Xie v Immigration Department
[1999] FCA 365
•1 APRIL 1999
FEDERAL COURT OF AUSTRALIA
Xie v Immigration Department [1999] FCA 365IMMIGRATION – PRACTICE AND PROCEDURE – motion to dismiss proceeding generally as disclosing no reasonable cause of action – applicant out of time in lodging application for review of Refugee Review Tribunal’s decision – whether any other reviewable decision – whether sufficiently clear that applicant was an unlawful non-citizen – whether respondent required to remove applicant as soon as reasonably practicable, without any decision being involved – whether application should be permitted to go to trial – conflicting evidence in departmental records – applicant held temporary entry permit at one stage – was eligible for permanent entry permit – no present evidence of having applied for permanent entry permit – departmental records indicating (wrongly on respondent’s case) that Bridging Visa issued to applicant at another stage – complex legislative and regulatory regime – applicant unlikely to succeed at trial – but not sufficiently clear that case against applicant must fail – need for exceptional caution to be exercised before striking out application – motion dismissed.
Federal Court Rules Order 20 r(2)(1)
Migration Act 1958 (Cth), ss 6(1), 8(1)(d), 8(3)(c)(i), 13, 14(2),(3), 20(1),(5),(5A), 22(1), 47, 198(6), 430, 478
Migration Legislation Amendment Act (No 59 of 1989), s 6(2)(a), (b)
Migration (1989) Regulations, reg 119E, 119H
Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No 1) reg 18
Migration Reform Act 1994
Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No 237) regs 22, 23, 38Migration (1993) Regulations Parts 437.52, 815.512, 815.521, 815.721
Migration Reform (Transitional Provisions) Regulations (Statutory Rules 1994 No 261) regs 4, 5, 10, 16
Migration Regulations reg 5.02Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied
Pathmanathan v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Full Court, 14 May 1998) followedXIE WEI MING v IMMIGRATION DEPARTMENT
WG 172 of 1998CARR J
PERTH
1 APRIL 1999
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WG 172 of 1998
BETWEEN:
XIE WEI MING
ApplicantAND:
IMMIGRATION DEPARTMENT
RespondentJUDGE:
CARR J
DATE OF ORDER:
1 APRIL 1999
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The time for filing and service of the respondent’s notice of motion filed on 19 February 1999 and the supporting affidavit of Peter John Corbould sworn on 19 February 1999 be extended to 24 February 1999.
2.The respondent’s abovementioned motion be dismissed.
3.The applicant’s motion filed on 10 March 1999 be dismissed.
4.Costs be reserved in each motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WG 172 of 1998
BETWEEN:
XIE WEI MING
ApplicantAND:
IMMIGRATION DEPARTMENT
Respondent
JUDGE:
CARR J
DATE:
1 APRIL 1999
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
This is a motion on notice filed by the respondent on 19 February 1999 seeking orders that the applicant’s application for an order of review be dismissed, under Order 20 rule 2(1) of the Federal Court Rules, as disclosing no reasonable cause of action. In effect the respondent seeks summary judgment. I shall refer to the respondent as if it were the Minister for Immigration and Multicultural Affairs. The respondent also seeks an extension of time for filing and serving the motion and supporting affidavit. The applicant, who is unrepresented, has also filed a document by which he moves for summary judgment in his favour. These reasons also deal with that motion.
Application to extend time for filing and service of respondent’s notice of motion
When the principal application first came on for directions, on 2 December 1998, I made an order that the respondent file any affidavits or motion to strike out, or the like, within 14 days. The notice of motion and a supporting affidavit were not filed until 19 February 1999, some two months out of time. They were served fairly promptly thereafter, on 24 February 1999. The only explanation offered by the respondent is that his solicitor needed more time to receive and consider further files from the respondent’s Department in relation to the applicant’s immigration history. Normally that would not be regarded as a particularly satisfactory explanation in the absence of any reasonably concurrent application to extend time. However, for several reasons I have decided to extend the time for bringing this motion. The first is that the applicant consents to the extension of time, but I take into account that he is unrepresented. Secondly, as Mr P R Macliver, counsel for the respondent, pointed out, the immigration history of the matter stretches back a long time. Old files had to be obtained. Thirdly, I consider that it was potentially in the interests of the applicant that his immigration history and any possible entitlement to remain in Australia be explored to the fullest extent. Fourthly, a central basis of this motion is that this Court lacks jurisdiction to hear the underlying application. If, as the respondent contends, this Court lacks jurisdiction, or no reasonable cause of action is disclosed, then such matters should be dealt with as soon as possible. There will be an order extending time, in the terms of paragraph 1 of the amended motion.
The Factual Background and Legislative Framework
I now turn to the factual background disclosed in the affidavit first filed in support of the motion, being the affidavit sworn by Mr Peter John Corbould (a solicitor employed by the Australian Government Solicitor) on 19 February 1999. I shall refer to that affidavit as “Mr Corbould’s affidavit”.
