Powell v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1683

FEDERAL COURT OF AUSTRALIA

Powell v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1683

Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 29, 85, 189, 196, 499

Migration Regulations 1994 cl 080.212

Al‑Kateb v Godwin (2004) 208 ALR 1099 considered
Businessworld Computer Pty Ltd v Australian Telecommunications Commission (1998) 82 ALR 499 cited
McDermott v BP Australia Ltd (1997) ATPR 41-547 cited
Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 distinguished
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 cited

MARISA POWELL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W207 of 2004

MARISA POWELL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W246 of 2004

RD NICHOLSON J
2 NOVEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W207 OF 2004 W246 OF 2004

BETWEEN:	MARISA POWELL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	2 NOVEMBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for interlocutory relief in W246 of 2004 dated 2 November 2004 be refused.

2.The applicant’s motion for interlocutory relief in W207 of 2004 dated 1 November 2004 be refused.

3.Costs 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W207 OF 2004 W246 OF 2004

BETWEEN:	MARISA POWELL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	2 NOVEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 30 August 2004 the applicant filed with the Court a claim for relief under s 39B of the Judiciary Act 1903 (Cth) in relation to what is said to be the failure by the respondent to grant to the applicant a Parent (Migrant) (Class AX) visa. The grounds in the application are that the applicant's application for the visa was filed on 10 July 1995 and was the subject of a successful application to the Migration Review Tribunal, so that the visa should have been granted in priority to other visa applications which were the subject of a direction by the respondent under s 499 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks a declaration that she is entitled to the grant of the visa, subject to meeting the relevant criteria. Additionally she seeks the issue of a writ of mandamus directing the respondent to consider and determine her application prior to consideration or determination of any other subsequent application of the same class in what has been described as the queue for such visa awards. Alternatively, she seeks an injunction directing the respondent to consider and determine the applicant's application for a visa prior to consideration and determination of any other subsequent application of the same class in the queue.

2. The applicant supported her application by an affidavit (sworn on 31 August 2004) in which she stated that she was born in England on 19 June 1960 and has been living in Australia since July 1992.  In the affidavit it is stated that she made her application for migration to Australia under nominal sponsorship of her daughter, Jasmine - a child who was born in Australia on 12 October 1994, and the sponsorship of charitable institutions with whom the applicant has worked.  Her application was refused.  Subsequently on 31 March 2004 she succeeded in a review before the Migration Review Tribunal (‘the Tribunal’).  However, she was then advised by the respondent’s Department that there was a further obstacle in her way of attaining the visa, namely, ‘the balance of family test’.  As a consequence, she sought an interlocutory injunction restraining the respondent from taking steps to detain or deport her pending the determination of her application for a visa.

3. That interlocutory application was heard by Lee J on 20 March 2003.  The applicant again supported her application with an affidavit in which she set out circumstances of her treatment in these processes and the stress and anxiety being caused to her daughter.  Lee J granted orders of the nature sought by the applicant.  They are in similar vein to those sought today.

4. After various communications with the Department, the applicant has again been advised of difficulties in her path.  She was informed that the queue date from which her application would receive consideration was 12 September 2000.  However, subsequently she was advised the queue date was 1 July 2004, based on the date of her initial refusal being 22 November 1996.  Those are the circumstances behind the challenge in her application to the respondent's apprehension of the queue date and the order in which her application should be dealt with. 

5. Therefore, the applicant, facing the difficulties of her application not having been processed, once again seeks interlocutory relief before this Court.  The first interlocutory relief sought is that referred to in a notice of motion filed on 1 November 2004, in which the applicant seeks to restrain the respondent from detaining the applicant or deporting the applicant from Australia pending the resolution of these proceedings. 

6. The second way in which the applicant seeks interlocutory relief is by a further application lodged by her on 2 November 2004.  There the applicant claims, first, the issue of a mandatory injunction directing the respondent to grant the applicant's application for a bridging visa E, and second, an order that the respondent be restrained from detaining the applicant or removing the applicant from Australia.  That application seeks relief in relation to what is said to be the refusal by the respondent to consider the applicant's application for a bridging visa E.

7. The first of the interlocutory applications to which I have just referred is supported by an affidavit of the applicant.  She states that on 29 October 2004, she attended the Perth offices of the respondent’s Department because her current bridging E visa, which had been granted to her on 31 August 2004, was due to expire on Sunday, 31 October 2004.  She attended the offices of the Department to make the application in what she said was the usual manner.  She was told by a compliance officer that she would not be granted a further bridging E visa. 

