FEDERAL COURT OF AUSTRALIA

Long v Minister for Immigration & Multicultural Affairs [1999] FCA 233

MIGRATION - detention of unlawful non - citizen pending deportation - motion to order stay of visa cancellation pending determination of review against Minister’s decision – whether evidence a stay appropriate to secure effectiveness of hearing.

Migration Act 1958 (Cth) s 196(3), s 482(2), (3)

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, discussed

ANNE LONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 4 OF 1999

THE COURT ORDERS THAT:

1.                  The motion be refused.

2.                  Costs reserved.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant brings a motion seeking to have a decision made by the respondent on 6 January 1999 to cancel the applicant's resident's visa under section 501 of the Migration Act 1958 (Cth) (“the Act”) suspended or stayed.  The motion relies on s 482 of the Act.  The stay or suspension is sought pending the determination of an application for an order for review of that decision or until further order.

2                     The applicant has brought an application for an order of review pursuant to s 476 of the Act in respect of that decision of the respondent.  She sets out various grounds on which she would seek to have the decision reviewed.  In the application she sought interlocutory relief restraining the respondent from causing or permitting her removal from Australia.  It has been unnecessary for that claim to be heard because an undertaking has been given on behalf of the respondent that no such removal will be sought pending the determination of the application and the exercise of any appellate rights by the applicant.

3                     It is also germane to mention that the motion seeks further orders that the applicant be forthwith released from detention and that during the currency of the suspension or stay the applicant reside at a certain named address and report three days a week to a particular police station.

4                     The motion is supported by an affidavit of the applicant which annexes the decisions and reasons of a Deputy President of the Administrative Appeals Tribunal (“ the  Tribunal”) delivered on 5 December 1997.  In that decision the Tribunal set aside a prior decision of the Department of Immigration and Multicultural Affairs and substituted a decision that the applicant not be deported from Australia pursuant to s 200 of the Act.

5                     In her affidavit in support of the motion the applicant states the decision of the respondent of which she seeks review was made approximately 13 months after the decision of the Tribunal to which I have referred.  She confirms that her history as recounted in the reasons of that Tibunal is accurate.  She was released from prison on 5 December 1997, immediately following the decision of the Tribunal.

6                     The applicant refers to the fact that she has had prior criminal convictions which led to her imprisonment.  She states that all these have arisen out of her need to maintain a drug habit.  She also states that the drug habit is in her past and she has conquered her previous drug habit.

7                     In particular she deposes that during the time she was in prison her children found the separation from her difficult to handle.  She continues by stating that since her release in December 1997 her children and she have become particularly close and they have been devastated by her having been again taken into detention on 12 January 1999.  That occurred as a consequence of the decision of the respondent made on 6 January 1999 to cancel her resident's visa.

8                     The statutory setting which has led to the detention of the applicant and upon which her application relies is as follows.

9                     Section 14(1) of the Act provides that a non‑citizen who is not a lawful non‑citizen is an unlawful non‑citizen.  Section 15 provides that if a visa is cancelled, its former holder becomes on cancellation an unlawful non‑citizen unless immediately after the cancellation the former holder holds another visa that is in effect.

10                  By s 189 of the Act it is provided that 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.  It is common ground that it was pursuant to this mandatory power that the applicant was detained following the cancellation of her visa by the decision of the respondent of which review is sought.

11                  Section 196 of the Act provides in subs (1) that an unlawful non‑citizen detained under s 189 must be kept in immigration detention until he or she is removed, deported or granted a visa.  That subsection is to be read in the context of subs 196(3) which reads:

“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 made a valid application for a visa and he or she has been granted a visa.”

12                  The Ministerial decision of which review is sought was made pursuant to s 501 of the Act.  It is accepted that it is a judicially reviewable decision as that term is defined in s 475(1)(c) of the Act.

13                  The application is not directed to the Minister's decision to also declare the applicant an excluded person under s 502 of the Act.  Furthermore, the application does not specifically relate to the decision of the Minister that the applicant is a person not of good character.  However, it has been accepted on behalf of the respondent that the motion can be addressed on the basis that all three issues are raised by the application and that, as counsel for the applicant has foreshadowed, the application would be amended or leave sought to amend it to encompass all those matters.

