 2002. As that decision was so absurd that no sensible person could ever had made such decision, when the minister did things that must not be done and not directing himself properly in law by considering matters which he was not bound to consider.
2.This Originating Application in the Court is brought pursuant to section 39B(1) of the Judiciary Act 1903 (Cth) and section 32(1) of the Federal Court of Australia Act 1976 (Cth) and according to article 9(1),(4) and (5) of the International Covenant on Civil and Political Rights. Given my current detention since the 2nd of December 2011 is unlawful, I further make a claim for compensation for the amount of $5,000.00 (five thousand dollars only) for every day that I am kept and spend in detention.
(errors in original)
The originating application included a claim for various interlocutory relief which was not pursued. It also included a claim to a declaration. The declaration claimed was in the following terms:
A declaration that my detention from 2 December 2011 is unlawful detention and the Minister be further restrained and prohibited from commencing or take [sic] any other action(s) that will cause him to return me to detention in the future. Further, that a Declaration be made by the Court that since his decision was Quashed by the Court, the detention also was unlawful.
INTERLOCUTORY APPLICATIONS BEFORE THE PRIMARY JUDGE
The respondents filed an interlocutory application on 8 March 2012 in which they sought an order dismissing the proceeding on the ground that the applicant had no reasonable prospect of succeeding in his proceeding. On 2 April 2012 the applicant filed his own interlocutory application. The only order sought in that interlocutory application was an order that the respondents’ interlocutory application be dismissed. The document filed by the applicant also included submissions in support of the making of such an order.
A directions hearing was held before the primary judge on 9 February 2012. On that date the primary judge indicated that he would list for hearing on 18 April 2012 any application by the respondents for summary dismissal of the proceeding. Pursuant to other orders made by his Honour on that date, the applicant was required to file and serve any application and evidence upon which he sought to rely by 3 April 2012. It is clear from the transcript of the directions hearing that his Honour contemplated that the applicant would file any application for an extension of time under the provisions of the Limitation of Actions Act 1936 (SA) (the Limitation Act) within that time. No such application was ever filed by the applicant.
BACKGROUND TO THE PROCEEDING BEFORE THE PRIMARY JUDGE
The applicant is a Nigerian citizen who entered Australia in 1994 on a student visa with his wife and two children. On 11 June 2002, the then Minister refused the applicant’s application for a parent visa on the ground that the applicant did not pass the character test provided for in s 501 of the Migration Act 1958 (Cth) (the Act). This is the decision referred to in para 1 of the originating process. The applicant was placed in detention on 13 June 2002 and was released from detention on 25 March 2004 after a Full Court of this Court handed down judgment quashing the decision of 11 June 2002.
The applicant’s claim for compensation in para 1 of his originating process arose out of his detention at the Baxter Immigration Detention Centre in South Australia between 13 June 2002 and 25 March 2004. The applicant made two claims relating to his detention during this period. The first was a claim for damages for unlawful detention or false imprisonment. The second was a claim for damages in respect of psychological injuries alleged to have been suffered by him in or after the period of detention. With regard to this second claim, it was the applicant’s case that the respondents, or one or more of them, breached a duty of care owed to him while he was in detention by requiring the applicant to live and work in conditions that had a traumatic effect upon him and which were the cause of the applicant’s psychological injuries.
The originating process also included a claim for damages in respect of the applicant’s detention at the Villawood Detention Centre commencing on 2 December 2011. The applicant was placed in detention at the Villawood Detention Centre on or about that date after serving a lengthy term of imprisonment about which I will say more shortly.
PREVIOUS PROCEEDINGS IN THIS COURT
There have been numerous proceedings between the applicant and the first respondent (Minister), some of which are of particular significance.
On 1 May 2003 Finn J dismissed the applicant’s application for orders (inter alia) quashing the Minister’s decision of 11 June 2002: see [NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389. The applicant filed an appeal against his Honour’s decision. At a time when the applicant’s appeal was yet to be heard the applicant applied to Mansfield J for orders requiring the applicant’s immediate release from detention. That application was refused by his Honour: see [NBMV] v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1118. It will be necessary for me to refer to that decision in some detail later in these reasons.
On 25 March 2004 the Full Court in [NBMV] v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (Carr, Sundberg and Lander JJ) made orders allowing the applicant’s appeal against the judgment of Finn J and quashing the Minister’s decision of 11 June 2002.
As Lander J (with whom Carr and Sundberg JJ agreed) pointed out (at para [7]), a consequence of the decision of 11 June 2002 was that the Minister was also taken to have decided to cancel the applicant’s bridging visa: see s 501F(3) of the Act. This had the consequence of rendering the applicant an unlawful non-citizen liable to detention under s 189 of the Act. A few days after the decision of 11 June 2002 was made, the applicant was placed in detention where he remained until the Full Court delivered its judgment on 25 March 2004.
Another proceeding between the applicant and the Minister was heard by Lander J the following year. His Honour delivered two sets of reasons for judgment on 19 August 2005: see [NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145 (the interlocutory judgment) and [NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2005] FCA 1147 (the principal judgment).
The proceeding before Lander J was brought by the applicant, his wife and their first child. They applied for an injunction which, if granted, would have prevented the Minister from cancelling a bridging visa A associated with an application for a protection visa lodged by the applicant on 22 December 1995. On 7 November 1996 the Minister’s delegate refused to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal (RRT) for a review of that decision. On 3 April 1998 the RRT affirmed the decision of the Minister’s delegate. Lander J found that the bridging visa A granted on 22 December 1995 ceased on 8 May 1998 by operation of law.
