VHAF v Minister for Immigration and Multicultural and Indigenous Affairs - [2002] FCA 1243

FEDERAL COURT OF AUSTRALIA
VHAF v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 1243
MIGRATION – protection visa – decision record signed by delegate of Minister – undated – not communicated – whether grant of a visa – whether applicant entitled to release from immigration detention – whether Court has jurisdiction in proceeding for declarations that visa granted, applicant a lawful non-citizen since its grant and applicant entitled to release upon its grant – whether applicant has standing – power of Court to order release pending hearing and determination of application – whether balance of convenience favours release – acceptance of undertakings – whether Court should exercise discretion not to order release
Acts Interpretation Act 1901 (Cth) s 15AB
Federal Court of Australia Act 1976 (Cth) ss 21, 23
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5(1), 13(1), 14(1), 29, 30, 31, 36, 46, 47, 65, 66, 67, 68, 70, 71, 84, 91X, 94, 95, 116(1)(a), 189, 196, 198, 199, 208, 209, 411, 474, 476, 477, 479, 486C, 496, 499
Migration Regulations 1994 (Cth) reg 2.17, Sch 2 items 785 and 866, Sch 4 items 4001, 4002 and 4003
Commonwealth Constitution s 75(v)
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 - applied
Goldie v Commonwealth of Australia [2002] FCA 433 - distinguished
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] 34 FCR 169 - cited
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 - distinguished
Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 - distinguished
Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 762 - distinguished
Ruddock v Vadarlis [2001] FCA 1329 (2001) 110 FCR 491 - cited
Applicant VFAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1062 - applied
VHAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 594 of 2002
JUDGE:        GRAY J
DATE:          8 OCTOBER 2002
PLACE:        MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 594 of 2002

BETWEEN:

VHAF
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

20 SEPTEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT NOTES that the applicant by his counsel has undertaken to the Court:
(a)       to submit to such order (if any) as the Court may consider to be just for the payment
           of compensation, to be assessed by the Court or as it may direct, to any person,
           whether or not a party, adversely affected by the operation of the interlocutory order
           or undertaking or any continuation (with or without variation) thereof; and
(b)       to pay the compensation referred to in (a) to the person referred to.
THE COURT ALSO NOTES that the applicant has undertaken to the Court that he will:
1.        accept release into the care of the Hotham Mission at 2 Elm Street, North Melbourne,
           in the State of Victoria;
2.reside at [Note: publication of the address at which the applicant undertook to reside has been prohibited by paragraph 2 of the order below];

3.        notify the Department of Immigration and Multicultural and Indigenous Affairs of
           any change of his residential address within twenty-four hours of the date of such
           change;
4.        report every Thursday, commencing on 26 September 2002, between 9.00 am and
           4.00 pm to the Department of Immigration and Multicultural and Indigenous Affairs
           at Casselden Place, 1 Lonsdale Street, Melbourne;
5.        not leave the State of Victoria without permission of an officer in the Compliance
           Section of the Department of Immigration and Multicultural and Indigenous Affairs;
           and
6.        attend the Federal Court of Australia upon the determination of this proceeding by the
           Court.
THE COURT ORDERS THAT:
1.        Until the hearing and determination of the proceeding or further order, the respondent
           whether by his servants, agents or howsoever otherwise, be restrained from
           continuing to detain the applicant in immigration detention under the Migration Act
           1958.
2.        There be no publication of the address at which the applicant undertakes to reside.
3.        Liberty to apply be reserved.
4.        The costs of the application for interlocutory orders 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

VICTORIA DISTRICT REGISTRY

V 594 of 2002

BETWEEN:

VHAF
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

GRAY J

DATE:

8 OCTOBER 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
The nature of the proceeding

This application for interlocutory orders raises issues similar to those dealt with in the judgment of Merkel J in Applicant VFAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1062. It is an application for an injunction restraining the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) from continuing to detain the applicant in immigration detention, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
The proceeding was instituted by the filing of an application on 12 September 2002. The principal relief sought in that application was a declaration that, “on [sic] or about November 2001”, the applicant was granted a Protection Visa (Class XA) Subclass 785, and a declaration that, “on [sic] and from November 2001”, the applicant was and remains a lawful non-citizen. By means of an amended application, filed on 17 September 2002, the applicant added a claim for a declaration that, on and from 30 November 2001, he has been unlawfully detained.
On 18 September 2002, the applicant moved the Court for interlocutory orders by way of injunctions, restraining the Minister from continuing to detain the applicant in immigration detention and from removing him from Australia. In the course of the hearing of the application for interlocutory orders, counsel for the Minister made a clear statement that it is not the Minister’s intention to remove the applicant from Australia pending the hearing and determination of the present proceeding. Counsel for the applicant therefore did not press the application for an interlocutory injunction restraining his removal. They invited the Court to enjoin the Minister from continuing to detain the applicant. They offered on behalf of the applicant undertakings that would, if thought fit, constitute conditions of his release. The undertakings were designed to ensure that he would receive adequate support and would not disappear.
At the close of argument on 18 September 2002, I indicated that I proposed to grant an injunction, restraining the Minister from continuing to detain the applicant, upon the basis of the undertakings offered. Argument then ensued about the appropriate place for release of the applicant’s release, in order that he could abide by his undertakings without undue difficulty. That argument involved a question as to whether the Court could order the Minister to bring the applicant from his place of detention at the Baxter Immigration Reception and Processing Centre (“the Baxter Centre”), near Port Augusta in South Australia, to Melbourne and how the costs of such transport would be met. In turn, this raised the issue of an undertaking in damages by the applicant, in respect of which counsel for the applicant did not have instructions. (The applicant witnessed most of the hearing by video-conference link from the Baxter Centre, but speaks little or no English and did not have the entirety of the hearing interpreted to him, because the interpreter was in the courtroom in Melbourne.) I therefore adjourned the further hearing of the application until 20 September 2002 and directed that the Minister bring the applicant to the Court in Melbourne for the purpose of having him present on the resumption of the hearing. On 20 September, I accepted undertakings from the applicant and made orders. I reserved my reasons, for the purpose of expressing them with greater clarity and precision than would have been possible otherwise. These reasons for judgment are the reasons for the accepting of those undertakings and the making of those orders.
Publication of the applicant’s name
As the applicant is a person who has applied for a protection visa, s 91X(2) of the Migration Act prohibits the Court from publishing, in electronic form or otherwise, in relation to the proceeding, the applicant’s name. Accordingly, he has been allocated the pseudonym VHAF.

In the course of the hearing, counsel for the Minister sought an order restricting publication of the applicant’s name other than by the Court. They submitted that the purpose of s 91X of the Migration Act is to prevent information about an asylum seeker coming to the notice of those in his or her country of origin who might wish to do harm to the asylum seeker. The Minister’s counsel referred to the explanatory memorandum relating to the bill by which s 91X was inserted into the Migration Act. Another possible, but unstated, purpose of s 91X may well be to restrict the possibility of claims of a need to remain in Australia based on the public exposure of the facts and alleged facts of the cases of those who apply unsuccessfully for protection visas. At all events, counsel for the Minister did not advance any particular reason why the name of the applicant should be suppressed to any greater extent than is required by s 91X. In particular, they did not show any reason why the applicant, or those representing him if they had his consent, should not be able to use his name in relation to publication of any account of the proceedings in this Court. Counsel for the Minister referred to the mention of the applicant’s name in open court. The evidence, so far as it goes, is that the applicant adopted a surname after arriving in Australia and that he did not have a surname at all prior to that adoption. If that be the case, it is hard to see how the mention of his name in open court, or even its subsequent publication in transcript by the Court’s transcript contractor, could possibly cause any harm to the applicant. Those in Afghanistan who know him or know of him would be unlikely to recognise him by that surname. No cogent reason was therefore advanced for any diminution of the principles of open justice beyond that brought about by s 91X itself. I therefore declined to make the order sought.
The facts
The applicant claims to be a citizen of Afghanistan of the Hazara ethnic group and a Muslim of the Shi’a faith. He arrived in Australia on 7 March 2001 on a boat from Indonesia, without any visa entitling him to enter Australia. It is therefore common ground that he was an unlawful non-citizen, for the purposes of the Migration Act, and that he was properly taken into detention at the Curtin Immigration Reception and Processing Centre (“the Curtin Centre”). His initial interview took place at the Curtin Centre on 24 March 2001. On 10 July 2001, he indicated that he wished to apply for a protection visa and requested assistance in that application. As a consequence, on 24 July 2001, he met with a solicitor and migration agent employed by the Refugee and Immigration Legal Centre Inc, who assisted the applicant to prepare a formal application for a protection visa. The application was dated 24 July 2001.
It fell to Steven Thompson, a case manager attached to Team 4 of the Onshore Protection Section, Sydney, in the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) to deal with this application. Mr Thompson interviewed the applicant on 30 July 2001. He proceeded to request from other officers of the Department information of various kinds. Mr Thompson sought an effective protection check by email on 7 August 2001. On 10 August 2001, he sent a minute, seeking a language analysis, noting that the applicant had previously been assessed as to his language. Mr Thompson procured and placed on the Department’s file relating to the applicant a radiological report on a chest x-ray, undertaken on 25 March 2001. He also obtained a pathology report relating to blood tests for a number of medical conditions, the samples for which had been collected from the applicant on 21 March 2001. He obtained information about various other tests, including tests for tuberculosis and malaria. He put in train a process for character assessment. He received an extensive submission from the applicant’s solicitor and migration agent, dated 23 August 2001 and a report on the applicant’s language analysis dated 27 August 2001.
On 9 November 2001, Mr Thompson sent an email to the Program Management Unit, saying as follows:
“[The applicant] has the PIC 4002 check as the last outstanding check. I have received no significant information or dob-ins in relation to names/aliases used, date of birth changes, family composition changes, or other information, such as PV claims, in respect of this applicant.
I am satisfied the applicant is an Afghan national as claimed, and that he has a well founded fear of persecution in Afghanistan, such that Australia owes him protection obligations. CUL098 has recently received a language analysis report which states, on two occassions [sic], that “the person has most probably his language background in Afghanistan”. It adds that “his slightly Pakistani-influenced accent is probably due to the fact that he has lived in Pakistan for some time…”. I am satisfied after interviewing the client that he is infact [sic] from Afghanistan as claimed.
Consequently, I am requesting the expedition of the PIC 4002 check.
I await your response at your earliest convenience.”
On the same day, in another email, Mr Thompson advised another officer of the Department as follows:
“[The applicant] is an applicant for a temporary Protection visa (XA785).
·I have determined that he does meet the 1A assessment.
Effective Protection – a Nationality / ID check has been initiated in Pakistan due to aspects of his first language anaylsis [sic] report.
·EFP Nat/ID - Pakistan - CIS Request No: 2815 - Date check initiated with PDSS: 07/08/01
As per the recommendation in the policy advice of 9 March 2001 on ‘Revision of Fraud and Effective Protection                  Checking Procedures’, I request permission to finalise this case without having received the result of the above
Effective Protection – Nationality / ID check. However, I request that the checks be continued and the results be                   considered in any future decision making for this applicant.