8. In the same affidavit, the applicant updates the circumstances which have occurred to her since 20 March 2003, that being the date upon which Lee J granted interlocutory relief.  There she states that while both her agents and herself regarded it as inconceivable that she would not be successful in obtaining her visa, she recognises that if she is unsuccessful she will have no choice but to leave Australia, notwithstanding her belief that this would cause irreparable emotional distress to her daughter and consequently to herself.  She states that she recognises that in any event the law requires her to be offshore when the visa is granted and she indicates she will make arrangements to be offshore, on the basis they will require her to be out of Australia for only a few days.

9. Additionally there is an affidavit from the applicant, supplementary to her first affidavit, in which she states that through her workplace she has maintained a current open airline booking for her to go to Singapore and that remains valid until the end of November 2004.  She states that she was required to produce evidence of this booking when she made an application for a bridging E visa renewal in July 2004.  She was not required to produce such evidence when she made application for a further renewal on 30 August 2004, although she stated she was required to acknowledge that the airline booking was still valid when she made that renewal application. 

10. She further states that when she sought a renewal of the visa on 29 October 2004 she was not asked about the airline booking, as she was not given the opportunity to complete the necessary forms to renew the visa.  Further, she states that as she has previously done, that when the airline booking expires at the end of November 2004, she will, through her workplace, make arrangements for the booking to be renewed for whatever period is necessary. 

11. Also filed with the first interlocutory application is an affidavit of Colleen Anne Martin, sworn on 1 November 2004.  Ms Martin is a solicitor in the employ of the applicant's solicitors.  She makes available to the Court various annexures. 

12. When the first application for interlocutory relief came before Lee J, he inquired of the respondent on a number of occasions why a bridging visa could not be granted.  He was told by counsel for the respondent that a bridging visa could not be granted on the basis that the application for the parent visa had been made offshore.  He also asked why it could not be extended again and received the same response.  He put to the respondent's counsel that if the arrangements made for the air ticket had been a satisfactory arrangement on past instances of renewal, why would it not be a satisfactory arrangement on the basis that it would be able to be activated up until the point of the new nominated time for the expiry of the E‑class visa.   The respondent’s counsel advised him that removal may be discretionary and no consideration may be given to the grant of a bridging visa until after a period of detention.

13. Visas are granted according to the Act, in particular Div 3 of Pt II which deals with visas for non-citizens. Section 29 makes it apparent that subject to the Act, the Minister may grant a non-citizen permission - to be known as a visa - to either travel to and enter Australia, or to remain in Australia. It is within that statutory context that the issues on the present interlocutory applications now arise.

14. The Migration Regulations have the effect of making certain criteria applicable to the grant of a bridging visa. Clause 050.212 contains the relevant statement of such criteria; that is common ground. It is provided in par (1) of that clause that, for such a visa to be granted, the applicant must meet the requirements of one or other of a number of subclauses. It is not in dispute here that the subclause which the applicant seeks to meet, and claims to be able to meet, is that stated in (2), namely:

    ‘An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.’

    While other clauses deal with applicants who have applied for judicial review, or have certain family connections or considerations in relation to Australia, it is not in dispute between the parties that in their terms none of those other clauses presently appear applicable to the applicant.  Subclause (2), of course, makes potentially relevant the evidence which the applicant has given concerning the making of the arrangements for a ticket, which was the subject of enquiries by Lee J on the interlocutory application before him.

15. It is well-established law that injunctive relief requires a court generally to bring into consideration whether there is a serious issue to be tried and where the balance of convenience lies. The jurisdiction of this Court to grant such relief derives from s 23 of the Federal Court of Australia Act 1976 (Cth). That is not in dispute. What has arisen in the course of argument is the question as to whether the powers to grant interlocutory relief pursuant to that section could properly be exercised in any of the ways which the applicant seeks to have them exercised.

16. Counsel for the applicant has been unable to find any decision in which interlocutory or injunctive restraint has occurred in relation to the powers of detention under the Act. Those powers appear in Div 7 of Pt II of the Act dealing with the control of arrival and presence of non-citizens. Section 189(1) provides that:

    ‘If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.’

    That is to be read in particular with s 196, which sets out, in seven subclauses, requirements of Parliament in relation to the duration of detention. It provides in subs (1) that:

    ‘An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
    (a)      removed from Australia under sections 198 or 199; or
    (b)      deported under section 200; or
    (c)       granted a visa.’