The applicant appealed the principal judgment of Lander J and sought leave to appeal the related interlocutory judgment. The appeal against the principal judgment was dismissed and leave to appeal the interlocutory judgment was refused by a Full Court (Kiefel, Kenny and Graham JJ) on 22 February 2006: [NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 19. In dismissing the appeal the Full Court observed (at para [17]) that “[i]t is clear that the [applicant] held no visa of any kind between 28 December 1999 and 30 March 2004”. The Full Court noted that on 30 March 2004 the applicant was granted a bridging visa E in connection with an application to the High Court which he continued to hold at the time of the Full Court hearing.
THE APPLICANT’S IMPRISONMENT
The applicant was sentenced on 30 May 2007 to a lengthy term of imprisonment commencing on 14 June 2006 after being convicted on three counts of unlawful sexual intercourse with his eleven year old daughter.
On 8 June 2006 the applicant was granted a criminal justice stay visa consequent upon a stay certificate having been issued by the South Australian Director of Public Prosecutions. The criminal justice visa remained in force until 30 November 2011. The applicant completed his term of imprisonment on 2 December 2011. On that date he was transferred to Villawood Immigration Detention Centre where he remains.
On 15 January 2009 the applicant, who was then in prison, made a further application for a protection visa. The applicant was granted a bridging visa E on 23 June 2009 connected with his application for a protection visa. The application for a protection visa was refused by the Minister’s delegate. The applicant then sought a review of this decision. The RRT affirmed the delegate’s decision on 10 November 2009.
An application for judicial review of the RRT’s decision was dismissed by a Federal Magistrate on 15 December 2010. An appeal to the Federal Court was dismissed by a single judge on 19 May 2011. No application for special leave to appeal that decision was lodged by the applicant. The bridging visa E ceased to have effect on 17 December 2009, 28 days after the applicant was notified of the RRT’s decision of 10 November 2009: see cl 050.511(b)(iii)(A) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).
THE HEARING BEFORE THE PRIMARY JUDGE
At the hearing on 18 April 2012 the respondents read two affidavits of Rogan O’Shannessy. Mr O’Shannessy is a Senior Legal Officer in the Civil Litigation and Compensation Section of the Litigation and Opinions Branch of the Department of Immigration and Citizenship. He was not cross-examined.
The applicant relied upon a number of affidavits in opposition to the respondents’ interlocutory application. The first of these was an affidavit sworn by him on 23 December 2011. The second was an affidavit sworn by him on 2 April 2012. The applicant was not cross-examined. The applicant also tendered some correspondence relating to a request made by him under the Freedom of Information Act 1982 (Cth) (the FOI request) and a number of publications issued by the Department of Immigration and Citizenship relating to the making and processing of visa applications.
At the commencement of the hearing the applicant applied for an adjournment. One of the reasons given in support of this application was the failure of the respondents to comply with the FOI request. There were four letters in evidence before the primary judge relating to a request for documents lodged by the applicant with the Department of Immigration and Citizenship. It is apparent from the first of these that the FOI request was received on 11 March 2012. The applicant’s request appears to have been extended to every document in the Department’s file with respect to the applicant since June 2002. By a letter dated 10 April 2012 the Department notified the applicant that it would write to him to inform him of the decision in relation to his request after consultation with other agencies. The due date for the FOI request was said to be 10 May 2012.
The primary judge refused the application for an adjournment. At the same time, his Honour indicated to the applicant that if it emerged during the course of the hearing that the material sought by the applicant might have some bearing upon the issues he was being asked to determine, then he would re-visit the question of whether or not there should be an adjournment.
The applicant renewed his application for an adjournment later in the hearing but this was again refused by his Honour.
After the primary judge refused the adjournment, and after the solicitor who appeared for the Minister had made submissions, his Honour explained to the applicant what matters he needed to address. I will not only set out the primary judge’s explanation but also the applicant’s immediate response:
HIS HONOUR: You understand - just before you start - that Ms Watson is moving to have your proceeding dismissed on the grounds that she has mentioned, dealing with the present - the claim you’re presently unlawfully detained. She says that fails - must fail - because your bridging visa expired by reason of the operation of the migration regulations before you were taken into immigration detention and so you had no bridging visa and therefore you were - as the Act says - an unlawful non-citizen and you were liable to be taken into detention. So, you have got - she says you have got no claim in relation to that. As to the claim that you were unlawfully detained before 2002 and 2004 and the damages which you claim that you suffer from that, she says that your claim is bound to fail for a number of reasons. She says, firstly, the claim that you were unlawfully detained is based upon your successful appeal, which was decided in your favour in 2004 but there’s a High Court case that says the mere fact that you succeed on the appeal doesn’t mean that you were unlawfully detained for the two years.
But she also says that under the Limitation Act, your action is barred by the operation of that act, which sets time periods within which you can commence a proceeding and then there were two limbs to that argument. The claim for unlawful detention has a six year limitation and you heard what she said about that and the claim for damages for your mental illness and consequential loss is a claim for personal injuries - you have got a three year limitation period - and so it was barred from the time when it first manifested itself - or accrued. And she says that’s 2005, for the reasons that she has mentioned and she says in any event, on your own evidence in two thousand and - you say that you learnt of the link between your illness and the detention in 2009. So, you have only got 12 months in which to commence the proceeding and so your proceeding is too late. Now, you need to be able to address me on those issues. As I understand it, what you want to do is to address, at least, part of Ms Watson’s complaints by making an application to extend time within which to put in your claim but you have to satisfy me that this is an appropriate case for you to do that. Now, I know you’re not legally represented and you don’t have legal training but you need to try to address me on those issues.
[THE APPLICANT]: Thank you very much, your Honour. The first part of - - -
HIS HONOUR: Does that - I will just - does that cover sufficiently, Ms Watson?