1.        The above Effective Protection Nationality / ID check is the last remaining outstanding checks [sic] for this applicant.
2.        It has been 18 weeks since date of application.
3.        It has been 13 weeks since the check was requested.
4.        There is little likelihood of obtaining the results of this Effective Protection – Nationality /ID check within a   reasonable time ( as per Minute dated 9 March 2001).
5.        The results of these checks are not crucial to making my decision on this case.
6.        I confirm that the applicant has signed the Effective Protection statutory declaration and this declaration is on file               number CLF2001/37301, folio number 41.
7.        The results on language analysis tests have been received and considered.
8.        Any intelligence information received has been considered.
·I will not finalise this case until I have completed the review of the need for the check with the Director of   PDSS.”
By email in reply, the other officer of the Department requested Mr Thompson to proceed with the case. There was also a reply in relation to the PIC 4002 check, asking about the time the applicant spent in Pakistan. Mr Thompson replied to this email on 13 November 2001, to the effect that the applicant had only ever spent fourteen days in Pakistan. His language had been influenced by exposure to people who spoke with Pakistani and Iranian accents in the course of his work in a market.
On 30 November 2001, Mr Thompson sent an email attaching a summary of the case to date and requesting that he be allowed to finalise the case “without EFP or UN”. He also received a further medical report from the Perth Chest Clinic.
On 7 December 2001, Mr Thompson signed a typed document bearing the heading “PROTECTION VISA DECISION RECORD” (“the decision record”). The decision record related to the applicant. It was in the form of a decision, adverting to the requirements for a protection visa, listing the evidence relied on by Mr Thompson, and setting out an assessment of specific claims, a decision on protection obligations and a decision on the Protection (Class XA) visa application. The bulk of the decision record was occupied by the assessment of specific claims. It expressed a finding that the applicant had not been immigration cleared and therefore was ineligible to be granted a Subclass 866 (Protection) visa. His application would therefore be assessed against the criteria for the grant of a Subclass 785 (Temporary Protection) visa. The decision record expressed a finding that the applicant was not excluded under Art 1D of the Refugees Convention, nor under Art 1F of that Convention. It stated that, after carefully considering the range of information given in relation to the applicant’s country of citizenship, Mr Thompson was satisfied that the applicant is a citizen of Afghanistan. The decision record then set out findings that the applicant did have a fear of harm or mistreatment on return to Afghanistan on account of his race and religion and that the harm or mistreatment that the applicant feared was of sufficient gravity to constitute persecution. It said that Mr Thompson had carefully examined the information supplied by the applicant. After discussing information about the appearance and language of Hazaras living in Afghanistan, independent information about Afghanistan, information supplied by the applicant and a linguistic analysis, the decision record expressed Mr Thompson’s satisfaction that the weight of evidence indicated that the applicant was an Afghani Hazara and a Shi’a Muslim. It noted that:
“The applicant is at risk as a Hazara, and as a Shia Muslim. … the information cited demonstrates that the applicant faces a real chance of persecution because of his ethnicity and his religion.”
The decision record then noted Mr Thompson’s consideration of the question whether the applicant could relocate to another part of Afghanistan and stated the conclusion that:
“I am unable to find that the applicant relocate [sic] safely in Afghanistan.”
The decision record then discussed whether the applicant could have effective protection in another country, dealing separately with Pakistan and Indonesia, and concluding:
“I have carefully considered the applicant’s submission and all the available country information relevant to the applicant’s situation. I am satisfied that the applicant’s fear of persecution is well founded.”
It is necessary to quote the balance of the decision record:
“DECISION ON PROTECTION OBLIGATIONS
I find that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention.
DECISION ON PROTECTION (CLASS XA) VISA APPLICATION
I am satisfied that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention.
I am satisfied that [the applicant] satisfies all Regulations Schedule 2 Part 785 criteria. Accordingly I grant him a Protection (Class XA) temporary visa. The applicant also:
·has undergone medical examinations carried out by a Commonwealth Medical Officer (clause 785.224).
·where necessary, has undergone a chest x-ray (clause 785.225).
·has satisfied public interest criteria 4001 to 4003 (clause 785.226)
·has satisfied the Minister that the grant of the visa is in the national interest (clause 785.227)
·is in Australia (clause 785.411)
·has not been offered a temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC (clause 785.223)
Only one Protection visa can be held by a person at any one time. My decision to grant a Protection visa on all Protection visa applications before me from the applicant gives him only one Protection visa.
[signed]
S. Thompson
Position number: 6425
Delegate of the Minister for Immigration and Ethnic Affairs
for purposes of section 65 of the Migration Act 1958”.

