Nguyen v Minister for Immigration & Multicultural Affairs

[1999] FCA 1874

FEDERAL COURT OF AUSTRALIA
Nguyen v Minister for Immigration & Multicultural Affairs
[1999] FCA 1874

IMMIGRATION – Unlawful non-citizen – Application for interlocutory order restraining detention and removal from Australia – Whether officer of Department of Immigration and Multicultural Affairs has power to remove applicant from Australia – Whether a person who has applied for a bridging visa is a person who did not apply for a visa “in accordance with” s195 of Migration Act 1958.

Migration Act 1958, ss195 and 198.

NGOC THIEN NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1488 of 1999

WILCOX J
SYDNEY
23 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1488 of 1999

BETWEEN:	NGOC THIEN NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	23 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Without prejudice to any later application that may be made, the application for an interlocutory order restraining the applicant’s removal from Australia and his continuing detention be refused.

2.The matter be listed for mention on Monday, 31 January 2000.

3.The costs of the interlocutory application be reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1488 of 1999

BETWEEN:	NGOC THIEN NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	23 DECEMBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  Application is made to the Court, on an urgent basis, on behalf of Ngoc Thien Nguyen, who is apparently a citizen of Vietnam.  He entered Australia on 18 March 1998 on a transit visa valid for 3 days.  He overstayed the transit visa.  He made no application for any other type of visa until after he was taken into custody on 7 December 1999, apparently in connection with a complaint by the owner of premises where he was living.  It apparently came to the knowledge of persons in authority that Mr Nguyen was an unlawful non-citizen.  He was removed to the Immigration Detention Centre at Villawood where he remains. 

2. Provision 7 of Part II of the Migration Act 1958 provides for certain formalities when an unlawful non-citizen is taken into custody. In particular, under s194, an officer must ensure that the person is made aware of the provisions of ss195 and 196 of the Act. Section 195 contains provision for applications for a visa and s196 deals with detention. It is expressly conceded by Mr Zipser, counsel for the applicant, that s194 was complied with in the present case. It is also conceded that the applicant did not, within 2 days of compliance with s194, make an application, or foreshadow an application, for a substantive visa; indeed, as I understand the situation, any visa.

3. However, yesterday, 22 December 1999, an application was made for a bridging visa.  This was some 14 days after the applicant was taken into detention and less than 48 hours before his projected deportation from Australia.  This has been fixed for a flight leaving Sydney for Hanoi at about 11am tomorrow.

4. Apparently, the applicant would prefer to leave Australia voluntarily.  But he is not prepared to do this until about the end of January; and in the meantime wishes to be at large in order that he can make inquiries about property belonging to him that was in the flat from which he was removed at the time of being taken into custody.  I am informed by Mr Markus, solicitor for the Minister, that the persons who removed Mr Nguyen and others from the flat were not officers of the Department of Immigration; and this is consistent with the evidence.  Mr Markus has no instructions about the property.  Possibly it has never come under the control of anybody representing the Department.

5. However that may be, the question arises whether there is a serious question as to the legality of Mr Nguyen’s detention and proposed removal from Australia.  Mr Markus has questioned the jurisdictional basis of the application; but it is clear that the Court has jurisdiction under s39B of the Judiciary Act, so I need not trouble further with that matter. 

6. As Mr Zipser concedes, his case comes down to reliance upon an argument as to the proper interpretation of s198(5) of the Migration Act.  This is the provision under which the Minister justifies the proposed removal of the applicant from Australia.  Subsection (5) is as follows:

   “s198(5)An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

   (a)        is a detainee; and

   (b)was entitled to apply for a visa in accordance with section 195 but did not do so.”

7. As I understand the position, it is conceded that the applicant is an unlawful non-citizen. It is also conceded that he is a detainee. The question is whether he was a person entitled to apply for a visa in accordance with s195 but failed to do so. Mr Zipser's argument is that he did not so fail because he has applied for a bridging visa. This brings one back to consideration of s195. That section is in the following terms:

8. “195(1)  A detainee may apply for a visa:

   (a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

   (b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply - within the next 5 working days after those 2 working days.

   (2)A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.”

9. Mr Zipser concedes that subs (1) does not assist his client. However, he says that there is reference in subs (2) to a bridging visa. Accordingly, a bridging visa is: “a visa in accordance with section 195” within the meaning of s198(5). I do not accept this interpretation of s198(5). I agree that a bridging visa is a “visa”; but I think the words: “In accordance with section 195” are intended to refer to the type of visa for the application of which s195(1) makes provision. The words are concerned with a substantive visa of which notice was given within 2 working days after s194 was complied with. I do not think the words were intended to cover a bridging visa, application for which may be made at any time.

10. I have two reasons for my conclusion. One is that the words “other than a bridging visa or a protection visa” are inserted (in s195(2)) merely by way of exception. Subsection (2) does not confer an entitlement to apply for either of those visas; it merely excludes those visas from the general prohibition contained in subs (2) on a visa application being made outside the time limits fixed by s195(1).

11. A further consideration is that, if Mr Zipser's submission was correct, there would be no power whatsoever to remove from Australia a person who has made an application for a bridging visa. Subsection (6) of s198 deals with the situation where a person has made an application for a substantive visa. As one might expect, the power to remove is limited to a situation where the visa has been refused or where it is unavailable. A bridging visa is not a substantive visa, see the definition of that term in s3 of the Act. Accordingly, subs (6) does not apply, as Mr Zipser concedes; neither do any of the other subsections in the Act. It would be curious in the extreme if, in the eminently foreseeable situation of a person who is under threat of imminent deportation making an application for a bridging visa, there was then no right to remove the person, whatever the fate of the application for the bridging visa. This circumstance supports the view, which I would in any event come to as a matter of construction, that s198(5) does not include a reference to an application for a bridging visa.

12. It seems to me, therefore, that the only basis upon which there is a question about the lawfulness of the removal from Australia is one that is not seriously arguable.  Accordingly, there is no basis for the Court intervening to restrain the projected action. 

13. Mr Zipser has given a personal undertaking that the Application, which has been informally produced to the Court, will be filed this afternoon.  The matter will then be given a number and a file opened in the usual way.

14. It is conceivable some other eventuality will occur in relation to Mr Nguyen before the deportation.  I will therefore not dismiss the Application at this stage.  It is convenient to allow it to remain on foot.  The only order I make, at this stage, is that the application for an interlocutory order be refused.  That refusal is without prejudice to any later application that might be made.  As to the principal proceeding, I will stand that over for mention before the Duty Judge in the week commencing 31 January next, unless the case is sooner before the Court.  I will put the matter in for mention on Monday, 31 January but there will be liberty to apply on an urgent basis in the meantime if necessary.  I reserve the costs of the application today.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            23 December 1999

Counsel for the Applicant:	Mr B Zipser
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 December 1999