The applicant is a citizen of the People’s Republic of China. Until the events which I am about to describe, he was a seaman employed by the China Ocean Going Shipping Company. On 5 November 1985 he deserted the vessel “Tian Ling”, at Port Hedland. The ship left port on 6 November 1985. The applicant thereby became a “prohibited non-citizen” – see ss 6(1), 8(1)(d) and 8(3)(c)(i) of the Migration Act 1958 (Cth) (“the Act”) as applicable on 6 November 1985. The applicant disappeared into the Australian community. On 18 November 1988 a delegate of the Minister, acting under s 18 of the Act, signed an order that the applicant be deported from Australia. Under the provisions of s 6(2)(a) of the Migration Legislation Amendment Act (No 59 of 1989), which came into force on 19 December 1989, the applicant, being a prohibited non-citizen immediately before the commencement of that section, became “an illegal entrant”. Under s 6(2)(b) of that amendment Act the applicant was thereafter to be taken for all purposes to have become an illegal entrant because of the provisions of s 6 of the Act that most closely corresponded with the provision of the Act as in force before 19 December 1989 because of which the person became a prohibited non-citizen. Section 6(2)(c) provided that such a person remained an illegal entrant until he or she stopped being an illegal entrant under the Act.
Section 22(1) of the Act as in force at 19 December 1989 relevantly provided (so far as the applicant was concerned) that he stopped being an illegal entrant if and when an entry permit was granted to him and not otherwise. I say “so far as the applicant was concerned” on the assumption that s 14(2) did not apply to him, in particular because the evidence did not conclusively show that he was a person to whom s 20(1) applied i.e. by evading an officer or the like. At this stage the evidence is such that, in my opinion, it is quite possible that, rather than evading an officer, the applicant presented himself to the officer at the wharf gate at Port Hedland, but did not come back to the wharf. The only evidence of what happened in Port Hedland on 5 November 1985 was that he did not appear on watch as required at 1200 hours and could not be found on the vessel [see Exhibit “PJC1” to Mr Corbould’s affidavit]. I return to the chronology of events and their apparent inter-relationship with the persistently changing, and often complex, statutory and regulatory regime. On 18 January 1990 the applicant applied for a “PRC entry permit (Class 434)” being an entry permit for persons who were illegal entrants in Australia on 20 June 1989. I shall refer to that entry permit as a “Class 434 entry permit”. That permit was added to the Migration (1989) Regulations by the Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No. 1 dated 12 January 1990). Regulation 18 of those amending regulations inserted regulations which included a new Regulation 119E, which in sub-regulation 119E(1) specified the following criteria as being prescribed in relation to what was described in that sub-regulation as a “PRC citizen entry permit”, namely:
“(a) the applicant is a citizen of the People’s Republic of China;
(b)the applicant was present in Australia on 20 June 1989 and was, on that day, an illegal entrant; and
(c)the applicant applies in Australia for the entry permit not later than 31 March 1990.”
Sub-regulation 119E(2) further provided that a PRC citizen entry permit was not to be granted except as a temporary entry permit, and except in respect of a period ending not later than 31 January 1991, and unless granted subject to the condition specified in s 33(4)(a) of the Act. The condition specified in that paragraph was that the temporary entry permit would be taken not to be a valid temporary entry permit for the purposes of s 47. Section 47 was concerned with the grant of permanent entry permits to non-citizens after entry into Australia. Regulation 18 [of these Migration Regulations (Amendment) Regulations], not having a specified date, was deemed to take effect from notification in the Gazette – see s 48(1)(b)(iv) of the Acts Interpretation Act 1901 (Cth). The note at the end of those regulations indicates that they were notified in the Commonwealth of Australia Gazette on 15 January 1990.
I was told from the bar table that many thousands of Chinese citizens in Australia at that time applied for a Class 434 entry permit. On the evidence which was before me when this motion was first heard on 10 March 1999, there was nothing to show what had become of the applicant’s application for a Class 434 entry permit. The motion was adjourned partly so that further enquiries could be made. It was also partly due to a paragraph on the first page of a memo prepared by Mr Michael Alan Cain (an officer of the respondent) on 7 May 1998, which was annexed to Mr Corbould’s affidavit at page 71, that the motion was adjourned part heard. That paragraph referred to the circumstance that a Bridging Visa sub-class C had been granted to the applicant by operation of law on the proclamation of the Migration Reform Act on 1 September 1994. Enquiries were to be made also in relation to that matter. Those enquiries resulted in the filing of an affidavit of Mr Cain sworn on 19 March 1999. Mr Cain has been an officer of the Department of Immigration and Multicultural Affairs and its predecessors for approximately 29 years and is the officer in charge of the Compliance Section of the Department in Perth. He deposed to enquiries which he had made on 16 April 1998 concerning the applicant’s visa status when the applicant contacted the Immigration Department on that date. Annexed to Mr Cain’s affidavit were computer print-outs in relation to the applicant which he had obtained on that date. Those documents comprised two pages of a “visa enquiry print-out”, a “movements details report”, a “client application and status report” and two pages of an “operational enquiries print-out”. Mr Cain swore that the movements details print-out recorded the fact that the applicant had been granted a PRC (temporary) entry permit (Class 437) (which I shall refer to as “Class 437 entry permit”) which had expired on 30 June 1994. The third page of annexure “MAC1” appears to confirm this. But that same document also refers to a visa having been granted to the applicant on 1 September 1994. Mr Cain swore that the other computer reports recorded the fact that the applicant had an undetermined application for an entry permit which was receipted on 8 July 1993. In relation to that application Mr Cain deposed as follows:
“Because that application was not recorded as finalised on the Department’s computer database, the applicant was automatically granted a bridging visa class C on 1 September 1994. The grant of the bridging visa is recorded on the visa enquiry and movements details printouts annexed hereto.”