MS WATSON: Yes.
HIS HONOUR: All right. Yes.
[THE APPLICANT]: The first part of the issue I would like to raise with you is to direct your attention back to the application that I wish to make because during her submissions she has also raised a number of things. Counsel referred to some judgements of the court and they are talking about also issues in relation to incidents in the pleadings and other things. What I want to say is that I have also asked the Federal Court Registry in Adelaide - since three weeks, now - to send me materials regarding a lot of those judgements and the documentations that were in them - or are in them - and they despatched this on - despite this documentation - on the express post last Wednesday. The department is holding on to them and said because they know that those things from the court have very damaging evidence against their case, which they have just put this morning. I have spoken to their supervisor three times. I have spoken to the court yesterday again. They assured me that when it left Adelaide - and on many occasions since I have arrived - of express post to their state.
Particularly, in relation to incident that happened, I would like to also say that in 2003 Mansfield J dealt with some of these things in the Federal Court in Adelaide from detention and his judgement also will be relevant and the materials that were before the court in relation to some of these things that I suffered. Well, further there are also issues relating to what bridging visa, especially on the date when I was released from detention, why it took so long for me to be released from detention because there was evidence - and there is evidence in the department’s record about what was going on in Canberra about which visa I had and whether it is current or not. So, from 9 o’clock in the morning they were deliberating that and they keep assuring me that they will be getting back to me - til 5 pm - after 5 pm at night - they finally made a decision that I held a bridging visa A and B and so I was let out of detention. Are they wrong? Were they wrong? Absolutely not.
She also raised the issue of - that why the bridging visa was issued - that was, it was issued because I wanted to travel abroad to lodge a parent visa. That is not correct. That is not the case. And so, there are also this material and a lot of evidential material, which it is quite disable me in a lot of ways to be able to respond to the submissions of counsel before you, your Honour. And further there are records - daily records that - before the department about incidents that occurred in detention of which I will take you to one with Mansfield J that happened to me. These things - these records - are not somewhere in the Arctic sea. They are with the department and - - -
(emphasis added)
The applicant’s reference in his submission to the primary judge to a proceeding before Mansfield J in 2003 is of considerable significance, though I doubt that the primary judge would have appreciated at the time why that might be so, given what the applicant had to say on that matter.
The applicant went on to assert that it would be unjust for him to have to respond to the respondents’ submissions. Later he returned to the question of an adjournment. The following exchange occurred at about the time his Honour asked the applicant if he wanted a short adjournment:
HIS HONOUR: Do you want me to go off the bench for a few minutes?
[THE APPLICANT]: Your Honour, if that’s what you would like to do, that’s all right.
HIS HONOUR: No, it’s up to you. If you want me to adjourn for five minutes, I can do that.
[THE APPLICANT]: That will be okay, if it would ..... the issue I’m praying that you do, your Honour, is that one that I need that adjournment.
HIS HONOUR: I understand your position, but it seems to me the question is this: whether in light of what Ms Watson has put to me and in light of the matters that you say you can obtain by way of evidence, there may be material which would be such as to take into account in refusing the orders that Ms Watson seeks, because you may be able to adduce material evidence which would prevent me in a proper exercise of my powers, from dismissing Ms Watson’s application. So I will consider what you say, but I need to look more closely at the material to which Ms Watson has taken me, before I can ‑ ‑ ‑
[THE APPLICANT]: Okay.
HIS HONOUR: ‑ ‑ ‑ before I can decide that issue.
[THE APPLICANT]: Yes.
HIS HONOUR: Ms Watson says that that evidence – in the light of the record, the evidence that you say you can get would not assist you and I have to consider that and I will.
[THE APPLICANT]: Yes.
HIS HONOUR: But if there’s anything else you want to say I’m content to go off the bench for five minutes and come back, if that’s what you want me to do.
[THE APPLICANT]: That’s okay, your Honour, I’m prepared to pursue the unlawful – correctional unlawful detention.
HIS HONOUR: All right.
[THE APPLICANT]: But not the order – the matters relating to 2002 to 2004, your Honour.
His Honour reserved judgment at the conclusion of the hearing. He indicated that the parties would be notified when he was ready to hand judgment down. Judgment was handed down by his Honour on 3 August 2012.
THE LIMITATION ACT
The primary judge referred to the relevant sections of the Limitation Act but did not set out them out. The relevant provisions are as follows.
Section 35 relevantly provides:
The following actions namely:
…
(c) actions founded on tort;
…
shall, save as otherwise provided in this Act, be commenced within six years next after the cause of action accrued and not after.
Section 36 provides:
(1)All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after.
(1a)However, in the case of a personal injury that remains latent for some time after its cause, the period of 3 years mentioned in subsection (1) begins to run when the injury first comes to the person's knowledge.
(2)In this section—
personal injuries include any disease and any impairment of a person's physical or mental condition.
Section 48 relevantly provides:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)instituting an action; or
(b)doing any act, or taking any step in an action; or
(c)doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a)the court has jurisdiction to entertain; or
(b)the court would, if the action were not out of time, have jurisdiction to entertain.
(3)This section does not—
(a)apply to criminal proceedings; or
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(3a)A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a)it forms an essential element of the plaintiff's cause of action; or
(b)it would have major significance on an assessment of the plaintiff's loss.
Example—
In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes—
(a)a substantial reduction of the plaintiff's capacity to work; or
(b)that the plaintiff will require substantially more medical care than previously expected; or
(c)a significant loss of expectation of life.