It is common ground that Mr Thompson signed the decision record and that, at the time, he was a delegate of the Minister for the purposes of s 65 of the Migration Act. The decision record did not come to light until the file was sent to the applicant’s solicitor and migration agent in response to a request pursuant to freedom of information legislation. Later in these reasons for judgment, it will be necessary to discuss in detail the circumstances surrounding the creation of the decision record.
On 9 December 2001, Mr Thompson left Australia on business of the Department. He did not return until after the New Year and had no further involvement with the applicant’s case until he swore an affidavit filed in this proceeding.
No notice was given to the applicant of any decision to grant him a protection visa. Nor was any document issued or stamped to provide any evidence of the grant of such a visa.
The Department file relating to the applicant contains what is apparently a print-out of a computer record, made on 11 January 2002, stating that:
“The 1A assessment was met prima facie on 09/11/01 but that since then, the country situation has changed and as a result the 1A assessment will need to be reconsidered.”
By circular letter dated 18 January 2002, Afghan asylum seekers awaiting decisions on protection visa applications were advised by the Acting First Assistant Secretary, Refugee and Humanitarian Division of the Department, in the following terms:
“TO ALL AFGHAN ASYLUM SEEKERS AWAITING A DECISION ON THEIR PROTECTION VISA APPLICATIONS
Dear Sir or Madam
I am writing to you regarding your Protection Visa application.
As you may be aware, the situation in Afghanistan has changed substantially in the past months.
Processing of Afghan applications by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has been continuing and will continue. However, decisions on protection visa applications that would depend on assessments of conditions in Afghanistan are not being made by the Department because of the lack of reliable information and the ongoing changes in Afghanistan. Decisions will continue to be made in cases where the situation in Afghanistan is not relevant to the case.
It is not yet clear how long it will be before conditions stabilise in Afghanistan. The Department will not be finalising applications until there is reliable information available in order to avoid returning refugees to a situation in which they could face persecution. Although it is possible that the situation could stabilise quickly, it could alternatively take a number of months. DIMIA is closely monitoring the situation in Afghanistan and we will keep you informed of developments. I have attached some information summarising recent changes.
In light of the changes in Afghanistan and the possibility that the situation may not be resolved for some considerable time, you may wish to consider whether:
· you wish to return home or to another place where you may have a right of residence; or
· you wish to continue with your application.
If at any time you do not wish to continue with your application, you should tell the DIMIA Manager and we will arrange for officials to discuss with you how we can assist you to return home. In any event, DIMIA management at the centre will talk to you about these options over the next month.
If you decide to continue with your application, DIMIA will give you an opportunity to provide further information to support your claims for protection when we consider that the situation in Afghanistan has stabilised. You will be able to obtain assistance from your IAAAS migration agent and an interpreter to prepare that information. We will also provide you with an up-to-date assessment of the country conditions at that time. In the meantime, DIMIA will continue to provide you with information about conditions in Afghanistan on a monthly basis.
Your IAAAS migration agent will receive a copy of this letter.”
The applicant’s file was transferred at some point to another delegate of the Minister, Kirsty Bradbeer. She interviewed the applicant on 20 February 2002 and received a lengthy written submission from the applicant’s solicitor and migration agent on 15 March 2002. Ms Bradbeer signed another document, dated 26 March 2002, entitled “PROTECTION (CLASS XA) VISA DECISION RECORD”. It is unnecessary to describe this in great detail. It contained a decision that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. It stated that he therefore did not meet a prescribed criterion for a grant of a Subclass 785 (Temporary Protection) visa and his application was refused. This document was forwarded to the applicant, and to his solicitor and migration agent, with a letter of the same date. The applicant applied to the Refugee Review Tribunal for review of this decision. His solicitor and migration agent sent the application on 27 March 2002. It was accompanied by a request for access to documents under freedom of information legislation. On 18 April 2002, the agent received documents from the Tribunal in response to that request. Among them was the file of the Department relating to the applicant, which included the decision record signed by Mr Thompson on 7 December 2001.
On 21 May 2002, the Refugee Review Tribunal gave a decision affirming the decision of Ms Bradbeer. On 27 and 29 May 2002, the applicant commenced two separate proceedings in this Court in respect of the Tribunal’s decision, by filing separate applications in the West Australia District Registry. On 15 July 2002, he discontinued both proceedings. In late July 2002, he signed a form giving his consent to return to Afghanistan. By a statement in writing signed by him and filed in this proceeding, and subsequently verified by oral evidence in the hearing of the application before me, the applicant purported to retract this consent.
The legislation
The Migration Act distinguishes between lawful non-citizens and unlawful non-citizens. By s 13(1), a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. By s 14(1), a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. For present purposes, it is unnecessary to examine in detail the definition of “migration zone” in s 5(1). It is enough to say that a person within Australia is within that zone. The other definition in s 5(1) relevant at this point is that of “visa”, which refers to s 29. Section 29(1) provides as follows:
“Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.”
Section 30 draws a distinction between permanent and temporary visas. Section 31 provides for different classes of visas, some prescribed by regulations made under the Migration Act and some provided for by the Migration Act itself. Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class.
One of the classes of visas for which the Migration Act itself provides is the class of visas known as protection visas. The relevant provision is s 36. By s 36(2), a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) defines “Refugees Convention” as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and “Refugees Protocol” as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For present purposes, it is sufficient to say that Australia has protection obligations under those instruments in respect of a person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.
Further criteria for protection visas are to be found in item 785 in Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”). These criteria relate to the kind of visa described as a Subclass 785 Temporary Protection visa. Of particular relevance is cl 785.22, which prescribes criteria to be satisfied at the time of a decision as follows:
“785.221 The Minister is satisfied that the applicant is a person to whom
Australia has protection obligations under the Refugees
Convention.

785.222In the case of an applicant referred to in paragraph

785.211(b):
(a)the Minister is satisfied that the applicant is a member

of the same family unit as a person who has made

specific claims under the Refugees Convention (a

claimant
); and
(b)the claimant has been granted a Protection (Class XA)

visa.
785.223The applicant, or a member of the family unit of the applicant,

has not been offered a temporary stay in Australia by the

Australian Government for the purposes of regulation 2.07AC.
785.224The applicant has undergone a medical examination carried

out by any of the following (a relevant medical practitioner):
(a)a Medical Officer of the Commonwealth;
(b)a medical practitioner approved by the Minister for the

purposes of this paragraph;
(c)a medical practitioner employed by an organisation

approved by the Minister for the purposes of this

paragraph.
785.225The applicant:
(a)has undergone a chest x-ray examination conducted by

a medical practitioner who is qualified as a radiologist

in Australia; or
(b)is under 16 years of age and is not a person in respect

of whom a relevant medical practitioner has requested

such an examination; or
(c)is a person:
(i)who is confirmed by a relevant medical

practitioner to be pregnant; and
(ii)who has been examined for tuberculosis by a

chest clinic officer employed by a health

authority of a State or Territory; and
(iii)who has signed an undertaking to place herself

under the professional supervision of a health

authority in a State or Territory and to undergo

any necessary treatment; and
(iv)who the Minister is satisfied should not be

required to undergo a chest x-ray examination

at this time.
785.225AA relevant medical practitioner:
(a)has considered:
(i)the results of any tests carried out for the

purposes of the medical examination required

under clause 785.224; and
(ii)the radiological report (if any) required under

clause 785.225 in respect of the applicant; and

(b)if he or she is not a Medical Officer of the

Commonwealth and considers that the applicant has a

disease or condition that is, or may result in the

applicant being, a threat to public health in Australia

or a danger to the Australian community, has referred

any relevant results and reports to a Medical Officer

of the Commonwealth.
785.225BIf a Medical Officer of the Commonwealth considers that the

applicant has a disease or condition that is, or may result in

the applicant being, a threat to public health in Australia or a

danger to the Australian community, arrangements have been

made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.
785.226The applicant satisfies public interest criteria 4001, 4002 and

4003.
785.227The Minister is satisfied that the grant of the visa is in the

national interest.”
Clause 785.5 provides that the visa permits the holder to remain in Australia until a permanent visa is granted or until the end of thirty-six months. The reference in cl 785.226 to the public interest criteria 4001, 4002 and 4003 is a reference to criteria found in Pt 1 of Sch 4 to the Migration Regulations. Of particular relevance in the present case is criterion 4002, which is in the following terms:
“The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.”
The Migration Act contains detailed provisions about the process of applying for a visa and the making of a decision to grant or refuse a visa. Section 46 sets out the criteria which must be met for a visa application to be a valid application. It is unnecessary to go in detail to the provisions of that section, because it is common ground in the present proceeding that the applicant’s application for a protection visa was a valid application. The existence of such an application enlivened the obligation in s 47, which is expressed in the following terms:
“(1)     The Minister is to consider a valid application for a visa.
(2)     The requirement to consider an application for a visa continues until:
(a)       the application is withdrawn; or
(b)       the Minister grants or refuses to grant the visa; or
(c)       the further consideration is prevented by section 39 (limiting
number of visas) or 84 (suspension of consideration).”

It is of some importance in the present case to note that s 84 empowers the Minister to determine that dealing with applications for visas of a specified class is to stop until a day specified in a notice, which must be published in the Commonwealth of Australia Gazette.
The performance of the Minister’s duty, imposed by s 47(1), to consider a valid application for a visa gives rise to the duty expressed in s 65 of the Migration Act in the following terms:
“(1)     After considering a valid application for a visa, the Minister:
(a)       if satisfied that:
(i)        the health criteria for it (if any) have been satisfied;
and

(ii)       the other criteria for it prescribed by this Act or the
regulations have been satisfied; and

(iii)      the grant of the visa is not prevented by section 40
(circumstances when granted), 500A (refusal or
cancellation of temporary safe haven visas), 501
(special power to refuse or cancel) or any other
provision of this Act or of any other law of the
Commonwealth; and

(iv)      any amount of visa application charge payable in
relation to the application has been paid;

is to grant the visa; or
(b)       if not so satisfied, is to refuse to grant the visa.
(2)      To avoid doubt, an application put aside under section 94 is not taken
for the purposes of subsection (1) to have been considered until it has
been removed from the pool under subsection 95(3).”

It should be noted that ss 94 and 95 are part of a system known as the “points” system, under which, in certain circumstances, the Minister is obliged to put aside an application and deal with it at a later time. The provisions have no application to protection visas.
Section 65 is followed by several provisions, which are of crucial importance to the present case. They are as follows:
“66     Notification of decision
(1)       When the Minister grants or refuses to grant a visa, he or she
is to notify the applicant of the decision in the prescribed way.

…
(4)       Failure to give notification of a decision does not affect the
validity of the decision

….
67       Way visa granted
A visa is to be granted by the Minister causing a record of it to be
made.

68       When visa is in effect
(1)       Subject to subsection (2), a visa has effect as soon as it is
granted.

(2)       A visa may provide that it comes into effect at the beginning of
a day, being a day after its grant:

(a)       specified in the visa; or
(b)       when an event, specified in the visa, happens.
(3)       A visa can only be in effect during the visa period for the visa.
…
70       Evidence of visa
Subject to the regulations, if a non-citizen is granted a visa, an officer
is to give the non-citizen evidence of the visa.

71       Ways of giving evidence
(1)       Evidence of a visa is to be given in a way prescribed for giving
the evidence.

(2)       The regulations may provide that the way in which evidence of
a visa or a visa of a class is to be given is to depend on the
circumstances in which it is given.

(3)       If a regulation provides that evidence of a non-citizen’s visa
may be given by endorsing a valid passport or other valid
travel document issued to the non-citizen or another non-
citizen associated with him or her, the Minister may direct
that a specified document is not to be taken to be a passport
or travel document for the purposes of the regulation.”