Mr Cain further swore that, following the applicant’s request on 16 April 1998 that he be taken into Immigration Detention, he cancelled the applicant’s Bridging Visa Sub-Class C “on the Department’s computer records”. Annexure “MAC2” is a copy of a recent print-out from the Department’s computer database recording Mr Cain’s “cancellation” of the applicant’s Bridging Visa Sub-Class C. Mr Cain swore that he had perused “copies of the Department’s files in relation to the applicant” and confirmed that the only applications for visas or entry permits made by the applicant were those referred to in Mr Corbould’s affidavit. Mr Cain swore that those applications have all been finalised in the following manner:
·In the case of the Class 437 entry permit, by being granted.
[The matter of the Class 437 entry permit is dealt with immediately below.]
·In the case of the protection visa and bridging visa E applications, by being refused. [The protection visa and bridging visa E applications were made much later and are dealt with later in these reasons.]
·In the case of the PRC citizen entry permit Class 434, by lapsing due to the limited period for which a class 434 entry permit could be granted and the subsequent repeal of that class of entry permit. In this regard, Mr Cain deposed “There is no record on the Department’s files or on its computer database that the applicant was granted a Class 434 entry permit”.
There is unchallenged evidence that on 19 May 1993 and again on 15 June 1993 the respondent’s State Director for Western Australia sent to the applicant a “Form 889”. That form was an application for a PRC (temporary) entry permit (Class 437). I shall refer to that as a Class 437 entry permit. I shall briefly outline the genesis of Class 437 entry permits. I am grateful to the respondent’s solicitor (i.e. the Australian Government Solicitor) for the assistance which I have been given in tracing through these regulatory provisions. The Migration (1989) Regulations were further amended in 1990 by the Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No. 237 dated 11 July 1990). Regulation 22 of those amending regulations repealed Regulation 119E of the Migration (1989) Regulations. Regulation 23 inserted a new Regulation 119H which prescribed the criteria in relation to a new PRC (temporary) entry permit. Regulation 38 amended Schedule 3 to the Migration (1989) Regulations to include this new category of entry permit as Class 437. Regulation 23 commenced on 1 August 1990 (see Regulation 1(7) of Statutory Rules 1990 No. 237). Regulation 22 (repealing Regulation 119E) came into effect when notified in the Commonwealth of Australia Gazette on 12 July 1990. On 16 June 1993 the applicant completed the application form for a Class 437 entry permit and lodged it with the respondent’s Department. On 8 July 1993 the deportation order issued against the applicant on 18 November 1988 was revoked and, according to one part of the respondent’s records, the applicant was on that date (i.e. 8 July 1993) granted a Class 437 entry permit which permitted him to stay in Australia until 30 June 1994. Regulation 119H(3) provided that a PRC (temporary) entry permit was not to be granted except as a temporary entry permit, and for a period ending on 30 June 1994. It would have been open for the applicant until that date to have applied for a PRC (permanent) entry permit. Part 815.512 of the Migration (1993) Regulations relevantly provided that an application for a PRC (permanent) entry permit (also known as a “Class 815 entry permit”) had to be made on or before 30 June 1994. That was an entry permit which had effect without limitation as to time (see Part 815.521). The applicant would have satisfied the criteria for a Class 815 entry permit on two different bases. First, because until 30 June 1994 he held a Class 437 PRC (temporary) entry permit [see 815.721(1) and (2)(a)] and, secondly, because he was a citizen of the People’s Republic of China, had been recorded as having entered Australia before 20 June 1989 and was in Australia on 20 June 1989 [see 815.721(3)]. However, the present state of the evidence is that the applicant did not apply for a Class 815 entry permit. It will be remembered that, according to one part of the respondent’s records, the applicant was granted a Class 437 entry permit on 8 July 1993. The period of a Class 437 entry permit was (as from 1 February 1993) governed by Part 437.52 of the Migration (1993) Regulations. If the holder had applied for a Class 815 PRC (permanent) entry permit, then its period would have extended until a decision was made on that application and the holder had been notified. In any other case, the period of the entry permit was until the end of 30 June 1994. Accordingly, it can be seen that (on the assumption that the applicant had not applied for a Class 815 entry permit) his Class 437 entry permit expired on 30 June 1994. Subject to the further matter of whether the applicant was granted a Bridging Visa Sub-Class C on 1 September 1994, the applicant then ceased to have a valid entry permit and thus became an “illegal entrant” under s 6(3) of the Act which was subsequently re-numbered as s 14(3). I now turn to the matter of the Bridging Visa Sub-Class C.