…
THE PRIMARY JUDGE’S REASONS
Against that background it is convenient to turn to the reasons given by the primary judge in support of his conclusion that the applicant’s proceeding had no reasonable prospect of success. For this purpose it is convenient to consider each of the three claims advanced by the applicant separately.
Was the applicant’s detention in the period 13 June 2002 to 25 March 2004 unlawful?
The primary judge dealt with this issue succinctly. His Honour was satisfied that this aspect of the applicant’s case was covered by the decision in Ruddock v Taylor (2005) 222 CLR 612. He said at paras [59]-[61]:
[59]Section 189 of the Act states that if an officer knows or reasonably suspects that a person in the Migration zone is an unlawful non-citizen, the officer must detain the person. The definition of officer in s 5 of the Act includes an officer of the Department.
[60]The effect of the majority decision in Ruddock v Taylor [(2005) 222 CLR 612] at [40] is that, as Gleeson CJ, Gummow, Hayne and Heydon JJ said, the question of what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen is to be judged against what was known or capable of being known at the time when the person was detained; what were reasonable grounds for effecting the person’s detention do not retrospectively cease to be reasonable upon the court making later orders that the detention was unlawful: see also [232] per Callinan J.
[61]It follows that [the applicant’s] contention that his detention in Baxter was unlawful by reason of the decision of the Full Court dated 25 March 2004 cannot be maintained.
Was the applicant’s claim for damages for breach of duty of care statute barred?
The primary judge held that this claim was clearly statute barred. His Honour approached the question whether this claim should be summarily dismissed mindful that he ought not summarily dismiss it unless there were no dispute of fact and the conclusion that the claim was statute barred was very clear.
The primary judge then turned to the limitation issues and the relevant provisions of the Limitation Act. His Honour said (at paras [68]-[73]):
[68][The applicant’s] claim is therefore to be characterised as an action for damages in respect of personal injuries which was required to be commenced within three years after the cause of action accrued: see Limitation Act s 36(1) and the definition of “personal injuries” in s 36(2); see also Handford, D, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed Thomson Lawbook Co, 2006) at [14.220].
[69]It seems clear enough that damage is a necessary element of such a cause of action, so that the cause of action accrues when the damage is suffered: Commissioner of Railways v Stewart (1936) 56 CLR 520 at 527 and 536; see also Cartledge v E. Jopling & Sons [1963] AC 758; Pirelli General Cable Works v Oscar Faber & Partners Ltd [1983] 2 AC 1.
[70]Where, as in the present case, the claim is for psychiatric injury, the issue is whether the damage is suffered at the time of the traumatic event, or subsequently, when the plaintiff has suffered a reaction which is manifested in a recognisable psychiatric illness. The authorities establish that damages are recoverable in negligence only for a recognisable psychiatric illness and not for emotional distress: see Tame v New South Wales (2002) 211 CLR 317 at [44]; see also Mullany and Handford’s Tort Liability for Psychiatric Damage at [14.240].
[71]If follows that in the present application I should proceed on the basis that the cause of action alleged by [the applicant] rests upon damage that may have been suffered after the period of his detention in Baxter which ceased on 25 March 2004.
[72]Nevertheless, the facts upon which [the applicant] relies make it plain that the latest date on which he could be said to have suffered a recognisable psychiatric illness was 11 July 2005 when he was admitted to the Carmond [sic] Clinic at the Queen Elizabeth Hospital and was diagnosed with depression.
[73]Accordingly the present action was commenced well after the expiration of the three year limitation period stated in s 36(1) which expired in July 2008.
Having found that the three year limitation period expired by no later than 11 July 2005 his Honour then turned to the question of when the limitation period commenced to run.
The primary judge dealt with s 36(1a) of the Limitation Act as follows:
[74]Section 36(1a) of the Limitation Act, which was inserted with effect from 8 February 2006, makes specific provision for situations which have arisen in authorities such as Cartledge v Jopling where a disease exists but its symptoms are unknown until a later point of time.
[75]It is to meet this situation that s 36(1a) provides that in the case of a personal injury that remains latent for some time after the cause, the period of three years stated in s 36(1) begins to run when the injury first comes to the person’s knowledge.
[76]The word “latent” in s 36(1a) means hidden or concealed, present but not visible or apparent. It describes a condition suffered by a person about which the person has no knowledge: Politarhis v Westpac Banking Corporation [2008] SASC 296 at [234].
[77]Section 36(1a) is procedural in nature and applies to the present case: Maxwell v Murphy (1957) 96 CLR 261 at 286ff per Fullager J. In some cases that subsection will have the effect of substantially delaying the commencement of the limitation period. However, in the present case it does not. This is because it is clear from [the applicant’s] own evidence that the psychiatric injury first came to his knowledge in July 2005 when he was admitted to the Cramond Clinic.
His Honour went on to refer to the applicant’s affidavit which his Honour said made it plain that the applicant was suffering from post-traumatic stress disorder with depressed mood and significant risk of suicide at about which time the applicant was hospitalised. His Honour also referred to evidence from the applicant that showed he received treatment for these conditions from a clinical psychologist, Mr Harrison, during the latter part of 2005 and the early part of 2006 until he was remanded into custody on the criminal charges to which I previously referred.
The evidence before the primary judge included two reports prepared by Mr Harrison. As to the second of these reports, his Honour said that it was “sufficiently plain” from that report that the applicant knew of his depression and other psychological conditions during the period in which he was receiving treatment from Mr Harrison. His Honour concluded (at para [81]):
[81]It is impossible, in my opinion, to read [the applicant’s] evidence, as confirmed by Mr Harrison’s report, on any basis other than that the psychological injury of which he now complains first came to his knowledge when he was admitted to the Cramond Clinic in July 2005. On the most favourable view to him he knew of the injury when he undertook the therapy sessions with Mr Harrison between 2 September 2005 and April 2006.
