FEDERAL COURT OF AUSTRALIA

IMMIGRATION - applicants detained under s 192 Migration Act on suspicion visas might be cancelled - visas of applicants cancelled - applicants detained as “unlawful non-citizens” under s 189 - applicants applied for bridging visas - visas refused - review of decision to refuse bridging visas sought before Immigration Review Tribunal - Tribunal upheld Minister’s decision - Court asked to determine legality of original detention and of Tribunal’s decision re bridging visas - futility of final relief claimed as to review of Tribunal’s decision and of interim relief as to allegedly unlawful initial detention - no real issue to be tried as to legality of detention

ADMINISTRATIVE LAW - assuming error of law, Court unable to determine matter finally where personal satisfaction of primary decision-maker is required:  Court must remit the matter for further consideration by Tribunal

Migration Act 1958 (Cth), s189, s192

Minister for Immigration & Multicultural Affairs v Guo Wei Rong (High Court of Australia, unreported, 13 June 1997), applied

JEAN HEE WON AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 218 of 1998

MADGWICK J

SYDNEY

24 MARCH 1998

THE COURT ORDERS THAT:

1.         This application is dismissed. 

2.         The applicants are to pay the respondent's costs of the application.

EX-TEMPORE REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:   These proceedings have been before the Court since last Thursday, 19 March, when they were adjourned until today in order that they might be better constituted and that the bases upon which the applicants seek relief and interim relief might be properly formulated. 

The applicants are female Korean nationals.  Each had a visa.  Most of them were in Australia only for a very short period until 6 March.  They were then detained by officers of the Department of Immigration and Multicultural Affairs on suspicion that each was breaching the conditions of her visa.

It is common ground that initially they were purportedly detained under section 192 of the Migration Act 1958 (Cth).  That section empowers officers to detain a non-citizen who holds a visa if an officer knows or reasonably suspects that the visa might be cancelled pursuant to the provisions of the Act.  There are strict limits on this power.  The officer must also reasonably suspect that if a non-citizen is not detained, the non-citizen will attempt to evade immigration officers or otherwise be unco-operative with them in their inquiries about the visa and matters relating thereto.  In particular, a non-citizen detained under s 192 must, pursuant to subs (5), be released from detention within four hours after being detained.

The scheme is plainly to place stringent limits on the opportunity for arbitrary detention and to require urgent action if a non-citizen's visa is to be cancelled, with the inevitable consequences that the non-citizen will become "an unlawful non-citizen" within "the migration zone".  That latter status renders a non-citizen subject to s 189(1) of the Act, which provides that:

“If an officer knows or reasonably suspects that a person in a migration zone is an unlawful non-citizen, the officer must detain the person.”

It was accepted sensibly and properly by counsel for the applicants that it is very likely that the visas of each of the applicants were cancelled during the short period contemplated by s 192 and that s 189 very probably governs their present detention. 

Their visas having been thus cancelled, the applicants then sought to obtain bridging visas.  These applications were refused and an application for review of the refusal decision was in each case brought before the Immigration Review Tribunal, constituted by Dr Glass.  The Tribunal formed the view that there was no basis for it to do anything other than confirm the decision made by the Minister's delegate.

The applicants’ first claim for principal relief is that this Court should review the decision of the Immigration Review Tribunal for error of law.  The solicitor for the Minister, Mr Markus, points out that, if the Court found that there were errors of law, because personal satisfaction of the decision-maker as to relevant matters is required, the Court could do nothing other than remit the matter for further consideration by the Tribunal:  see Minister for Immigration & Multicultural Affairs v Guo Wei Rong (High Court of Australia, unreported, 13 June 1997).  That course would be futile because the applicants, as is their right, have made further applications for bridging visas (presumably felt to be better supported than their original applications) which are again before the Immigration Review Tribunal, where a complete re-hearing de novo on the merits is available.  Mr Harvey, counsel for the applicants, concedes that this is the case.  In that sense, then, there is no real issue to be tried as to the principal relief sought in respect of the decision of the Immigration Review Tribunal which these proceedings seek to impugn. 

The second kind of principal relief now sought is to have reviewed and declared unlawful the initial detention of the applicants in purported pursuance of s 192.  The substance of the Minister's claims about the applicants is that they were working as “hostesses” in an establishment known as The Joy Club in Kings Cross.  The claim of the applicants, through witnesses including the proprietor of that business, is that it is simply an institution designed to provide comfort, respectable recreation and legitimate hospitality to people of Korean background and others who may wish to repair there; among other things it is said that people sing into karaoke machines. 

The argument for the applicants is that there was no reasonable suspicion that any of the applicants was working.  On the applicants’ own story, other inferences might possibly arise but, as a factual matter, it could not be said that there is not a real question to be tried.  The difficulty about their contentions is that, in truth and substance, what the applicants urgently desire is that they be released from detention.  Even if it is assumed that their original detention was unlawful, it is conceded that the decision of the Minister to cancel their visas is not reviewable in this Court.  If that is so, then the logical consequence is that, upon such cancellation, the applicants became unlawful non-citizens, and on the face of it, immigration officers must keep them detained pursuant to s 189.

Thus, while the applicants may or may not be entitled to damages for false imprisonment before the Minister cancelled their visas, any initially unlawful detention does not have the result that their present detention is necessarily tainted with illegality.  There is no proceeding before me which enables an attack to be mounted upon the legality of their present detention.  It seems to me that, in the circumstances, there is no real question to be tried of a kind that could affect that issue, that interim relief is not called for in relation to the purported s 192 detention, and that the application for interim relief must fail.

This application is dismissed.  The applicants are to pay the respondent's costs of the application.

Associate:

Dated:              24 March 1998