At folio 71 of Mr Peter Corbould’s affidavit there appears portion of a statement made by Mr Cain and dated 7 May 1998, being the statement to which I have referred earlier in these reasons. That statement is to the effect that on 1 September 1994, through operation of law, on the proclamation of the Migration Reform Act, a Bridging Visa Sub-Class C was granted to the applicant. Mr Cain also recorded that that visa was cancelled on 16 April 1998. At the initial hearing of the motion counsel for the respondent said that it had no record of such cancellation. However, in paragraph 10 of his affidavit Mr Cain deposes as follows:
“10. Although I cannot explain the reason for the error, the Department’s computer records on 16 April 1998 incorrectly recorded that the applicant had an application for an entry permit receipted on 8 July 1993 which was not finalised and, as a consequence, was the holder of a bridging visa class C granted on 1 September 1994.”
It appears from paragraphs 7, 8 and 9 of Mr Cain’s affidavit that when the applicant applied for the Class 434 entry permit on 18 January 1990 he paid the sum of $30, being the requisite fee payable on that application. A copy of the receipt in respect of that payment, being a receipt dated 18 January 1990, is annexure “MAC4” to Mr Cain’s affidavit. Annexure “MAC3” to that affidavit is another Departmental receipt, dated 8 July 1993. On its face it records the receipt of $000000000.00. The “Service” box contains the notation “Further TEP”. Payment details are given as “cash”. There is a comment at the foot of the receipt which appears (the photocopying is imperfect) to read “PC – PRC permit paid in 1990”. Mr Cain swore that both the Class 434 and the Class 437 entry permits had an application fee of $30. He suggested in his affidavit that the fee paid by the applicant on 18 January 1990 was applied to the payment of the fee payable for his Class 437 entry permit. It looks very much as though Mr Cain’s suggestion is correct. I would so find with little hesitation if there had been a final hearing of this matter, if all the evidence had been thoroughly tested and if all the regulatory provisions had been scrutinized and applied to facts clearly established on the evidence. For present purposes, all I can say is that on the present state of the evidence I am prepared, for the purposes of disposal of this motion, to find (and I do find) that on the balance of probabilities what Mr Cain suggested about the transfer and application of the $30 fee from the application for the Class 434 entry permit to the Class 437 entry permit did in fact happen. Mr Cain also swore that there was no record on the Department’s file in relation to the applicant of any application receipted on 8 July 1993 other than his application for a Class 437 entry permit which was granted on that date.
I was taken by counsel to the Migration Reform (Transitional Provisions) Regulations (Statutory Rules 1994 No 261) upon which Mr Cain appears to have relied for his original statement concerning the grant to the applicant of a visa by operation of law. When the motion was first heard there was some debate about whether Mr Cain’s assessment was correct. The relevant regulation is Regulation 16 of those Regulations. I deal with that matter below, not on the basis of whether Mr Cain’s assessment was correct, but on the basis of whether it is reasonably arguable that the applicant fell within the terms of Regulation 16 and, by virtue of other regulations referred to therein, became entitled to a transitional visa and is not liable to removal from Australia under s 198 of the Act as “an unlawful non-citizen”.
The respondent, in his written submissions, submitted that Mr Cain was incorrect in stating that on 1 September 1994 the applicant had been granted a bridging visa sub-class C through operation of law. This was because although some of the Department’s computer database records indicated that the applicant’s application for a Class 437 entry permit had not been determined, those records were incorrect. A Class 437 entry permit had been granted to the applicant on 8 July 1993. It was submitted that there was no evidence that the applicant had made any other visa application which remained undetermined as at 1 September 1994. Accordingly, so it was submitted, the applicant was not granted a Bridging Visa Sub-Class C by operation of law, and Mr Cain’s purported revocation of such a visa was of no force or effect.
Whether or not such a visa was granted to the applicant by operation of law, the present state of the evidence is that the respondent’s records show that the applicant was granted a bridging visa being what is described as a “BV GEN” on 1 September 1994. I am prepared to assume or infer that the BV stands for bridging visa. GEN may well stand for general but that would be impermissible speculation on my part. I set out below the Visa Enquiry made by Mr Cain on 16 April 1998 which provided the information to which I have just referred.
MRV100M4 Visa Enquiry 16/04/1998
Personal Details Page 2 of 4
Family Name : XIE DOB : 05/08/1957 Sex : M
Given Names : WEI MING Passport : Citz :Grant No : 2008900113216 Z Visa Id : COB : PRCH
App’n Id : Person Id : 0028359265
In Effect Date : Application Details Visa Informat.Code: Application Id: Visa Conditn.Codes: 8101 Sub. Application Id: PE3091100067371 : App’n Added Time: 23:24:13 : Applicant’n Added User Id: BV GEN Visa Record Type: G Grant only Application Date: 08/07/1993 Visa Extract Date: 05/11/1994 Visa Grant Details Visa Class’n: Issued/Granted By: BV GEN Issuing Post: 200 Batch: 267 ETA Authorised By: Multi Issued Flag: Granted Date: 01/09/1994 Assisted Mig. Flag: Grant Location Code: 1 Travel Agency Code: Granted By System: AT Travel Agency Cntry: Granted By Type Code: 1 Enter --------------PF3---------------------------------------PF7----------PF8--------PF9------------PF12-------------
Cont Exit Bkwd Fwd New Enq Main Menu
The respondent says, as I have mentioned, that Mr Cain’s purported revocation of such a visa was of no force or effect. That was because no such visa had been created by operation of law, contrary to what Mr Cain had thought to be the case. I deal with this matter further below, but in the meantime I return to my narrative of the facts.