Regulation 2.17 of the Migration Regulations contains provisions concerning the ways of giving evidence of the grant of a visa. They involve affixing labels to passports, imprints stamped in passports, or documents given to non-citizens by officers.
Provision is made for the cancellation of visas in certain circumstances. In particular, by s 116(1)(a), the Minister may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer exist.
At the heart of this proceeding are the provisions relating to detention. The word “detain” is defined in s 5(1) as follows:
“detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.”
Section 189(1) provides relevantly:
“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.”
Section 196 provides:
“(1)     An unlawful non-citizen detained under section 189 must be kept in
immigration detention until he or she is:

(a)       removed from Australia under section 198 or 199; or
(b)       deported under section 200; or
(c)       granted a visa.
(2)      To avoid doubt, subsection (1) does not prevent the release from
immigration detention of a citizen or a lawful non-citizen.

(3)      To avoid doubt, subsection (1) prevents the release, even by a court, of
an unlawful non-citizen from detention (otherwise than for removal or
deportation) unless the non-citizen has been granted a visa.”
Sections 198 and 199 provide for powers, and in some cases duties, to remove unlawful non-citizens and their spouses and dependent children from Australia. By s 209, a non-citizen who is detained is liable to pay the Commonwealth the costs of his or her detention. Those costs are determined, in the form of a daily amount, by the Minister, pursuant to s 208.
Part 7 of the Migration Act makes provision for the review of certain decisions by the Refugee Review Tribunal. By s 411(1), decisions to refuse to grant protection visas, or to cancel protection visas (or earlier similar visas) are reviewable by the Tribunal. No provision is made for review of a decision to grant a visa.
Part 8 of the Migration Act contains provisions relating to judicial review of decisions. Section 474 contains what is described as the privative clause. So far as is relevant to this proceeding, s 474 provides:
“(1)     A privative clause decision:
(a)       is final and conclusive; and
(b)       must not be challenged, appealed against, reviewed, quashed
or called in question in any court; and

(c)       is not subject to prohibition, mandamus, injunction,
declaration or certiorari in any court on any account.

(2)      In this section:
privative clause decision
means a decision of an administrative
character made, proposed to be made, or required to be made, as the
case may be, under this Act or under a regulation or other instrument
made under this Act (whether in the exercise of a discretion or not),
other than a decision referred to in subsection (4) or (5).

(3)      A reference in this section to a decision includes a reference to the
following:

…
(b)       granting, giving, suspending, cancelling, revoking or refusing
to give a certificate, direction, approval, consent or permission
(including a visa);

…
(g)       doing or refusing to do any other act or thing;
(h)       conduct preparatory to the making of a decision, including the
taking of evidence or the holding of an inquiry or investigation;

…
(j)        a failure or refusal to make a decision.”

Section 476 contains provisions limiting the jurisdiction of this Court. Those relevant to the present case are:
“(1)Despite any other law (including section 483A, sections 39B and 44

of the Judiciary Act 1903, section 32AB of the Federal Court of
Australia Act 1976 … ), the Federal Court …[does] not have any jurisdiction in relation to a primary decision.
…
(6)      In this section:
primary decision means a privative clause decision:
(a)       that is reviewable, or has been reviewed, under Part 5 or 7
or section 500; or

(b)       that would have been so reviewable if an application for such
review had been made within a specified period.”
Section 477 places time limits on applications for judicial review, as follows:
“(1)     An application to the Federal Court under section 39B of the Judiciary
           Act 1903 for:
(a)       a writ of mandamus, prohibition or certiorari; or
(b)       an injunction or a declaration;
in respect of a privative clause decision in relation to which the
jurisdiction of the Federal Court is not excluded by section 476 must
be made to the Federal Court within 28 days of the notification of the
decision.

…
(2)The Federal Court … must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1)… outside the period specified in that subsection.
(3)      The regulations may prescribe the way of notifying a person of a
decision for the purposes of this section.”

Section 479 provides as follows:
“The parties to a review of a privative clause decision resulting from an application referred to in section 477 are the Minister and:
(a)if the privative clause decision concerned was reviewable under Part 5

or 7 or section 500 of this Act and a decision on such a review has

been made—the applicant in the review by the relevant Tribunal; or

(b)in any other case—the person who is the subject of the decision; or
(c)in any case—a person prescribed by the regulations.”
Section 486C contains provisions relating to standing. So far as relevant, they are:
“(1)     Only the persons mentioned in this section may commence or continue
a proceeding in the Federal Court or the Federal Magistrates Court
that raises an issue:

(a)       in connection with visas (including if a visa is not granted or
has been cancelled), deportation, or removal of unlawful
non-citizens; and

(b)       that relates to the validity, interpretation or effect of a
provision of this Act or the regulations;

(whether or not the proceeding raises any other issue).
(2)      Those persons are:
(a)       a party to a review mentioned in section 479; or
(b)       the Attorney-General of the Commonwealth or of a State or a
Territory; or

(c)       a person who commences or continues the proceeding in
performing the person’s statutory functions; or

(d)       any other person prescribed by the regulations.
Scope of rule
(3)This section applies to proceedings in the Federal Court’s jurisdiction

under Part 8 of this Act, section 39B or 44 of the Judiciary Act 1903 … or any other law.
…
(4)      To avoid doubt, nothing in this section allows a person to commence
or continue a proceeding that the person could not otherwise
commence or continue.

Relationship with other laws
(5)      This section has effect despite any other law.
(6)      However, subsection (5) does not apply to a provision of an Act if the
provision:

(a)       commences after this section commences; and
(b)       specifically states that it applies despite this section.”
There appear to be no regulations prescribing persons for the purposes of s 479(c) or s 486C(2)(d).
Section 496 relates to delegation, it provides relevantly as follows:
“(1)     The Minister may, by writing signed by him or her, delegate to a
person any of the Minister’s powers under this Act.

(1A)     The delegate is, in the exercise of a power delegated under subsection
(1), subject to the directions of the Minister.

…
(5)      Subsection (1A) does not limit subsection 499(1).
Section 499 provides relevantly as follows:
“(1)     The Minister may give written directions to a person or body having
functions or powers under this Act if the directions are about:

(a)       the performance of those functions; or
(b)       the exercise of those powers.
…
(2)      Subsection (1) does not empower the Minister to give directions that
would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).
(3)      The Minister shall cause a copy of any direction given under
subsection (1) to be laid before each House of the Parliament within
15 sitting days of that House after that direction was given.

(4)      Subsection (1) does not limit subsection 496(1A).”
Section 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act’) provides relevantly as follows:
“(1)     Subject to subsections (1B) and (1C), the original jurisdiction of
the Federal Court of Australia includes jurisdiction with respect to
any matter in which a writ of mandamus or prohibition or an
injunction is sought against an officer or officers of the
Commonwealth.

(1A)     The original jurisdiction of the Federal Court of Australia also
includes jurisdiction in any matter:

(a)       in which the Commonwealth is seeking an injunction or a
declaration; or

(b) arising under the Constitution, or involving its interpretation;
or

(c)       arising under any laws made by the Parliament, other than a
matter in respect of which a criminal prosecution is instituted
or any other criminal matter.”

