Cabal v Minister for Immigration and Multicultural Afairs

[1999] FCA 14

RULING

1                     The two applicants in V 3 and 4 of 1999 bring these applications seeking interlocutory and final relief which would have the effect of releasing them from immigration detention.  Much of the factual background is dealt with in an earlier decision of Merkel J on 23 December 1998 in VG 672 and 673 of 1998, and I incorporate, by reference, what was said in that decision. 

2                     The present applications are based on s 75(1)(b) of the Migration Act 1958 (Cth).  In essence the two applicants claim that the Minister did not make a decision within the “prescribed period” and that therefore by operation of law they are entitled to bridging visas.  The “prescribed period” is, by virtue of reg 2.24(2)(a), two “working days”. 

3                     The application for interlocutory relief was served at 4.45 pm yesterday and thus was short served.  Mr Gunst QC for the Minister submits that he would wish to contest a number of factual issues, and in particular whether the applicants’ applications were served at the time their solicitor asserts.  There are also questions of waiver by an alleged agreement with their solicitor.  Obviously these matters could not be dealt with today in light of the short service.  However, Mr Gunst says there is a fundamental objection, namely, that, contrary to the applicants’ contention, Tuesday  29 December 1998 was a Commonwealth Public Service holiday and thus was not a “working day”.  If Mr Gunst’s assertion is correct, as a matter of law it would be fatal to both applications.

4                     It seems to me desirable that this issue be determined as a separate question pursuant to O 29 r 2(a) of the Federal Court Rules.  Mr Bell QC for the applicants supports that course; Mr Gunst does not.  He does not seek, however, to call any evidence on the issue, and although, no doubt like most questions of law, it could be the subject of profitable research and contemplation, Mr Gunst did not suggest that he would not be able to advance legal argument on the point.

5                     In all the circumstances, and particularly because the applicants are in custody, it is desirable that what seems to me a short and potentially decisive point should be determined today.  I will therefore make an order under O 29 r 2(a) that the following question be decided separately from any other question, namely:

“Whether Tuesday, 29 December 1998 was a ‘working day’ within the meaning of reg 2.24(2)(a) of the Migration Regulations for the purposes of s 75(1)(b) of the Migration Act 1958 (Cth).”

Associate:

Dated:              5 January 1999