His Honour also observed (at para [86]):
[86]Here, as I have said, [the applicant’s] own evidence and the confirmation of it in Mr Harrison’s report makes it plain that [the applicant] fully perceived the existence of a recognised psychiatric illness during the period of his admission to the Cramond Clinic. At very latest, and on the most favourable view to [the applicant] the illness first came to his knowledge when he was treated by Mr Harrison. It would follow that the condition first came to his knowledge in the period from 2 September 2005 to April 2006. But even on that view, the limitation period of three years ran from no later than April 2006 and expired more than two years before the commencement of the present proceeding.
His Honour went on to explain why s 36 of the Limitation Act applied. His Honour said that this was because the damages claim by the applicant in respect of the respondents’ alleged breach of duty of care was for personal injuries within the meaning of s 36(2).
His Honour then turned to the question whether the applicant might not be able to obtain an extension of the limitation period in accordance with s 48(1) of the Limitation Act. His Honour dealt with that question (at paras [90]-[96]) as follows:
[90]The question which then arises is whether the power to extend the limitation period under s 48(1) is enlivened. The power to extend time is broad in nature, its purpose being to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit. However the width of the power is limited by s 48(3) which denies to a court the power to extend time unless it is satisfied of the circumstances set out in either para (i) or (ii) of s 48(3)(b): see Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635; see also Estate of the Late Sir Donald Bradman v Allens Arthur Robinson [2010] SASC 71 at [23]; Williams v Reid [2010] SASC 264 at [22].
[91]Here, the relevant subsection is (i), that is to say, s 48(3)(b)(i). That subsection has been explained by the High Court and by the Full Court of the Supreme Court of South Australia. The court is not empowered to extend a limitation period unless it is satisfied that facts material to the plaintiff’s case were not ascertained by the plaintiff until a point of time stipulated in the subsection. The point of time is either within 12 months before the expiration of the limitation period, or a point of time occurring after the expiration of the limitation period. But, importantly, in either event, the action must be instituted within 12 months after the plaintiff ascertains those facts: Estate of the Late Sir Donald Bradman at [23]; see also Williams v Reid at [22].
[92]The “facts material to the plaintiff’s case” are those which are both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and are of sufficient importance to be likely to have a bearing on the case. The facts which are material are those that are relevant to the case at trial, not to the plaintiff’s decision to sue: Sola Optical at 636; see also Williams v Reid at [26] – [29].
[93]In the present case, [the applicant] says at [58] of his affidavit filed on 23 December 2011 that he was diagnosed with depression and other conditions when he was admitted to the Cramond Clinic in July 2005
“and that I am suffering an incapacitating mental health problem due to the effect the trauma that detention has had on me.”
[94]This appears to me to suggest that [the applicant] claims to have ascertained the causal link between his psychiatric illness and his detention in Baxter in July 2005.
[95]But even if that is not a correct interpretation of his evidence, the question is put beyond doubt, for present purposes, by what [the applicant] says in paragraph 15 of his affidavit filed on 2 April 2012. There, [the applicant] says that he first knew and discovered that his injuries were caused by the negligence and breach of duty of the Commonwealth between late July and early August 2009. He makes statements to the same effect in paragraphs 7 and 8 of his interlocutory application filed on 2 April 2012.
[96]It follows that [the applicant’s] action was not instituted within 12 months after he ascertained the material facts and the court is not empowered to extend the limitation period applicable to [the applicant’s] cause of action.
Was the applicant an unlawful non-citizen when he was placed in detention on 2 December 2011?
The primary judge noted that this question turned on whether the applicant held a visa that was in effect when the applicant was placed in detention on 2 December 2011.
His Honour referred to the various possibilities raised in the evidence before him. In summary his Honour concluded:
·the bridging visa A issued to the applicant on 22 December 1995 ceased on 8 May 1998;
·the bridging visa A issued to the applicant on 5 July 1999 ceased on 5 July 1999;
·the bridging visa B issued to the applicant on 5 July 1999 ceased on 30 November 1999;
·the bridging visa E issued to the applicant on 30 March 2004 ceased in August 2005;
·the bridging visa E issued to the applicant on 23 June 2009 ceased on 17 December 2009; and
·therefore the applicant did not hold any visa that was in effect on 2 December 2011 when he was placed in immigration detention at Villawood. The applicant’s detention was therefore authorised by s 189 of the Act.
THE APPLICANT’S PROPOSED APPEAL
The application for leave to appeal raised the following 5 grounds in support of the applicant’s proposed appeal:
1.His honor Jacobson J erred in law for not granting me an adornment so that I could provide the court with the evidence that I would have relied or in accordance with his honor’s directions and orders given on 9 February 2012 and given the fact that there was evidence before the court in a number of letters from the Department in which they stated very clearly that I had sought on Freedom of information that the department provide me with the relevant material evidence and specific documentation which were relevant to my case in the proceedings before the court and the Department had clearly said that it was unable to provide these materials before the hearing of 18 April 2012 and that it require 30 days and then another 30 days before it can provide me with these relevant material documents. The refusal and denial by the court and his honor to adjourn the proceedings is a denial of procedural fairness and a miss trial.
2.His honor erred in law for delivering a judgment with out my submissions on the grounds of my compensation and claims for damages against the respondents for their negligence and breach of duty of care to me. Given the fact that I did not make any or put in any submissions in regards to the compensation and claims for damages limb of my case and it was my understanding that that I would still make submissions in regards to that as I only made submissions in regards to my unlawful detention which commenced on 2 December 20011 as I have a visa that is current and indeed have a number of visas that are still current which would have been evident should I have had the opportunity to present those documents that the respondents servants and department refused to provide me before the hearing. This was clearly a denial of natural justice and given the fact that his honor was aware that I did not make any submissions.