The respondent’s Department had no further contact with the applicant until 16 April 1998 when, according to the evidence, he telephoned the Immigration Detention Centre and asked to be detained. The Department detained him and he remains in Immigration Detention.
On or about 29 April 1998 the applicant lodged an application (Part A of which was dated 24 April 1998) for a protection visa. On 6 May 1998 he applied for a Bridging Visa E. It would appear that the applicant did this so that he could be released from detention. On 7 May 1998 the respondent refused the application for a Bridging Visa E for reasons which included concerns that he would abscond. On 3 June 1998 a delegate of the Minister refused the applicant’s application for a protection visa. By application dated 5 June 1998 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision to refuse to grant him a protection visa. On 26 June 1998 the Tribunal affirmed the decision not to grant a protection visa to the applicant. On 29 June 1998 the Tribunal sent a letter to the applicant advising him of the Tribunal’s decision. He was then, and (as I have mentioned) still is, in Immigration Detention in Perth. There is sufficient evidence, in my view, to establish that the applicant received notice of the Tribunal’s decision no later than 14 July 1998. Section 430 of the Act relevantly requires the Tribunal to give the applicant a copy of the statement setting out its decision, reasons for decision, findings and references to evidence or other material. I shall refer to that document in this matter as “the Statement”. Regulation 5.02 of the Migration Regulations relevantly provides that a document to be served on a person in Immigration Detention, may be served by giving it to the person himself or herself or to another person authorised by him or her to receive documents on his or her behalf. At page 85 of Mr Corbould’s affidavit there appears a copy of the applicant’s application to the Tribunal for review. It can be seen that the applicant ticked the box indicating his wish that copies of correspondence from the Tribunal “go to” his adviser. Immediately above that box the applicant identified his adviser as being Ms Vanessa Moss of Legal Aid Western Australia 55 St George’s Terrace, Perth W.A. 6000. A telephone number and a fax is also given. At page 102 of the same affidavit there is a copy of a fax transmission and a transmission report from which I am satisfied that a copy of the Statement was faxed to Ms Moss on 29 June 1994. At page 103 there appears a fax transmission to the Centre Manager Compliance, of the Department’s office in Perth transmitting a copy of the Statement and requesting that it be passed immediately to the applicant. There is no evidence that the Centre Manager did this. However, in a letter dated 14 July 1998 from the applicant to the respondent, the applicant stated that his application for a protection visa had been refused by the respondent’s Department and by the Refugee Review Tribunal. I am satisfied that s 430 of the Act was complied with and that the applicant was notified of the Tribunal’s decision not later than 14 July 1998. By letters dated 2, 14 and 16 July 1998 from the applicant and two others on his behalf, the Minister was requested to consider exercising his Ministerial discretion under s 417 of the Act to substitute for the Tribunal decision, a decision more favourable to the applicant. After considering the applicant’s case, the Minister decided to not exercise that power.
On 20 November 1998 the applicant filed in this Court an application for an order of review. As I have mentioned, the applicant is not legally represented in these proceedings. The decision which he identifies in his application is described as “… the decision of the Immigration Department to deport the applicant …”. The grounds set out in the application are as follows:
“1)In 1989, when Tien An-Men massacres occurred, the government issued an order: Stop prosecuting Chinese citizens who were already in this country and none of them would be forced back to China. I am one of them. That order has not been cancelled.
2)The applicant under difficult circumstances, not allowed to work without proper status, without social support and benefit, managed to live in W.A. for 13 years which itself is evidence of the commitment of the applicant to the country and to the communities.
3)The applicant is in good health, skilled, educated, and honest, has good references, speaks, reads and writes good English and does not have any criminal record here or in China. If given a chance Xie Wei Ming would make a good contribution to society.”
The Grounds for the Motion
The respondent makes his application under Order 20 rule 2(1) of the Federal Court Rules. He contends that the application should be dismissed on the grounds that no reasonable basis for it is disclosed, that it is frivolous or vexatious, or is an abuse of the process of the Court, for the following reasons:
(a)The application purports to review a decision to deport the applicant. No such decision has been made by any officer of the Department.
(b)The applicant does not hold a visa and is an unlawful non-citizen within the meaning of s 14 of the Act. The applicant has been detained by officers of the Department under s 189(1) of the Act and is required to be removed from Australia as soon as reasonably practicable pursuant to s 198(6) of the Act.
(c)The application does not disclose any basis upon which the applicant should not be removed from Australia.
(d)The Federal Court does not have jurisdiction to review the Tribunal’s decision made on 26 June 1998 as the application to this Court for an order of review was not lodged within 28 days of the applicant being notified of the Tribunal decision as required by s 478(1) of the Act.
