Singh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1356

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1356

MIGRATION – application by Indian Sikh in Australia on a one month business visa for refugee status – conditional bridging visa granted then cancelled for breach of the conditions – applicant taken into immigration detention – refusal of application for further bridging visa made to await decision of Minister under s 417 undetained – review sought by former Immigration Review Tribunal (IRT) which ceased to exist before decision – deemed application to Migration Review Tribunal (MRT) – decision of MRT affirming the decision not to grant a bridging visa made out of time – whether the applicant can be released from detention on the ground that the IRT and MRT had not determined his application within prescribed time – whether s 75 of the Migration Act applies to MRT reviews

Acts Interpretation Act 1901 (Cth), ss 12, 13
Migration Act 1958 (Cth), ss 75, 196(3), 367(1), 417, 477(2)
Migration Regulations, regs 2.24(2)(a), 4.26

HARVINDER SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 544 OF 1999

THE HON JUSTICE MARCUS EINFELD AO
1 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 544 OF 1999

BETWEEN:	HARVINDER SINGH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	1 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 544 OF 1999

BETWEEN:	HARVINDER SINGH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	1 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is an unmarried 31 year old Indian Sikh who arrived in Australia on 18 August 1996 on a business visa and was given permission to remain in Australia for one month. In this period, he lodged an application for refugee status which was refused on 23 May 1997. The refusal was affirmed on 25 November 1998 but for some reason the applicant was not deported. On 9 April 1999 he was granted a bridging visa on a number of conditions including that he not work but the visa was cancelled on 18 May 1999 for breach of the conditions especially that he was and had been working. He was taken into immigration detention in Brisbane and made an immediate application for a further bridging visa. The application was refused two days later, on 20 May, and on 23 May (a Sunday), he sought a review by the former Immigration Review Tribunal (IRT). On 31 May the IRT ceased to exist and was replaced as from 1 June by the Migration Review Tribunal (MRT). A hearing was held by the MRT in Brisbane on 8 June 1999 when the applicant gave evidence assisted by an interpreter. In a decision given on 16 June, the MRT affirmed the decision not to grant a bridging visa largely because it was not satisfied that the applicant would comply with the conditions that it would have imposed. It appears that the applicant is awaiting a decision by the Minister on an application under section 417 of the Migration Act 1958 (the Act) and the bridging visa was sought to enable him to do so undetained.

2. Under the legislative regime applicable prior to 31 May 1999, the IRT was required to decide reviews of refusals to grant bridging visas within 7 working days, meaning in this case that the IRT had until 1 or 2 June 1999 to deliver its decision.  On 7 June the applicant made an urgent application, and on 9 June he formally applied, to the Court for his release from detention on the ground that the IRT had not determined his application within the prescribed time.  On 18 June he sought to add to the application a request for a declaration that he is entitled to a bridging visa.  However, as the IRT ceased to exist on 31 May, there could have been no failure to deliver a decision on this matter within time.  Hence as pleaded the application must fail.

3. By virtue of the provisions of the legislation which brought the MRT into existence, duly made applications to the IRT which were not determined prior to 1 June 1999 were deemed to be duly made applications to the MRT on the date of its commencement.  Its legislative charter also fixes 7 working days for decisions on bridging visas.  Assuming in favour of the applicant that the application before the Court may be taken as complaining that the MRT failed to comply with its time limit for decisions on bridging visas, the time for a decision did not expire until 10 June 1999, or 7 working days after the deemed date of the application on 1 June.  The actual delivery of the decision on 16 June was thus 6 days beyond the prescribed time.

4. By section 196(3) of the Act, a Court cannot release a detainee without a visa. Clearly the applicant could not have been released when his application to the Court was made because not only did he not then have a visa but the time for the decision on it had not yet expired.

5. The filed application for release was based solely on section 367(1) of the Act which with irrelevant changes for present purposes, applied previously to the IRT as it does now to the MRT:

   Subject to subsection (2), if the application is for review of an MRT-reviewable decision covered by subsection 338(4), the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.

   Subsection (2) makes provision for an extension of time but only with the consent of the detainee.  There is no evidence that an extension was requested or given in this case.  Section 338(4) covers decisions to refuse to grant or to cancel a bridging visa of a non-citizen who is in detention because of that refusal or cancellation.  This case concerns such a decision.  The period prescribed, by Migration regulation 4.26, is 7 working days of the application. 

6. Section 367(1) appears in Part 5 of the Act dealing with reviews of decisions. As its terms indicate, the 7 day time limit applied to this case. However, the applicant’s submissions referred also to section 75(1) of the Act:

   If:

   (a)     an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and

   (b)     the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;

   the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.

   The period here prescribed, by Migration regulation 2.24(2)(a), is 2 working days.  

7. Section 75 is found in Part 2 of the Act headed “Control of Arrival and Presence of Non-Citizens”. It applies to non-citizens who upon arrival in Australia are found not to have or be immediately eligible for permission to enter and who are thereafter detained and apply to the Minister for a bridging visa allowing temporary release from detention. The applicant argues, by reference to sections 12 and 13 of the Acts Interpretation Act 1901 (Cth), that sections 75 and 367(1) operate together and are interconnected although he did not say what composite regime is thereby established in practical terms. What may be being asserted is that by the time of his application to the Court, the applicant was or ought to be deemed to have been granted a bridging visa and thus that the Court has power, and is bound, to order the applicant’s release. It would in that instance not be necessary, however, to declare his entitlement to a visa.

8. In my opinion, section 75 applies only to decisions not made by the Minister within 2 days, normally in respect of applications by recent detainees, and has no application to MRT decisions not made in time. Sections 12 and 13 of the Acts Interpretation Act have no relevance to and do not assist the construction of either section 75 or section 367(1). The only question, therefore, that this application raises is what consequence follows the failure of the MRT to deliver its decision on time and what if any remedy applies. The applicant’s position is that he must be released, apparently in contravention of section 196(3). The respondent said that mandamus would normally go to remedy such a failure although where the time limit is absolute, as here, there would in my view not be much point in seeking an order that an officer perform a duty that is no longer able to be performed. Moreover, it would not assist to resolve the present case because the duty to make “the decision” has now been performed.

9. On the other hand, section 477(2) of the Act permits an application to the Court, in respect of a failure of a person with a duty to make a judicially reviewable decision within a fixed time frame, for an order that the person has a duty to make the decision in spite of the expiration of the time. Tribunals are expressly excluded from this provision, and thus the Court cannot entertain the present application under its terms. In any case it would be futile here because the decision has now been made. More importantly, there is no deeming provision similar to section 75 applicable to the MRT and no other indication that the legislature was intending that a failure by the MRT to comply with its statutory time limit results in the automatic grant of a visa, no doubt because reviews at the instance of detainees presuppose an existing refusal.

10. When the application for release was made to the Court, there was no default by either the IRT or the MRT. By the time the hearing in this Court, which was by consent conducted solely on written submissions, had concluded on 23 June 1999, the decision had been given albeit out of time. If that decision is not nugatory, it is or was reviewable. As release from detention is prevented by section 196(3) in the absence of a visa, and no other relief is prescribed by the Act for the MRT’s failure to make its decision within time, any remedy for the applicant will have to be found outside the framework of judicial review.

11. The application is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:            1 October 1999

Solicitors for the Applicant:	Newman & Associates
Solicitor for the Respondent:	Australian Government Solicitor
Written submissions completed:	23 June 1999
Date of Judgment:	1 October 1999