3.His honor erred in law for failing to grant me an extension of time within which to commence the proceedings against the respondents in breach of the precedent set down by the High Court of Australia in State of Queensland V Peter Robert Stephenson and Scott William Reeman V State of Queensland and State of Queensland V Timothy James Wrightson given on 17 May 2006. The requirement is for the Court to grant extension and enlarge the time for the matter in the proceedings to go to a full trial with the benefit of all the relevant evidence. His honor's judgment was given in the absence of only materials and submissions from the respondents only.
4.His honor erred in law for ignoring the materials which were relevant to my case on the face of the record in that I was not out of time to bring the proceedings in tort on the face of the record. This also is denial of procedural fairness.
5.His honor erred in law for failing to find that I am being and have been detained unlawfully since 2 December 2011 as my bridging and visas are still in effect.
(errors in original)
I shall deal with each of the proposed grounds of appeal in turn.
GROUND 1
The applicant says that the primary judge was wrong to refuse the applicant an adjournment and that this refusal gave rise to a denial of procedural fairness. The question is whether that proposition is reasonably arguable. I do not think it is.
A decision to grant or refuse an adjournment involves the exercise of discretion in relation to a matter of practice and procedure. Particular caution must be exercised when reviewing decisions that involve an exercise of discretion in relation to such matters: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170 at 177. In any appeal it would be necessary for the applicant to show that the primary judge’s refusal to grant the adjournment was the product of a miscarriage of his Honour’s discretion to either grant or refuse the applicant an adjournment: House v The King (1936) 55 CLR 499 at 504-505.
The interlocutory application filed by the applicant on 2 April 2012 makes no mention of a possible adjournment of the hearing date fixed for 18 April 2012 nor did it say anything about the need for the applicant to obtain access to documents if he was to be in a position to proceed on that date.
All that the primary judge was told by the applicant about the relevance of the documents the subject of the FOI request to the issues to be determined by the primary judge was that the applicant was granted another bridging visa in early 2003 and that the applicant had made an FOI request “to get this documentation”. As is apparent from the correspondence that was in evidence before his Honour, the FOI request was much broader than this.
It is apparent from the transcript of the proceedings before the primary judge that his Honour was influenced by what he had been told in opening by the solicitor who appeared for the respondents about prior litigation between the applicant and the Minister. In particular, his Honour was taken to the Full Court judgment in the proceeding heard by Lander J in which the Full Court upheld the finding made by Lander J that the applicant never held a visa of any kind between 28 December 1999 and 30 March 2004. Against that background, it is hardly surprising that the primary judge refused the adjournment. After all, the applicant was seeking an adjournment to re-open a matter that had previously been determined by Lander J in a judgment upheld by the Full Court.
When the applicant’s application for an adjournment is viewed in its proper context, the primary judge’s decision to refuse it was unexceptionable. I am satisfied that ground 1 has no prospects of success.
GROUND 2
The applicant argued that although he made submissions to the primary judge in relation to his detention since 2 December 2011, he did not address on other issues dealt with by his Honour. The transcript of the hearing shows that the applicant did make some submissions in relation to these issues even though he protested at the time that he could not do so. For example, the applicant provided his Honour with a reference to The State of Queensland v Stephenson (2006) 226 CLR 197, a decision of the High Court upon which he relied concerning the requirements for an extension of time under the Limitation of Actions Act 1974 (Qld).
Whether or not the applicant could have said more in relation to these issues, I think the transcript makes it clear that the primary judge never suggested that the applicant need not advance all of the submissions the applicant wanted to make at the hearing. The applicant’s reiteration of his position, notwithstanding the primary judge’s refusal of the applicant’s request for an adjournment, that he could not make submissions on all issues did not alter the essential position, which was that the adjournment had been refused and, as a consequence, the applicant was required to present his arguments as best he could. At no stage did the primary judge indicate that he would permit the applicant to make further submissions after he had reserved his decision.
I do not think ground 2 has any prospects of success.
GROUND 3
This ground is misconceived in that it assumes the applicant made an application under s 48(2) of the Limitation Act for an extension of time. No such application was ever made by the applicant even though his Honour’s orders of 9 February 2012 were intended to provide the applicant with the opportunity to make such an application. In any event, the primary judge was clearly correct in finding that the applicant had no prospect of obtaining an extension of time even if he was to make such an application.
The applicant’s own affidavits together with the relevant medical reports establish beyond argument that the applicant knew of his alleged psychological injuries by no later than August 2009 and that he believed that they were caused by traumatic experiences he suffered in detention: see, in particular, the applicant’s affidavit sworn 22 December 2011 (filed 23 December 2011) at paras 56-61 and his affidavit sworn 22 March 2012 (filed 2 April 2012) at paras 5-8 and 15 referring to Mr Harrison’s report dated 21 May 2009.
GROUND 4
The applicant did not identify any evidence that was before the primary judge which his Honour was said to have ignored. In any event, it does not appear to me that his Honour ignored any evidence that was material to the determination of the issues before him. In so far as ground 4 might be understood as referring to materials that were not in evidence then I would refer to what I have already said in relation to the applicant’s proposed grounds of appeal.
GROUND 5
In considering this ground I must refer to a document (MFI-1) that was tendered by the applicant at the hearing before me. The document was objected to by the respondents and was received by me subject to the objection. The document was not in evidence before the primary judge. It was produced by the applicant at the hearing of the application for leave to appeal without any prior notice to the solicitor who appeared for the respondents.