My Reasoning
As I have mentioned, the respondent seeks summary judgment. He is not entitled to this unless it is apparent that there is no real question to be tried. Exceptional caution must be exercised before summary judgment is ordered. I shall not recite the authorities; they are all well known. The question is (and this applies to all of the matters raised by the respondent) whether it is clear that the applicant must fail if this application were to go to trial.
I shall deal first with the first three reasons advanced by the respondent. The starting point for the first two reasons advanced by the respondent is whether it has been sufficiently established that the applicant is “an unlawful non-citizen”. If so, and providing the conditions set out in s 198(6) are satisfied, then Parliament has provided in mandatory terms that an officer of the respondent’s Department must remove the applicant as soon as reasonably practicable. It is apparent from the evidence that the applicant is a non-citizen. The further conditions are as follows. First that the non-citizen is a detainee. It is common ground that the applicant is a detainee in Immigration Detention. The next condition is that the non-citizen has made a valid application for a substantive visa that can be granted when the applicant is in the migration zone, and, relevantly that the grant of the visa has been refused and the application has been finally determined. The evidence establishes that the applicant applied for a protection visa. It is clear that the grant of the protection visa has been refused. Whether that application has been finally determined depends on whether there is any possibility of review by this Court of the Tribunal’s decision. I shall return to that matter in a moment. In relation to the condition contained in s 198(6)(d) i.e. whether the applicant has made another valid application for a substantial visa which can be granted while he is in the migration zone, there is no evidence to that effect. In his letter dated 14 July 1998 the applicant stated that he does not know the result of his application for a Class 437 temporary entry permit which he made in mid 1993. One part of the respondent’s evidence shows, as I have mentioned earlier, that that application was granted and that he was permitted to stay in Australia until 30 June 1994.
I return to the question whether the applicant is an unlawful non-citizen. Section 13 of the Act provides that a non-citizen in the migration zone who holds a visa that is in effect, is a lawful non-citizen. I think that one can safely imply that one cannot be a lawful non-citizen other than by qualifying under s 13. I so conclude for the purposes of this application. Section 14 provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. If the evidence before the Court were sufficiently clear, to the requisite standard on a strike-out motion, that the applicant does not hold a visa, then s 14 would deem him to be an unlawful non-citizen. Subject to the question of the reviewability or otherwise of the Tribunal’s decision to refuse the applicant’s application for a protection visa (for the reasons which I set out below I have come to the conclusion that there is no such possibility of review) there would be no reviewable administrative decision involved. Section 198(6) would operate automatically upon an unlawful non-citizen who comes within its terms. However, the evidence at this stage of the proceedings is that the Immigration Department’s computer records show that on 1 September 1994 the applicant was granted a bridging visa. It is part of the respondent’s case that Mr Cain’s purported revocation of that visa was of no force or effect. In those circumstances, can it fairly be said that the applicant must fail if the application is permitted to go to trial? Is it clear that there is no real question to be tried? I proceed on the basis that the applicant may, at trial, want to argue that s 198 of the Act does not apply to him i.e. Parliament does not require him to be removed. If he is proved right in that argument and he is still to be deported, that must be because someone has decided to deport him. If so, he seeks to challenge that decision. This is not the occasion on which to debate whether that decision is a judicially-reviewable decision within the meaning of s 475 of the Act. Further questions may well then arise as to the legality of his detention and the like. It is necessary to examine very carefully, two matters, namely, the Bridging Visa Sub-Class C question and the significance, if any, of the Class 434 entry permit application made by the applicant on 18 January 1990. I am conscious of the usual restrictions applicable to a motion for summary judgment under Order 20 rule 2. The regulatory framework relevant to the disposal of this matter is, to say the least, somewhat intricate and complex. However, unless there is a factual issue to be decided, that circumstance in itself does not preclude a court from summary intervention: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J.