Subsections (1B) and (1C) are not relevant to the present proceeding.
It is also necessary to mention the relevant provisions of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). By s 21, the Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. A suit is not open to objection on the ground that a declaratory order only is sought. Section 23 provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
The Court’s jurisdiction
The essence of the applicant’s case is that he seeks to establish that the decision record signed by Mr Thompson constitutes the grant to him of a visa. It is clear that, in the absence of the provisions in Pt 8 of the Migration Act, s 39B(1A)(c) of the Judiciary Act would confer jurisdiction on this Court to deal with that issue. Plainly, the matter underlying this proceeding arises under the Migration Act, a law made by the Commonwealth Parliament. The question arises whether the later provisions of Pt 8 of the Migration Act take away what would otherwise be the jurisdiction of the Court. Attention must therefore be directed to the relevant provisions of s 476 of the Migration Act. Subsection (1) removes the jurisdiction of this Court under s 39B of the Judiciary Act in respect of what are called primary decisions. The definition in subs (6) makes it clear that a primary decision is a privative clause decision in respect of which review by a Tribunal is permissible if sought within the requisite time limit. Section 474(2) defines “privative clause decision” in broad terms. It is a decision of an administrative character made, proposed to be made or required to be made under the Migration Act, the Migration Regulations or another instrument under the Migration Act. The definition of “privative clause decision” in s 5(1) makes the definition of that term in s 474(2), which by its terms is limited to s 474, applicable to the use of the expression throughout the Migration Act. The exceptions referred to in subss (4) and (5) are not relevant to the present case.
In the case of a protection visa, s 411 provides that a decision to refuse to grant, or to cancel, such a visa can be reviewed. It is clear that no provision is made for review of a decision to grant a protection visa. As a consequence, although a decision to grant such a visa is a privative clause decision, within the terms of the definition in s 474(2), it is not a primary decision, within the definition of that term in s 476(6). Section 476(1) does not therefore exclude a decision to grant a protection visa from the jurisdiction of this Court given by s 39B(1A)(c) of the Judiciary Act. The Court therefore has jurisdiction to deal with the proceeding. Section 21 of the Federal Court Act makes it clear that the Court can entertain the proceeding even though the only relief sought consists of declarations of right.
The time limit imposed by s 477(1) on the commencement of a proceeding appears to be irrelevant in the present case. In the absence of notification of a decision, pursuant to s 66 of the Migration Act, it appears that there is no point from which the time specified could begin to run.
The applicant’s standing
After adjourning the proceeding on 18 September 2002, I became concerned that s 486C of the Migration Act, on one construction, might deprive the applicant of standing to bring the proceeding. It appeared to me that the proceeding was one raising an issue in connection with visas and relating to the interpretation or effect of provisions of the Migration Act, and therefore fell within s 486C(1). I had some concern that the applicant did not fall within the classes of persons referred to in s 486C(2) given that subs (3) makes it clear that s 486C applies to proceedings within the Court’s jurisdiction under s 39B of the Judiciary Act. I therefore took steps to notify the parties that I wished them to make submissions on the effect of s 486C when the hearing resumed on 20 September 2002.
On that date, counsel for the Minister informed the Court that the Minister took no point as to the standing of the applicant to bring the proceeding. Counsel for the applicant mounted an argument to the effect that the applicant falls within the class of persons referred to in s 486C(2)(a), being a party to a review mentioned in s 479.
Section 479 imposes limits on those who may be parties to a review in the Court of a privative clause decision. As I have already said, the putative decision in the present case falls within the definition of privative clause decision in s 474(2), which the definition of “privative clause decision” in s 5(1) makes applicable throughout the Migration Act. Section 479(a) deals with reviews of decisions that have already been subject to review by either the Refugee Review Tribunal or the Migration Review Tribunal. Section 479(b) deals with other cases. This is one of those other cases, because, as I have already said, a decision granting a protection visa is not subject to review by the Refugee Review Tribunal pursuant to s 411. In such a case, the person who is the subject of the decision can be a party to the proceeding in the Court.
Counsel for the applicant argued that this proceeding is one for “a review” of a privative clause decision, because the term “review” is to be interpreted broadly in its context in the Migration Act. I note that the relevant definition of the word “review” in the Macquarie Dictionary is “a judicial re-examination, as by a higher court, of the decision or proceedings in a case.” If the word “review” in s 479 is used in that sense, then the provision is broad enough to cover a proceeding in which the Court is invited to determine that a particular decision has been made. In the context of a recognition of the applicability of the jurisdiction given by s 39B of the Judiciary Act, which includes the writs available under s 75(v) of the Constitution, as well as the grant of jurisdiction in matters arising under federal laws, there is a case for saying that the word “review” is given such a wide meaning.
A purposive construction of s 486C leads to the same conclusion. Its purpose is obviously restrictive, but the degree of the intended restriction is not necessarily apparent from the terms of the section itself. Given that there is ambiguity, reference can be had to extrinsic materials, pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth). Paragraph 65 of the explanatory memorandum to the Migration Legislation Amendment (Judicial Review) Bill 2001 by which s 486C was enacted in its present form, states the purpose of the provision as follows:
“It is primarily directed at collateral challenges to the migration legislation. It ensures that such a challenge, for example, could not be made by a person who did not have a relevant visa decision made about him or her.”
This indicates that it is not the purpose of the provision to deprive a person who has had a relevant visa decision made about him or her of standing. It supports the argument put by counsel for the applicant to the effect that s 486C is intended to exclude busybodies, and to avoid a repeat of the kind of application that resulted in the judgment of the Full Court of this Court in Ruddock v Vadarlis [2001] FCA 1329 (2001) 110 FCR 491, which occurred shortly before the enactment of the relevant legislative amendments.
Finally, unless s 486C(2)(a) can be construed so as to include a person in the position of the applicant, it could lead to anomalies. For instance, the judgment of Merkel J in Applicant VFAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1062 arose out of circumstances very similar to the present case. One difference, however, is that the person seeking relief in that case was also an applicant in another current proceeding in this Court, in which he sought judicial review of a decision of the Refugee Review Tribunal affirming a decision to refuse him a protection visa. The applicant in the present case had also applied for judicial review of a similar decision relating to him, but has abandoned his proceeding. It would be anomalous if the effect of s 486C were to preserve the standing of the person applying in VFAD, simply because of the accident that he was also involved in another proceeding, but to deny standing to the present applicant.
It therefore appears that the preferable construction of s 486C is that it does not deprive the applicant of standing to bring this proceeding. At the very least, there must be a serious question to be tried that the applicant has such standing. Counsel for the Minister having indicated that the Minister does not wish to put the applicant’s standing in issue in the proceeding, it is appropriate to assume that the applicant has standing.
The grant of a visa
The applicant’s case starts with the proposition that a visa is an intangible thing. In the words of s 29(1), it is “permission”. A delegate of the Minister appointed under s 496 of the Migration Act has a duty pursuant to s 47(1) to consider a valid application for a visa. It is conceded by the Minister in the present case that Mr Thompson was at the relevant time a delegate of the Minister. It is also conceded that the applicant’s application for a protection visa was a valid application. The duty to consider such an application continues until one of the events referred to in s 47(2) occurs. In this case, the applicant contends that the duty was exercised by Mr Thompson when he granted the visa.
It has been recognised in a number of cases that s 65 of the Migration Act does not admit of a discretion. If the delegate exercising the Minister’s power to consider a valid application is satisfied that the criteria are met, the delegate is required to grant the visa. If the delegate is not so satisfied, he or she is required to refuse to grant the visa. See Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [8] per Gleeson CJ and McHugh J and [119] per Gummow J. The decision record signed by Mr Thompson indicates his satisfaction with all of the criteria referred to in s 65(1).
Crucial to the applicant’s argument is s 67. Counsel for the applicant submitted that that provision makes it clear that the sole method of granting a visa is for the Minister (by his delegate) to cause a record of the visa to be made. The obligation under s 66 to notify an applicant of the grant of, or refusal to grant, a visa is consequent upon, and not part of the process of granting the visa. Similarly, the requirements of s 70 to give evidence of a visa follow its grant and are not a necessary part of the grant itself. Once the record is made, the visa (ie the permission) is granted. Once granted, it takes effect by virtue of s 68(1), unless expressed to take effect at a later time. The fact that the consequent obligations to notify and to provide evidence have not been carried out cannot undo the grant of the visa.
This is obviously a strong argument. If the only evidence at the trial were the decision record, it is likely that the Court would hold that a visa had been granted to the applicant. On this basis, there is a strong prima facie case in favour of the applicant. Compare VFAD at [50].
The Minister did not deny that the decision record on its face appears to be the grant of a visa. He relied on affidavit and documentary evidence designed to show that the record does not reflect an actual decision to grant a visa. It is necessary to summarise the effect of that evidence.
From about mid-November 2001, it was apparent to some persons in the Department that changing conditions in Afghanistan might have an effect on the claims of citizens of that country for protection by Australia. In particular, it was apparent that those who had fled because of a well-founded fear of persecution by the Taliban Government or its agents might no longer need have that fear. On 16 November 2001, Julie Matthews, Acting Director, Protection Policy Section, sent an email to various officers of the Department, containing the following:
“In view of the Department’s lack of information on the current volatile conditions in Afghanistan and the potential for rapid change in conditions, you are requested to defer finalisations relating to applicants claiming to be from Afghanistan. We will be briefing the Minister on the issues associated with the uncertainty in Afghanistan early next week and will provide you with further advice as soon as possible.
This does not mean that processing of the caseload should cease: health and character processing should continue. It is only finalisations that should be deferred.”
This email was relayed to Mr Thompson by other officers of the Department.
On 19 November 2001, an officer called Pauline Pope, whose position is not the subject of evidence, sent an email to a number of officers including Mr Thompson. This email contained the following:
“You will be aware of the recent advice about the temporary halt to processing of these applications. The approach that we will adopt locally is that we will continue with all necessary processing requirements and in those cases which are ready to notify for release send the pro-forma to the BTF as usual. We will hold them here until we receive an update on the situation from CO.
In this way we will be in a position to report separately on this category at the Boat Teleconferences.
If there are particular sensitive cases could you please flag those with one of us here In [sic] the BTF Unit and if there is any scope at all we will raise the particular cases which are of concern if there is any scope to do so.”
On 23 November 2001, Julie Matthews sent an email to a number of officers, in the following terms:
“I am writing to follow up my message of 16/11/01 about finalisations of applications from Afghan asylum seekers.
Following discussions with you on individual cases and discussions with Robert Illingworth, we would like to request that you proceed to finalise protection visa applications that are not affected by the uncertainty in country conditions in Afghanistan. This would involve deferring assessment of applicants’ refugee claims against Convention Article 1A but continuing to assess other visa criteria which are independent of the situation in Afghanistan. This would include whether a person should be refused:
·on character or security grounds;
·
because of concerns about the veracity of their claimed identity and

nationality; or
·
because they have been found to have effective protection elsewhere or

have dual nationality.
Applications which would be refused for reasons which do not relate to the conditions in Afghanistan and fear of persecution (for example character, security, concerns about identity/nationality or effective protection issues as above) can proceed to finalisation.
RRT remittals where applicants have already been found by the RRT to be owed protection should also be finalised. (RRT decisions are not subject to appeal on the grounds of new information)
I have spoken to Barbara Mees and Yvonne Charter separately about expediting arrangements for certain RRT remittals to be finalised next week.
We will update you with any further advice from the Minister as soon as it is available”.
This email was forwarded to other officers by Rocio Trapaga-Saul, with the message:
“Please clarify with your case officers - they should be deferring 1A assessment. I’ll keep you posted.”
The two emails were in turn forwarded to Mr Thompson.