    Parliament then enacted two further subsections, said to be to avoid doubt, providing that subs (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen, but it does prevent the release - even by a court - of an unlawful non-citizen from detention unless the non-citizen has been granted a visa. There are further provisions in relation particularly to those persons who have had a visa cancelled on character grounds under s 501, or are facing deportation, as to what might be generally called ‘dangerous persons’ provisions under s 200. Subsection (5A) provides that those two subsections do not effect by implication the continuation of the detention of a person to whom those subsections do not apply.

17. In Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249, Black CJ, Sundberg and Weinberg JJ considered whether there was anything in the language of s 196(3) which prevented the Court from ordering the release, on an interlocutory basis, of a person who establishes that there is a serious question to be tried regarding the lawfulness of that person's detention. The Court concluded it would require language of much greater clarity than any contained in that subsection to deprive the Court of the general power to grant interlocutory relief, being the power conferred by s 23 of the Federal Court Act. The members of the Court rejected the proposition that s 196(3) expressly abrogated the s 23 power in the Federal Court of Australia Act 1976 (Cth) in relation to persons kept in immigration detention. The Court stated that the subsection was silent as to the power of the Court to grant interlocutory relief in circumstances where a person in detention claims not to be an unlawful non‑citizen. Whether a person is an unlawful non-citizen is, as the Minister conceded in that case, ultimately a matter for the Court to determine.

18. Subsequently to that decision, the High Court handed down reasons in Al‑Kateb v Godwin [2004] HCA 37. That occurred on 6 August 2004. That, in effect, set aside the authority in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, which was to the effect that there were limits on the terms for which detention could continue where there was no real prospect of removal from Australia in the reasonably foreseeable future. The High Court found that the unambiguous language of s 196, and particularly subs (3), indicated that Parliament intended detention to continue until one of the conditions expressly identified therein - namely removal, deportation or the grant of a visa - is satisfied.

19. In the course of his reasons, McHugh J said at [48]:

    ‘Nothing in sections 189, 196 or 198 purports to prevent courts, exercising federal jurisdiction, from examining any condition precedent to the detention of unlawful non-citizens.’

20. At [254], Hayne J said:

    ‘It is important to notice, however, that the sections now in question...require, rather than authorise, detention.  True it is that the requirement is made of the Executive: an "officer" must detain.  But the provision is mandatory; the legislature requires that persons of the identified class be detained and kept in detention.  No discretion must, or even can, be exercised.  No judgment is called for.  The only disputable question is whether the person is an unlawful non-citizen.  And the courts can readily adjudicate any dispute about that.’

21. The question whether any interlocutory relief arising under s 23 could be exercised in relation to detention arising under s 189 is not, as has been said, the subject of any precedent. It is to be approached, says Counsel for the applicant, in the light of the reasoning of the Full Court in VFAD. It is said that there is nothing in s 189 which unequivocally, in the manner required by that section, excludes the exercise of powers arising under s 23 in relation to the issue of detention.

22. There are some prima facie reasons why interlocutory relief would not in any event lie, or not in the present circumstances lie, quite apart from that issue of the effect of s 189(1) of the Act considered in its context. The first of those is that the injunctive relief would seek to restrain action by an officer knowing, or reasonably suspecting, that the applicant was an unlawful non-citizen and intending to detain her. That is future action of which there is no evidence.

23. However, there is the evidence that the bridging visa of the applicant expired on 31 October, so that she is now an unlawful non-citizen. That is not in dispute. It motivates the applications. Also, it is said the injunction could be satisfactorily formulated so as to be directed to the respondent, requiring the respondent not to pass information which would activate an officer pursuant to s 189(1), whether from within the respondent’s own Department or within the category of officers as defined in s 5 of the Act.

24. On this issue the respondent submits that particular regard must be had to what was said by Hayne J at [254] in Al-Kateb and that the power should not lie to restrain detention.  However, the principal argument for the respondent is that because it is an accepted fact that the applicant is an unlawful non-citizen, who by both applications is saying that she should have been granted the visa, she is admitting a in state of unlawfulness.  Therefore it is said for the respondent that this is not a case where the unlawfulness can be challenged at this point in time within the reasoning of VFAD; that is because there is no challenge to the applicant's status as an unlawful non-citizen, the reasoning in VFAD is not applicable here.