The document appears to be a copy of a document issued by the Department to the applicant on 16 December 2002. In the document the applicant is referred to as a visa holder. The document states:
ADVICE TO PERSONS GRANTED A BRIDGING A VISA
Name of visa holder: [the applicant]
Dependents: [the applicant’s wife]
[the applicant’s second child][the applicant’s first child]
APPLICATION FOR PERMANENT RESIDENCE VISA
READ THIS LETTER CAREFULLY AS IT CONTAINS IMPORTANTINFORMATION ABOUT YOUR BRIDGING VISA
You have been granted a Bridging A visa.
Your Bridging A visa will permit you to remain lawfully in Australia while your substantive visa application (ie the application you have made for a protection visa) is decided. The bridging visa will come into effect when any other visa(s) you hold ceases.
Your Bridging A visa permits you to remain in Australia until 28 days after notification of the decision on your substantive visa application and, if that application is refused, continues to keep you lawful until 28 days after all avenues of merits review have been exhausted.
There are no work limitations on your Bridging visa A.
The date your current substantive visa ceases is shown on the visa label.
Note: If you breach a condition of your visa, while that visa is in effect, the visa may be cancelled.
Travel permission
Your Bridging A visa does not provide you with permission to re-enter Australia. It will cease if you depart. If you need to travel overseas at any time during processing of your substantive visa application, you should apply for a Bridging B visa which permits re-entry to Australia. If you do not obtain a Bridging B visa while your substantive visa (eg any visitor visa, student visa or temporary residence visa you may hold) is still valid, and you depart and re-enter Australia using your substantive visa, you must apply for a replacement Bridging A visa on return.
Please refer to the information forms Bridging visas and Visa applications for further important information about the bridging visa you now hold and your rights and responsibilities during the processing of your substantive application.
The applicant told me that he obtained the document from his wife some three weeks or so before the hearing. There are several things to note about the document.
The document appears to have been prepared after the Minister’s decision of 11 June 2002 was made but before the Full Court judgment of 25 March 2004 which allowed the applicant’s appeal and quashed the Minister’s decision. This is surprising given s 46(1)(d), s 501E and s 501F(3) of the Act. The applicant was not entitled during this period to apply for a bridging visa while in the migration zone: s 501E. And the Minister was taken to have cancelled any visa held by the applicant (apart from a protection visa or a visa specified in the Regulations) on 11 June 2002 when the Minister refused the applicant’s application for a parent visa: s 501F(3).
In [NBMV]v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1118 Mansfield J dealt with an application brought by the applicant for an order requiring that the applicant be released from detention. The application was heard on 3 October 2003 and determined by his Honour on 14 October 2003, not long before the hearing of the applicant’s appeal to the Full Court from Finn J. In his Honour’s reasons the applicant is referred to as the appellant and the Minister is referred to as the respondent. His Honour set out the background to the application (at paras [1]-[3]) as follows:
[1]On 11 June 2002 the respondent refused an application for a class 103 parent visa by the appellant on the character ground: s 501 of the Migration Act 1958 (Cth) (the Act). A challenge to that decision was dismissed on 1 May 2003: [NBMV] v Minister for Immigration & Multicultural Affairs [2003] FCA 389. An appeal from that decision is listed for hearing before the Full Court on 21 November 2003.
[2]By motion of 4 August 2003, the appellant sought an order for his immediate release from immigration detention, having been in immigration detention as an unlawful non-citizen since June 2002 following the respondent’s decision of 11 June 2002. I dealt with the first of the two grounds upon which that application was made in reasons for orders published on 10 September 2003. The second ground upon which the appellant claimed to be illegally detained is that he has, and still has, a valid bridging visa class A granted on 22 December 1995 which has not been cancelled, notwithstanding the decision of the respondent of 11 June 2002 and s 501F(3) of the Act. The appellant was given an opportunity to adduce evidence in support of his claim.
[3]He has produced the visa. He has also produced other material, much of which pre-dates the decision of 11 June 2002 and does not, in my view, advance his claim. The other document upon which he specifically relies is a letter from an officer of the respondent to the appellant and his family dated 16 December 2002 which relevantly reads …
His Honour then set out an extract from the letter dated 16 December 2002. It is clear that this was a copy of the same document that is now MFI-1. His Honour then referred to other correspondence that is not in evidence before me. His Honour said (at paras [4]-[12]):
[4]The officer of the respondent subsequently wrote to the appellant’s wife by letter of 18 December 2002. The letter said the earlier letter of 16 December 2002 was incorrect. It pointed out the appellant’s previous visa had been cancelled (no doubt referring to the decision of the respondent under s 501 on 11 June 2002 and the operation of s 501F(3)). It further pointed out that the appellant was not currently the holder of a bridging visa. It enclosed a corrected advice, which relevantly was in the following terms:
‘ADVICE TO PERSONS GRANTED A BRIDGING VISA B
(Protection Visa Applicants)
Name of visa holder(s): [the applicant’s wife]
[the applicant’s first child]
…
You are currently the holder of a Bridging Visa B.
Your Bridging Visa B will permit you to remain lawfully in Australia while your substantive visa application (ie. the application you have made for permanent residence in Australia) is decided.
Your Bridging Visa B (BVB) permits you to remain in Australia until 28 days after notification of the decision on your substantive visa application, or should you withdraw your application. If your application is refused, then the BVB continues to keep you lawful until 28 days after a decision on any application for merits review you may make.
…
POSSIBLE ENTITLEMENT TO REGISTER FOR MEDICARE
Persons who apply for permanent residency in Australia may be eligible to join the national Medicare health insurance scheme. Please note – an exception is applicants under the “aged parents” category, who cannot access Medicare unless their overseas country of residence has a reciprocal health insurance arrangement with Australia.