On 26 November 2001, Pauline Pope sent another email to a number of officers, including Mr Thompson. The text of this email was as follows:
“For info. I have also clarified with Rocio. We will adopt the following approach with Afghan BTF cases.
where 1A assessment has been completed and all requirements have been met you can still notify the BTF Unit as you would notify for release and we will hold the cases until we receive further instructions. Bear in mind it may well prove necessary to re-visit these decisions in the future. where 1A assessment has not been entered into ICSCE do not enter until we have received further advice.
for those officers recently returned from BTF you may continue with all processing and ICSE data entry but do not enter any 1A assessments for the Afghan casesload [sic]. Hopefully we will have clarification soon.”
In his affidavit, Mr Thompson has sworn:
“I travelled overseas on Sunday, 9 December 2001 on Departmental business and was not due to return to work until the New Year.
Prior to my departure, Ms Karen Dix, who was at the relevant time employed as the Team 4 Manager of the Onshore Protection Section, Sydney requested me to prepare a draft assessment of the applicant’s case.
On 7 December 2001, in accordance with Ms Dix’s request, I prepared a draft assessment in relation to the applicant’s case.”
The affidavit then refers to the decision record and continues:
“The document was signed by me but not dated, to indicate that it was not a decision. Decisions are always dated on the day that they are made.
As at 7 December 2001, I was not satisfied that the applicant met all the criteria for the grant of a Subclass 785 (Temporary Protection) visa.
I was not satisfied that the applicant met clause 785.226 of the Regulations as I had not received the results of the PIC 4002 check.
In addition, I was also aware on 7 December 2001 that the changing circumstances in Afghanistan could impact on the finalisation of the applicant’s case. That is, I believed that my preliminary assessment that the applicant’s fear of persecution in Afghanistan was well founded would need to be considered in light of the receipt of updated information regarding the changing circumstances in that country which was being sought by the Department at that time. For example, given that the applicant’s claims at that time related to his fear of persecution by the Taliban, I would have needed to consider the applicant’s risk of persecution having regard to whether and to what extent the updated information suggested that the Taliban remained in power or a significant practical political presence in the country, whether Hazaras and Shia Muslims faced a real chance of persecution under any new administration established in Afghanistan or from any other source and the extent to which any new administration would be willing and able to protect the applicant from any possible additional sources of risk.
…
I did not at any time make a decision in relation to the applicant’s protection visa application or any record of any such decision and did not grant the applicant a Subclass 785 (Temporary Protection) visa or make a record of any such visa.”
This evidence raises two obvious issues. The first is whether, in the light of the clear statutory duties imposed by s 47(1) and s 65 of the Migration Act, to consider a valid application and to grant or refuse a visa according to the satisfaction or non-satisfaction of the delegate, it was open to a delegate to defer consideration of applications of a particular kind, at the request or on the direction of another officer of the Department. Counsel for the Minister argued that, at a time when it was widely known that circumstances in Afghanistan were changing, it was simply common sense for officers of the Department to refrain from making decisions on the applications of persons from that country until the situation was clarified. If a statutory duty exists, however, it will not always be possible to resort to common sense to justify its non-performance.
Nor does it appear from the evidence what authority Ms Matthews or Ms Pope claimed to have to make the requests or give the directions they purported to make or give. Section 84 of the Migration Act contains a clear power for the Minister to suspend the processing of certain visa applications. The power must be exercised by notice in the Commonwealth of Australia Gazette. It can only be exercised in relation to visas of a specified class (as distinct from the applications of persons from a particular country for visas of a specified class) and the determination must specify a day on which dealing with the applications is to resume. Section 84 is therefore obviously inapplicable to the emails sent on and between 16 and 26 November 2001. They did not relate to a class of visas, in the sense in which that term is used in the legislation. They did not specify a date on which processing of the applications concerned was to resume. There is no evidence that any notice was published in the Commonwealth of Australia Gazette. In addition, it is clearly arguable that the provisions of s 84 of the Migration Act constitute a code with respect to the cessation of dealing with applications, and impliedly exclude any other power to suspend such dealings. In this respect, it is important to note that notification in the Commonwealth of Australia Gazette and the requirement to specify a resumption date are important safeguards, not to be put aside lightly.
Further support for the proposition that the duty under s 65 to grant or refuse a visa cannot be put aside is found in s 65(2). In turn, this provision refers to ss 94 and 95(3). It is unnecessary to describe in detail the “points” system of which those provisions are part. It is only necessary to note that, in certain circumstances, an application is taken to have been put into a pool, from which it can be removed at a later date if it has not achieved sufficient points to warrant the grant of the visa concerned. The specific reference to that scheme in s 65(2) supports the proposition that the statutory duty found in s 65(1) is not able to be put aside in circumstances other than those specified in the Migration Act.
Section 499 of the Migration Act empowers the Minister to give written directions to those having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. Subsection (2) contains an express limitation on the power of the Minister, namely that the directions cannot be inconsistent with the Migration Act or the Migration Regulations. Reference must also be made to s 496(1A), which provides that a delegate is subject to the directions of the Minister in the exercise of a delegated power. There is no express limitation on the power to give directions in s 496(1A). There is, however, a powerful argument for the proposition that the Minister cannot direct a delegate to do something that the Minister could not do. Again, given the nature of the statutory duties imposed by ss 47(1) and 65, there must be serious doubt as to whether those duties can be put aside, even on a direction from the Minister to do so. There is, of course, no evidence of the Minister as being the origin of any direction given in the emails of 16 to 26 November 2001, nor as to any delegated authority that the senders of those emails may have had pursuant to s 496 of the Migration Act. In the circumstances, it is difficult to see that Mr Thompson had lawful authority to refrain from performing his statutory duties to consider the applicant’s application and, if satisfied that the applicant met the criteria, to grant the visa sought.
The proposition that the performance of the statutory duties in ss 47 and 65 of the Migration Act is deferrable can be tested by asking whether, if a delegate who has considered an application and is not satisfied that all the criteria for the grant of a relevant visa have been met, it would be open to that delegate to suspend his or her dealing with the application, pending possible developments that might lead to satisfaction that the criteria have been met. The answer is most probably in the negative.
The most telling fact in favour of the applicant is that, despite the emails of 16 to 26 November 2001, on the face of the documents, Mr Thompson did not refrain from determining the applicant’s application. Counsel for the Minister was not able to point to any provision of the Migration Act or the Migration Regulations under which Mr Thompson might have claimed to be acting when he completed the decision record, other than s 65(1) and s 67. So far as the documentary evidence goes, there is nothing on the face of the decision record to indicate that it was intended to be a draft. In particular, it is conceded that the document bears Mr Thompson’s signature. Only the absence of a date, coupled with evidence of a practice of dating each record of a decision, would detract from the documentary evidence. Counsel for the applicant drew attention to the absence of any provision in the legislation requiring that a record of the grant of a visa be dated. Counsel for the Minister suggested that such a requirement is implicit. It is necessary to know the date when a visa is granted, so that the date it takes effect under s 68(1) is clear, the requirement to release the visa holder from detention comes into existence and the date of commencement of the period of a temporary visa can be ascertained. Again, it may not be possible to translate a practical consideration into a legal requirement when that is not reflected in the Migration Act.
The second question arising from Mr Thompson’s affidavit concerns the operation of s 474 of the Migration Act. As I have said, the grant of a visa falls within the definition of privative clause decision in that section. If, therefore, the decision record constitutes the grant of a visa, there is a real question whether the Minister will be entitled at the trial to call into question that decision by tendering evidence by the decision-maker that he did not intend the document he created to mean what it says. Section 474(1) is expressed in very broad terms and has been held to have very broad effect. See generally NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. If the document itself is sufficient to constitute the grant of a visa, it is hard to envisage that an attempt to provide evidence of the kind set out in Mr Thompson’s affidavit would not involve challenging, reviewing or calling into question in the Court the decision to grant that visa.