The Bridging Visa Sub-Class C
One most likely regulation under which a Bridging Visa Sub-Class C might have been issued to the applicant was Regulation 16 of the Migration Reform (Transitional Provisions) 1994 (Statutory Rules 1994 No. 261). That Regulation relevantly provided that it applied to a non-citizen who was in Australia on 1 September 1994, was immediately before that date, a person to whom s 20 of the Act as in force immediately before 1 September 1994 (“the old Act”) applied and did not immediately before 1 September 1994 hold an entry permit or entry visa endorsed as required by s 20(5) or (5A) of that Act, subject to certain exceptions. Regulation 16(2) relevantly provided that if a non-citizen to whom the regulation applied, held an entry permit or entry visa at some time before 1 September 1994, he or she is taken to have been granted, on 1 September 1994, a transitional visa of the same class as he or she would hold under Regulation 4 or 5 if s 20 had not applied to him or her immediately before that date. The respondent submitted that the applicant did not fall within the terms of Regulation 16 because he was not a person to whom s 20 of the old Act applied and, alternatively, because Reg 16(1)(c) was to be interpreted as requiring an applicant to have held an entry permit immediately before 1 September 1994, but being an entry permit not endorsed as required by s 20(5) or (5A) of the old Act. In oral submissions when the motion was first before the Court, Mr Macliver, having first submitted that the applicant was not a person to whom s 20 of the old Act applied immediately before 1 September 1994, then expressed the view that the applicant was a person to whom s 20 applied. The respondent then relied solely (save for the exclusion referred to below) on the construction of Reg 16(1)(c) which I have outlined immediately above. In my view, in the context of a strike-out motion, it is strongly arguable that the applicant did satisfy Reg 16(1)(c). Immediately before 1 September 1994 he did not hold an entry permit or entry visa at all. Accordingly, on the literal reading of that sub-paragraph, he did not immediately before 1 September 1994 hold an entry permit or entry visa endorsed as required by s 20(5) or (5A) of the old Act. Nothing in that construction would conflict with the evident purpose of Regulation 16, expressed in its heading “Non-citizens who became illegal entrants because of s 20 of the old Act”. The applicant, on the respondent’s own argument, became an illegal entrant on 1 July 1994. If that argument were to be successfully advanced at trial on behalf of the applicant, then Reg 16(2) would be seen to have done its work and the applicant, by force of that sub-regulation, is to be taken to have been granted on 1 September 1994 a transitional visa of the same class as he or she would hold under Reg 4 or 5 if s 20 had not applied to him immediately before that date. The respondent relied on Reg 16(1)(f) as excluding Regulation 16 from applying to the applicant. This was on the basis that the applicant was the holder of an entry permit that in any event would have ceased to have effect before 1 September 1994. There is some grammatical difficulty arising from the use of the word “was” in conjunction with the words “would have ceased” in that sub-paragraph. If the facts were found, after a hearing, to be as the respondent contends, I think that the applicant’s situation would fall within Reg 16(1)(f) on the basis that he was the holder of an entry permit that ceased to have effect before 1 September 1994, notwithstanding the grammatical difficulty which I have identified. Assuming, in favour of the applicant that Reg 16(1)(f) did not exclude Reg 16 from applying to him, it seems likely that the application of that regulation would not be of any assistance to him. That is because (on the respondent’s version of what happened to the applicant’s application for a Class 437 entry permit) he would not have held a temporary entry permit under either Regulation 4 or Regulation 5, because both those regulations required, in his case, a temporary entry permit to be in force immediately before 1 September 1994. I shall state, as succinctly as possible, the reasons why (on the factual assumption referred to above) neither Regulation 4 nor Regulation 5 of the Migration Reform (Transitional Provisions) Regulations applied to the applicant. It seems clear (on the present state of the evidence) that Regulation 4(1) did not apply to the applicant because he was not the holder of a permanent entry permit. It seems sufficiently clear that sub-reg 4(2) would not apply to the applicant because he would not have been, immediately before 1 September 1994, in Australia as the holder of a temporary entry permit. It will be recalled that (assuming he had been issued with a Class 437 entry permit) that entry permit had expired on 30 June 1994. It also seems to be clear, to the requisite degree of satisfaction, that Regulation 5 did not apply to the applicant because he was not in Australia immediately before 1 September 1994 as the holder of a permanent entry permit or a permanent entry visa. So what looked, initially, like a promising avenue from the applicant’s point of view, looks very much as though it is a regulatory dead-end. By that I mean that, again on the present state of the evidence, the respondent will probably succeed on this issue at the trial of this matter.
The Class 434 Entry Permit
This was the entry permit for which the applicant applied on 18 January 1990. There is no evidence that that application was granted. If it was not granted by 12 July 1990 then, putting the applicant’s case at his highest, it might be said that he had an accrued right [within the meaning of s 8(c) of the Acts Interpretation Act] to the grant of a Class 434 entry permit. But under the relevant regulations, which I have set out earlier in these reasons, that right would have been only to the grant of a Class 434 entry permit valid until 31 January 1991. The status of the applicant’s application for this Class 434 entry permit arises out of Regulation 10 of the Migration Reform (Transitional Provisions) 1994 Regulations. That regulation relevantly provided (in terms of its potential application to the applicant) that if his application for a Class 434 entry permit had “not been finally determined” [see Reg 10(1)(a)] then he was to be taken to have been granted a Bridging Visa Sub-Class C [see Reg 10(2)(c)]. Could it reasonably be argued that the applicant’s application for the Class 434 entry permit had “not been finally determined”? I think that the answer to that question is “yes”. It is the sort of question which, particularly in the factual circumstances of this matter, should be determined after a full hearing. At this stage, I acknowledge the considerable force of the respondent’s argument that the regulatory regime having changed, there was simply no Class 434 entry permit to be granted to the applicant. As a matter of construction of Regulation 10, there is much to be said for the proposition that the application for that entry permit had been finally determined. But in my opinion it is not clear, to the requisite degree, that the argument must fail.