If you have not already done so, then it would be in your interest to make enquiries to your nearest Medicare officer, or telephone the Health Insurance Commission enquiry line – tel: 132011.’
[5]The appellant’s oral contentions are that the visa of 22 December 1995 remains in force as acknowledged by the letter of 16 December 2002, and that the effect of the decision made on 11 June 2002 under s 501 of the Act did not operate to cancel the bridging visa he then held, notwithstanding s 501F(1) and (3) of the Act, because it was a ‘protection related bridging visa’, and alternatively that the letter of 16 December 2002 evidences the grant of a fresh bridging visa class A.
[6]I do not accept the second contention. It is plain from the material adduced by the appellant that the visa which he claims still to be in force is that granted on 22 December 1995. Section 501F(1) and (3) provide:
‘(1)This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
…
(3)If:
(a)the person holds another visa; and
(b)that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.’
Subject to the first argument, the wording of the provision is clear. The respondent is taken to have decided to cancel the visa held by the appellant on 11 June 2002 by reason of the refusal of the application for a subclass 103 parent visa on the character ground under s 501 of the Act. The letter of 16 December 2002 does not amount to the grant of a fresh visa to the applicant. It is not expressed in those terms. There was no application then being considered by the respondent or officers of the respondent for the grant of a bridging visa to the appellant. He was not eligible to apply for such a visa: s 46(1)(d). An officer of the respondent could not administratively by correspondence override the operation of s 501F(3) of the Act.
[7]The appellant contends that the subsequent letter of 18 December 2002 misstates the reason for the letter of 16 December 2002. He points to material which, he contends, is not consistent with the letter of 16 December 2002 having been responsive to a request by the appellant’s wife for confirmation of eligibility to Medicare benefits. It is unnecessary to address that material for the reasons I have given.
[8]The primary argument involves reading into the words ‘protection visa’ in s 501F(3)(b) the words ‘protection related bridging visa’. It is not suggested that the bridging visa held by the appellant at 11 June 2002 was otherwise a visa specified in regulations for the purpose of s 501F(3) of the Act.
[9]There are provisions in the Act in which the expression ‘protection related bridging visa’ is used: see s 91X(1)(b) and (d). That term is defined in s 91X(3) to mean a bridging visa granted as a result of an application for a protection-related bridging visa. The term ‘application for a protection related bridging visa’ is also there defined to mean an application for a bridging visa, where the application for the bridging visa is, or has been, an application for a protection visa.
[10]The difficulty with the appellant’s contention is that it is a ‘protection visa’ only to which reference is made in s 501F(3) of the Act. Section 31 provides for there to be prescribed classes of visa. Section 36 specifically creates the class of visa known as protection visas. It specifies the criteria for eligibility for a protection visa. The appellant has not satisfied the Minister that he is eligible for such a visa. That decision has been upheld on review.
[11]I do not consider that the term ‘protection visa’ specifically described in the Act is intended to be used in a different sense in s 501F(3) to mean ‘a protection visa or a protection related bridging visa’. If that had been intended by the legislature, it could readily have so provided. I note that s 501F was inserted in the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) effective from 1 June 1999. It was not further amended when s 91X was introduced into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The purpose of s 91X is a refined and limited one, namely to prevent the publication of the name of a person who has applied for a protection visa, or who has applied for a protection related bridging visa, so as to avoid the risk of the publication of the name leading to the applicant for the visa being recognised as a refugee sur place by reason of the application.
[12]Consequently, I do not consider that the contentions of the appellant are correct. I formally refuse the orders sought in the appellant’s notice of motion of 4 August 2003. The appellant should pay to the respondent costs of the notice of motion.
His Honour refused to make the orders sought by the applicant who was ordered to pay the Minister’s costs.
The applicant’s appeal against the judgment of Finn J was heard by the Full Court on 21 November 2003. In the Full Court, Lander J (with whom Carr and Sundberg J agreed) referred (at para [5]) to the fact that the applicant was granted his “most recent bridging visa” in 1999. As I have already mentioned, Lander J noted (at para [7]) that a consequence of the Minister’s decision of 11 June 2002 was that the Minister was taken to have decided to cancel the applicant’s bridging visa. It is clear that Lander J was there referring to the bridging visa issued to the applicant in 1999.
In 2005, Lander J delivered judgment in [NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145 and [NBMV] v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2005] FCA 1147. I have already referred to that judgment and the reasons of the Full Court which dismissed the applicant’s appeal. The Full Court was satisfied (as was Lander J) that the applicant did not have a visa of any kind between 28 December 1999 and 30 March 2004.
Had the applicant argued before the primary judge that he had been granted a visa on or about 16 December 2002 that was still current, the argument would almost certainly have been rejected for the reasons given by Mansfield J in response to the same argument put to his Honour by the applicant some eight years ago.
I will admit MFI-1 into evidence. However, I am not satisfied in view of the matters to which I have referred that the applicant’s proposed appeal would be assisted by that document even if it was admitted into evidence by a Full Court at the hearing of an appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth).
SECTION 91X
Before me the applicant maintained that s 91X of the Act applies to his application for leave to appeal. The question whether s 91X applies in the present circumstances is not straightforward. I have therefore decided to give the applicant the benefit of the doubt and refer to him in these reasons as either “the applicant” or by the pseudonym used by him in his application for leave to appeal.
DISPOSITION
For the reasons explained above I am satisfied that the applicant’s proposed appeal has no prospects of success.
I will order that the application for leave to appeal be dismissed. The applicant must pay the respondents’ costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 15 October 2012
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