According to Mr Thompson’s affidavit, he was not satisfied that the applicant met all the criteria for the grant of the visa he sought. In particular, Mr Thompson says he was not satisfied that the applicant met the requirement in item 785.226 of Sch 2 to the Migration Regulations, because he had not received the results of a check to see whether the applicant satisfied public interest criterion 4002. This statement is at odds with the terms of the protection visa decision record, which includes the statement that the applicant has satisfied public interest criteria 4001 to 4003, with a reference to item 785.226. Counsel for the applicant argued that it was possible for Mr Thompson to be satisfied that the applicant satisfied public interest criterion 4002 even without the completion of a check, because the criterion itself is expressed in negative terms. The argument was that, in the absence of some evidence that the applicant had been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security, it was possible, if not necessary, to reach the conclusion that he satisfied the criterion. I doubt that this argument would prevail at the trial, but it may not be necessary for it to be accepted in order for the applicant to succeed. As Merkel J said in VFAD at [50], the acceptance of Mr Thompson’s evidence, if the Minister is permitted to rely on it, is likely to be affected by other evidence and by cross-examination.
Counsel for the Minister suggested that there is authority that a written protection visa decision record is not to be regarded as a decision granting a visa. They referred to Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 762. It is plain from an examination of that case at [4] and [5] that the document concerned in that case did not express the satisfaction of the delegate as to all of the matters referred to in s 65(1) of the Migration Act. On no view could such an incomplete document be regarded as a grant of a visa for the purposes of s 67, and Madgwick J was correct so to hold in that case. Counsel for the Minister also relied on Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240. In that case, at [78], Higgins J said:
“The mere writing of reasons pursuant to an opinion the decision-maker expects to be final does not put it beyond the power of a decision-maker to change his or her mind. Nor, in my opinion, would the signing of a document incorporating such an opinion constitute the making of a decision. It is not beyond recall. No person apart from the decision-maker (and, perhaps, his or her personal staff) is aware that an opinion has been expressed. However, once that decision is published, even if not yet to the affected parties, it is made. After that point, it can be established objectively that the decision-maker has made that decision rather than another. Given the procedures adopted by the RRT, it seems to me that once the reasons for decision were delivered to and recorded in the Registry of the RRT, the decision was made. That is not to say that in a different statutory and procedural context, a decision might not be “made” though less formally recorded or notified.”
In that case, the Full Court was dealing with an appeal from a judicial review of a decision of the Refugee Review Tribunal. The statutory regime with respect to the mechanics of decisions of that tribunal differs substantially from s 67 of the Migration Act. Section 368(1) requires that the tribunal prepare a written statement setting out its decision, the reasons for its decision, and its findings on any material questions of fact, referring to the evidence or other material on which those findings were based. Section 368B relates to the handing down of a decision, other than a decision given orally, or a decision on the application of a person who is in immigration detention for certain reasons, on a day and at a time and place specified in a notice to the person who has applied for the review by the tribunal. In those circumstances, it is not surprising that a draft decision, not yet handed down, would not amount to a final decision. As Higgins J recognised in the last sentence of the passage I have quoted, a different statutory regime may lead to a different result. In my view, the regime laid down in ss 65, 66, 67, 70 and 71 of the Migration Act is a very different statutory regime. It is strongly arguable that the existence of a signed record of a decision is sufficient to show that a visa has been granted.
For these reasons, the applicant has no difficulty in establishing that there is a serious question to be tried that he has been granted a visa on 7 December 2001. He therefore has a prospect of succeeding in his application for the grant of a declaration that he has been a lawful non-citizen since that date.
The Court’s power to release a person from immigration detention
Counsel for the Minister submitted that, even though the applicant might make out a serious question to be tried on the basis that he had been granted a visa, the Court has no power to grant an interlocutory injunction having the effect of releasing him from immigration detention. The basis of the submission is the contention that, even if he succeeds on that issue at the trial, the applicant will not be entitled to a declaration that he has been detained unlawfully since the grant of the visa. The foundation for this submission is s 189 of the Migration Act and the definition of “detain” in s 5(1).
It will be seen that that definition has two parts. “Detain” can mean the act of taking into detention. It can also mean the continued holding of a person in detention. On this basis, counsel for the Minister submitted that the effect of s 189 is twofold. Not only is there a power, and a duty, to take a person into detention if an officer knows or reasonably suspects that the person is an unlawful non-citizen, but there is also a power, and a duty, to keep that person in detention until the reasonable suspicion has been allayed. Thus, counsel for the Minister submitted, it cannot be said that the detention of the applicant became unlawful if a visa was granted on 7 December 2001 unless the applicant can show that no relevant officer of the Department held a reasonable suspicion that the applicant was an unlawful non-citizen.
To construe s 189 in that way would be productive of serious practical difficulties. It would be almost impossible to know whether, somewhere in the Department, there existed an officer, perhaps ignorant of recent developments or other facts, harbouring a suspicion that could therefore be considered to be reasonable, so that continued detention of a person was required. Even if the officer responsible for the original detention no longer had a reasonable suspicion that the person detained was an unlawful non-citizen, that officer would be powerless to arrange the release of the person unless he or she became satisfied that no other officer held such a reasonable suspicion. It would be almost impossible for a person in detention to know whom to contact for the purpose of providing information that would allay a reasonable suspicion.
Fortunately, s 189 is susceptible of a construction that could avoid such dramatic results. It should be noted that the definition of “detain” in s 5(1) of the Migration Act is expressed in the alternative. The use of the disjunctive between the two arms of the definition appears to have been a deliberate step by the drafter, for the purpose of making the definition useful in a variety of contexts. It is also worth noting that, in the terms of s 5(1), the definition is applicable throughout the Migration Act “unless a contrary intention appears”. An examination of the context of s 189 makes it clear that the word “detain” in s 189 has the meaning given by the first limb of the definition of “detain” in s 5(1), namely to take into immigration detention. It is s 196 that provides for the keeping of such a person in immigration detention until one of the events referred to in s 196(1) occurs. Counsel for the Minister pointed out that s 196(2) is expressed in permissive terms, rather than in terms that mandate the release from detention of a citizen or a lawful non-citizen. This is so. It is also true that s 196(2) contains no reference to s 189. The clear assumption underlying these provisions is that detention of a citizen, or a lawful non-citizen, is unlawful unless justified. The taking into detention of such a person may be justified on the basis of a reasonable suspicion that the person is an unlawful non-citizen. If, in fact, the person is a lawful non-citizen, there is an entitlement to immediate release.
In my view, s 189 of the Migration Act provides no authority for the continued detention of a lawful non-citizen. If the applicant succeeds at the trial in establishing that a protection visa was granted to him on 7 December 2001, it will be possible for him to succeed in his claim for a declaration that his detention since that date has been unlawful. Nothing in Goldie v Commonwealth of Australia [2002] FCA 433 at [6] and [20] per Gray and Lee JJ and [45] – [47] per Stone J, or in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [367] per Wilcox J, [454] and [580] per French J and [645] per von Doussa J, with whom Black CJ and Beaumont J agreed, on both of which counsel for the Minister relied, contradicts this proposition. The comments made in Goldie were directed to the process of taking into detention, not to the question of continued detention. Indeed, at [20], Gray and Lee JJ expressed the view that arrest and detention not justified by reasonable suspicion pursuant to s 189(1) was unlawful. Similarly, at [45], Stone J cited the comment of Deane J in Kioa v West (1985) 159 CLR 550 at 631 that:
“An alien who is unlawfully within this country is not an outlaw. Neither public officer nor private person can physically detain or deal with his person … without his consent except under and in accordance with the positive authority of the law.”