The Departmental Records
One part of the Immigration Department’s computerised records (see sheets 4, 5 and 6 of Annexure “MAC1” to Mr Cain’s affidavit) appears to show that the applicant’s application for a Class 437 temporary entry permit, (a receipt for which was issued on 8 July 1993) had not been recorded as finalised. Another part (see p 3 of Annexure “MAC1”) appears to show that that application had been granted i.e. the applicant had been granted a Class 437 entry permit which expired on 30 June 1994. The regulations to which I have referred above make it quite clear that any Class 437 entry permit current immediately before 30 June 1994 expired on that date. However, I think that the facts of this matter need to be found unequivocally on the balance of probabilities after a hearing, before the regulations are construed and applied to the applicant. Not without a considerable degree of hesitation, I have come to the conclusion that this is one of those matters where it is a reasonable inference that the respondent will probably be successful at trial if the evidence remains in its present state. However, the authorities show that that is not the test to be applied. There are some factual uncertainties to be resolved and complex regulations to be considered in the light of such factual findings. The factual uncertainties include whether the Class 437 entry permit was granted and why the Bridging Visa Sub-Class C was granted. Lurking in the background is the possibility that it might have been granted because the applicant or someone on his behalf applied for a permanent entry permit (as would normally have been the case when a Class 437 (temporary) entry permit had been issued to a person who was qualified to remain indefinitely and wanted to do so). The Department’s records, as obtained to date, may not be complete. I have mentioned some of their deficiencies. All these issues can be explored if the applicant’s case is properly prepared and presented. Something may need to be attempted in that regard so that the possibility that the applicant may have had an application for a visa which had not been finally determined as at 1 September 1994 can be established one way or the other on a final basis. There are the other “loose ends”, to which I have referred above, which need to be tied up.
Strictly speaking, in those circumstances, it is not necessary for me to consider the fourth ground upon which the respondent’s motion is based. However, I shall do so briefly. The fourth ground challenges this Court’s jurisdiction. The question is, to the extent that the applicant may be seeking to review the Tribunal’s decision, and on that assumption, does this Court have any jurisdiction? In written submissions faxed to the Court on 26 February 1999 the applicant gives what he describes as “exceptional reasons” for not appealing to this Court in time. First he says that his “Legal Aid” lawyer told him that he had no chance of appealing to this Court, that during the trial the Tribunal gave him several hints to try an alternative course, and that someone suggested that he seek the Minister’s help instead of coming to this Court. The applicant then makes reference to an attempt to escape from detention and having been put into the Canning Vale Remand Centre for a period of about two months without any legal help. The applicant says that after he was released from the Canning Vale Remand Centre he was put in solitary confinement for a period of time. Later he tried to contact “the Legal Aid”. The applicant further says that he was unable to obtain legal aid to help him appeal to this Court and did not know that he could come to this Court without a legal representative. He was “just awaiting for deportation back to China” until he learned that two other deportees had lodged applications to this Court themselves, without lawyers and were given a chance to appear in Court. He concludes the submission as follows:
“So I hurried up to make my application and had it lodged. That is why it was so late!”
In an ordinary matter, by which I mean a matter in which there is no express statutory provision to the contrary, the Court would weigh up all of the above factors when deciding whether or not to extend time. But this is no ordinary matter because s 478(1) of the Act provides:
“(1) An application under section 476 or 477 must:
(a)be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified 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 outside the period specified in paragraph (1) (b).”
The effect of this section was considered by the Full Court of this Court in Pathmanathan v Minister for Immigration & Multicultural Affairs (unreported, 14 May 1998). In that decision Beaumont J (with whom Branson and Emmett JJ agreed) stated (at 2) that:
“The terms of s 478(1)(b) of the Act are specific. They provide that an application of the present kind must be lodged within 28 days of the applicant being notified of the decision. Moreover, s 478(2) of the Act provides in terms that the Court must not make an order extending time. There is now a considerable line of authority in this Court which establishes that the Court has no jurisdiction to extend time irrespective of the merits of an application for extension.”
I have found that the applicant received notice of the Tribunal’s decision no later than 14 July 1998. Therefore the application filed on 20 November 1998 is out of time by some three months. The Court has no power to extend the time for applying to this Court for a review of the Tribunal’s decision.
On 26 February 1999 the applicant faxed to the Court a document headed “Notice of a Motion”. He passed up the original of that document at the hearing on 10 March 1999. The respondent acceded to my suggestion that I should treat that document as a composite one. First, I have treated it as a notice of motion, filed in Court, whereby the applicant seeks summary judgment in respect of his application for an order of review. Secondly I have treated it, insofar as it refers to factual matters, as an affidavit. Thirdly I have treated the balance of the document as containing submissions, some of which I have already referred to.
During the time when the motion should adjourned part heard, the applicant faxed to the Court some further submissions in reply to submissions filed by the respondent. In those submissions the applicant raised various matters, including the degree to which modifications to the law were well publicised, whether his application for a Class 434 temporary entry permit had been finally determined and various other matters. I think it is quite clear that the applicant is not entitled to summary judgment on his application. The evidence to date puts his claim in sufficient doubt to make that conclusion obvious. Both motions should be dismissed. I propose to reserve the question of the costs of the motions.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. Associate:
Dated: 1 April 1999
Mr Xie Wei Ming appeared for himself Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10, 26 March 1999 Date of Judgment: 1 April 1999
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