25. The applicant contends in response that the unlawfulness has occurred for precisely the reasons sought to be challenged in the two applications; namely, the problem with the queuing which, if it had been properly dealt with on the applicant's case, would have led to a grant to her at an earlier date of the parent visa.  In the second application what is challenged is what is said to be the refusal to consider the applicant's application for a bridging visa E; that is, when she was informed she would not be granted a further bridging visa E, which is said in the application ‘should be understood as a refusal to consider and grant the application’. 

26. In my view the submissions for the applicant do not take account of the complexity of the provisions of the Act. I accept the submission for the respondent that the manner in which visas are granted and delegates of the respondent take action to grant a visa, is as a result of their satisfaction on a number of matters. These vary from visa to visa but in the case of the present second interlocutory application, the applicant is not challenging her status as an unlawful non‑citizen.

27. What she wishes to challenge is the exercise of discretion by the Minister to refuse her a bridging visa E.  I am conscious that the applicant says, as do in the reasons of Lee J – to which words I have previously referred, that interlocutory mandatory injunctions would be more likely to issue where a defendant was compelled not to embark upon a fresh course of conduct but to embark on a course of conduct pursued before the occurrence of the acts or omissions that provoked the litigation.  That was stated by Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 and was noted by Drummond J in McDermott v BP Australia Ltd (1997) ATPR 41-547. That may be so, and it is a significant discretionary consideration, but the advice by a delegate that a new bridging visa E would not be granted is not a challenge as such to the unlawful non-citizen status of the applicant. Had a bridging E visa been granted, it would have the effect of bringing an end to the unlawful status of the applicant, but at the point in time at which the interlocutory relief is sought, the applicant is an unlawful non‑citizen, and I do not consider that she is in that respect in the same position as that referred to in VFAD.

1. Likewise in relation to the first application, the applicant contends that she would have been granted the visa if she had been dealt with properly in the queue.  However, in the paragraph of the application which I have read, the applicant acknowledges that the grant is subject to meeting the relevant criteria for the grant.  That is an issue which is discretionary and which cannot of itself be controlled by a court.

2. In my view, the fact that the applicant is presently an unlawful non-citizen and that that is common ground is fatal to an application to restrain detention.  I make no ultimate finding on the issue of law whether restraint of detention would in any event be open.  I do not make any findings of fact as to whether detention will occur and, if so, whether it would warrant and allow the balance of convenience properly to tip in favour of the applicant.

3. As to deportation of the applicant, there is no evidence of her pending deportation.  I reserve any view on the question if the applicant is detained whether she would be entitled to interlocutory relief on the basis that VFAD may apply in those circumstances. 

4. In relation to the application for a mandatory injunction for the issue of the bridging visa E, being the first of the reliefs sought in the second application, for reasons which I have just given - namely the statutory contents of the scheme by which visas are granted, one evidencing a high level of discretion - I do not consider that any case has been made in the present circumstances for the issue of a mandatory injunction for such a visa.

5. I have tried in the last two days to obtain from the respondent some practical approach, much in the same way as Lee J required in his reasons given in March 2003. As has been pointed out for the respondent, s 189 may not necessarily be one in relation to which the respondent herself could reasonably give instructions for any undertaking. It may be exactly that which has led to the absence and complete paucity of any precedent on the exercise of interlocutory powers in relation to detention. In the end I have not resolved the matter on that issue, because, as I have said, I consider the respondent is correct in stating that the accepted unlawful non-citizen status of the applicant has the consequence of distinguishing her case.

6. It would seem that it would be appropriate for some possible accommodation to be sought by the parties.  That is because the applicant is proceeding on the basis of knowledge communicated to her that aside from the satisfaction of the conditions to which her application refers she has, following the decision of the Tribunal and the subsequent dealings with the issue of balance of family test, met the requirements for the visa.

7. I have been told by the respondent that consideration is being given to the advancement of the date on which that visa may be granted.  It would seem to me that that is a matter which should receive urgent further consideration. 

8. For these reasons I decline to make the interlocutory relief in the first or second applications.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             17 November 2004

Counsel for the Applicant:	MN Solomon with GS French
Solicitors for the Applicant:		Gadens Lawyers
Counsel for the Respondent:		PR Macliver
Solicitor for the Respondent:		Australian Government Solicitor
Date of Hearing:		2 November 2004
Date of Judgment:		2 November 2004