Some modification might need to be made to the general proposition that detention is unlawful without statutory authority, in the light of Ruddock v Vadarlis [2001 FCA 1329 (2001) 110 FCR 491 at [7] per Black CJ and at [193] – [197] per French J (with whom Beaumont J agreed). There are suggestions in those passages that an executive power to prevent the entry, or compel the expulsion, of non-citizens includes a power to detain. As a general rule, however, it is plain that detention without lawful authority is itself unlawful, particularly of a person who is in Australia, where there exists a statutory regime regulating detention. As I have said, that statutory regime is based on the assumption that detention without statutory authority is unlawful.
In VFAD at [29] – [48], Merkel J discussed at length the question whether the power of the Court to grant interlocutory orders, found in s 23 of the Federal Court Act, is excluded by provisions of the Migration Act with respect to persons in detention. His Honour concluded that he had power to order release pending the hearing and determination of the application. In all relevant respects, the facts of that case were identical to those of the present. The Minister has appealed from his Honour’s judgment. The appeal has been heard but judgment has not yet been delivered.
Counsel for the Minister submitted in the present case that the judgment of Merkel J in VFAD was wrong and should not be followed. He submitted that Merkel J misapplied the principle derived from Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] 34 FCR 169, and that s 196 of the Migration Act constitutes a bar to what would otherwise be the power of the Court to order the release of a person taken into detention pursuant to s 189.
I have examined the reasoning of Merkel J in VFAD. I am far from convinced that his Honour was wrong. Until such time as the Full Court holds that his Honour was wrong (if that should occur), the reasoning in VFAD represents the law and I should follow it.
The difficulty about regarding s 196 of the Migration Act as an absolute bar to the exercise by the Court of its ordinary power to grant interlocutory orders is that s 196 is not expressed in absolute terms. As I have said, this section is not intended to justify the continued detention of a citizen or a lawful non-citizen. Whether the applicant is a lawful non-citizen is the central issue in the present case. The applicant has made out a serious question to be tried on that issue. If he is a lawful non-citizen, his detention should have ceased on the grant of his visa on 7 December 2001, when the visa took effect by virtue of s 68(1) of the Migration Act. A clear expression of a legislative intention to deprive the Court of power to release a person from detention in those circumstances would be required. Despite the general tenor of the Act, which favours the detention of unlawful non-citizens, there is no clear provision that a person who has established a serious claim to be a lawful non-citizen should be unable to obtain interlocutory relief from the Court.
I am therefore of the view that the Court has power to make the interlocutory order sought by the applicant.
The balance of convenience
In what was intended to be an affidavit filed with the Court, the applicant set out his particular case on the balance of convenience. Because of his detention, he was unable to swear or affirm that affidavit formally. It was filed as a signed statement and he swore to the truth of it by video-link on the hearing of his application for interlocutory orders. He was not cross-examined on the contents of the statement and his evidence was not controverted.
The applicant was detained at the Curtin Centre in Western Australia from his arrival in March 2001 until very recently. He described life in that centre as “very hard”. He said he has been in detention for so long that he is now exhausted and depressed. His memory is badly affected. He feels there is no hope left. He feels as if he has gone crazy. He feels as if his soul is not healthy and he is no longer human and his soul has gone. He feels like a fish that has just been caught, in its last moment before death. He gets frustrated very easily and doesn’t spend time with many other detainees at the centre. He did not feel like this before he was detained. There is nothing to do in the detention centre except sleep and eat. There is no work to do. He does not feel as if he has any control over his life.
In the Curtin Centre, the applicant developed an allergy to the extremely hot temperatures. The allergy takes the form of an irritating skin rash.
To some extent, this material needs to be updated. I was told from the bar table that, because of the impending closure of the Curtin Centre, the applicant and other detainees were moved to the new Baxter Centre, near Port Augusta in South Australia, on the weekend prior to the hearing of the application for interlocutory orders. It may be that the move to a place with a climate that is at times less humid and less hot than the north of Western Australia would have an alleviating effect on the applicant’s skin condition.
Counsel for the Minister urged me to take account of the history of the applicant’s case subsequent to 7 December 2001 on the balance of convenience. As I have said, consideration of the case by another delegate of the Minister led to a decision to refuse to grant a protection visa and that decision was affirmed by the Refugee Review Tribunal. Counsel for the Minister suggested that this increased the risk that the applicant would abscond, because he is aware that he will be removed from Australia and returned to Afghanistan if he should be unsuccessful in this proceeding.
In late July 2002, the applicant signed a form giving his consent to return to Afghanistan. He says that he did so because he was fed up, depressed and frustrated by remaining in detention. He says he only signed the form because he could not stand being in detention any longer. He still feared for his life if he returned to Afghanistan but at that time felt that anything was better than staying in detention. In his verified statement, the applicant retracted his consent to being sent back to Afghanistan.
As a condition of obtaining an injunction restraining his continued detention, pending the hearing and determination of the proceeding, the applicant was prepared to give undertakings. By his counsel, he gave the usual undertaking as to damages. He also undertook personally, through an interpreter in his own language, that he would accept release into the care of the Hotham Mission, would reside at a particular address in the eastern suburbs of Melbourne, would notify the Department of any change of his residential address within twenty-four hours of such change, would report on a weekly basis to the Department at its office in Lonsdale Street, Melbourne, would not leave the State of Victoria without permission of an officer in the Compliance Section of the Department and would attend court on the determination of his proceeding by the Court. The undertakings were given substance by a letter from the Hotham Mission, which was tendered without objection. According to this letter, the Asylum Seeker Project at Hotham Mission has secured housing for the applicant. A joint arrangement has been made between Hotham Mission and the Outer Eastern Asylum Seeker Support Group to provide ongoing support, housing, referral and material aid to him upon release from detention. The Hotham Mission will provide monthly cash assistance through its basic living assistance program as well as referral to other agencies for any necessary additional assistance. Referrals will also be made for medical and counselling services. A care plan has been prepared for the applicant to assure that he will receive ongoing support and companionship.
Apart from reliance on the subsequent history of the applicant’s case, the Minister offered no evidence going to the balance of convenience.
In my view, the protection of individual liberty is of such fundamental importance to the Australian legal system that the mere fact that the applicant is in detention must be given considerable weight in assessing the balance of convenience. It is not necessary for the applicant to show that he is suffering the effects of detention to a greater extent than other detainees, or even that he is suffering physically or mentally. Deprivation of liberty is never to be regarded lightly.
Having said this, I must accept the presently untested and uncontroverted statements of the applicant as to the effect that detention has had on his mental state. It is no surprise to be told that a year and a half of detention has had a mind-numbing and soul-destroying effect. The fact that the applicant was prepared to consent to return to Afghanistan, despite claiming that he fears for his life if he should do so, is indicative of desperation on his part to be released. There can be little doubt that release subject to the undertakings given will be of significant benefit to the applicant.
Pursuant to Div 10 of Pt 2 of the Migration Act, detainees are routinely charged a daily cost of their detention. If they are unable to pay, the cost is borne from public funds. The release of the applicant from detention would be of benefit to him in that he will not be liable for the continuing expense of his detention. It will also be of benefit to the public, as public funds will not have to be expended on the detention of the applicant in the event that he is not charged for that detention or is unable to pay. These benefits are offset to the extent to which money will have to be spent on the accommodation and maintenance of the applicant during his release. That money will come from a charity or charities and has therefore been contributed voluntarily by those prepared to undertake this type of burden. Financial considerations therefore favour the release of the applicant.
One factor favouring the release of the applicant is that, if he is successful, he will establish that he was granted a temporary protection visa on 7 December 2001. Such a visa ordinarily lasts for three years. The applicant has already spent more than the first ten months of his allotted three years in detention. If he is successful, he will be unable to extend the visa for a longer term, or to receive any form of substitution or compensation for the time lost.
Against these factors must be weighed the risk of the applicant absconding. Counsel for the Minister were inclined to suggest that there was a risk that he might leave the country. I pointed out that there was no reason to suppose that his departure from the country would be of concern to the Minister, since it is the Minister’s desire to remove him from Australia in any event. The real risk is that the applicant may succumb to the temptation to disappear into the community, in an attempt to evade the consequences of possible failure in this proceeding. His assertion of a continuing fear for his life if he should return to Afghanistan suggests that the possibility of his disappearance cannot be disregarded. Beyond this, there is nothing to suggest the existence of anything greater than the inherent likelihood that any person seeking a protection visa might prefer to disappear than to run the risk of being removed from Australia if unsuccessful. The philosophy underlying the provisions of the Migration Act relating to detention appears to be based strongly on this inherent likelihood. It must be said, however, that not all those who seek protection visas are detained. Those who have arrived in Australia holding other forms of visas and have then made applications for protection are routinely granted bridging visas, enabling them to go free while their applications are processed. The mere fact that someone is an applicant for a protection visa, and has a consequent inherent likelihood of wishing to disappear, cannot be regarded as an overwhelming factor.
The fact that the applicant will be in the care of volunteers, coupled with the safeguards in the undertakings he has given to the Court, reduce very substantially the risk that he will attempt to disappear. He will be aware that failure to report on a weekly basis will have the consequence that officers of the Department will institute a search for him immediately. His unfamiliarity with Australia and his lack of ability to converse in English would tend to make him easy to find. If such a search were to locate him, he would have little chance of persuading the Court that he should not be returned to immigration detention.
If the fact that the applicant is at liberty were to be of sufficient concern to the Minister, and if the truth is that the applicant would no longer be liable to persecution if he were to return to Afghanistan, it would be open to the Minister to concede that the applicant was granted a temporary protection visa on 7 December 2001, and to take steps to cancel that protection visa, on the ground of changed circumstances, pursuant to s 116(1)(a) of the Migration Act. Of course, the Minister would be required to take the correct procedural steps before making such a decision.
There is a clear balance of convenience in favour of releasing the applicant from detention, pending the hearing and determination of the proceeding, subject to the undertakings he gave to the Court.
The Court’s discretion
Even if it is established that there is a serious question to be tried and that the balance of convenience favours the grant of an interlocutory injunction, there is an overriding discretion in the Court not to grant such an injunction if sound reasons exist why it should be refused. Counsel for the Minister urged the exercise of that discretion against the applicant, principally on the ground that the scheme for the detention of unlawful non-citizens is such a crucial part of the Migration Act that to grant an interlocutory injunction restraining the detention of the applicant would be a violation of the basis of the legislation. As I have already pointed out, the provisions relating to detention relate only to unlawful non-citizens. The applicant has established that he has a serious case that he is a lawful non-citizen. If he is, the detention provisions do not apply to him at all. In any event, as I have said, not all those who seek protection visas are detained. In every case, it is necessary for the Court to determine whether it is appropriate to grant an interlocutory injunction. No reason has been shown in the present case why the Court should not exercise its discretion in favour of the applicant.
Conclusion
For the above reasons, I made the orders to which I have referred on 20 September 2002. They included an order prohibiting publication of the address at which the applicant has undertaken that he will live. Counsel for the applicant sought this order with a view to protecting the applicant’s privacy. Counsel for the Minister did not oppose it. It seemed to me appropriate to try and protect the applicant from unsolicited attempts to interview him by representatives of the media.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.
Associate:
Dated: 8 October 2002

Counsel for the Applicant: Ms D Mortimer with
Mr R M Niall (both appearing pro bono)

Solicitor for the Applicant: Holding Redlich

Counsel for the Respondent: Mr C Gunst QC with
Mr W S Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 18 September 2002
20 September 2002

Date of Judgment: 8 October 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 594 of 2002

BETWEEN:	VHAF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	20 SEPTEMBER 2002
WHERE MADE:	MELBOURNE

JUDGE:	GRAY J
DATE:	8 OCTOBER 2002
PLACE:	MELBOURNE

Counsel for the Applicant:	Ms D Mortimer with Mr R M Niall (both appearing pro bono)
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent:	Mr C Gunst QC with Mr W S Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 September 2002 20 September 2002
Date of Judgment:	8 October 2002