14                 Section 482 reads :-

“(1)     Subject to this section, the making of an application under section 476 to the Federal Court in relation to a judicially - reviewable decision does not:

(a)       affect the operation of the decision; or

(b)               prevent the taking of action to implement the decision; or

(c)               prevent the taking of action in reliance on the making of the decision.

(2)               If an application is made to the Federal Court under section 476 or 477 in relation to a judicially - reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal

(3)               The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially – reviewable decision, or part of that decision.

(4)               The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).

(5)               An order in force under subsection (2) :

(a)               is subject to such conditions as are specified in the order; and

(b)               has effect until:

(i)                 if a period for the operation of the order is specified in the order- the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

(ii)               if no period is so specified- the giving of a decision on the appeal.”

15                  The power of the Court to make orders of the sort now the subject of the motion has been discussed in the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169.  However, that decision being given on 13 February 1992, addressed the matters in the context of what was then s 93 of the Act.  That section provided that there was a discretion in the officer as to whether to exercise the power of detention.  Furthermore, the application before the Court in that decision was one brought pursuant to s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The power provided in s 93 was also one of arrest rather than detention.  There was in s 93 a discretion to order release.  That contrasts with the present provisions of s 196.  It was there the fact that there was no inconsistency between s 93 of the Act and s 23 of the Federal Court of Australia Act (1976) (Cth).  Here, however, s 196 changes the statutory context.

16                  There are, however, general principles in Msilanga's case which are relevant to mention here.  The first is that the Court there had regard to the policy of the Act.  The policy of the Act today is to be gleaned from its statutory provisions.  Secondly, the Court there accepted by reference to prior decisions and in the course of the reasoning in Msilanga's case itself that an application for the release of the type sought in that case was very different from a normal bail case because a “prohibited non‑citizen”, the relevant statutory term then, is unlike a person charged with a criminal offence is not the subject of any presumption of innocence until proved guilty at a trial.  Thirdly, it was held that in determining whether or not to grant interlocutory relief a judge should apply the serious question to be tried and balance of convenience tests.

17                  Doubtless that decision has influenced the casting of the application brought in this motion and the supporting affidavit as supported by the outline of submissions.  That outline sets out the matters which in the applicant's submission are serious questions to be tried in the application.  These are disputed by the respondent.  In respect of the balance of convenience the applicant contends that there are a number of matters to weigh in her favour.  They are firstly, that if the decision of the respondent is found to be unlawful, then the respondent will be liable to her in damages.  Secondly, it is said that she and her children would have been subject to very considerable and unnecessary hardship.  Thirdly, it is said the continued detention of the applicant involves a cost of $139 per day and thus potentially a substantial cost to the Australian community.  Fourthly, it is said the applicant's primary concern is to be with her children and there is therefore no incentive and effectively no risk that she will abscond.

18                  The application, brought as it is in reliance on s 482, must be decided in the context of the present statutory regime.  It has been recognised that the enactment of s 196 in particular has the potential to change the statutory regime.  See, for example, Wasfi v Commonwealth  ( unreported, High Court of Australia, 10 February 1998 per Hayne J ) and Ho Song Lu v Minister for Immigration and Multicultural Affairs [1998] 172 3 FCA (23 December 1998) per Dowsett J.  In the latter decision Dowsett J raised without deciding the possibility that s 196 created a fairly strong presumption in favour of detaining an applicant in custody where the applicant was an unlawful non‑citizen.

19                  There is the possibility that it could be argued s 482 is to be construed in the context of section 196 and in particular section 196 subs (3).  The argument could run that if an order for a stay was made under subs 482(3), it could not be made in circumstances where it would have the effect prohibited by subs 196(3).  That issue has not been argued before me and I express no opinion on it.  Nor do I consider it necessary in this matter to have in mind any possible presumption such as that raised by Dowsett J in any construction of s 482 to which I must go in resolving this motion.

20                  Turning to s 482, it is apparent from subs (2) that the orders which can be made pursuant to subs (3) for stay are such as the court "considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal".

21                  For the applicant it is submitted that the evidence which goes to that end is that paragraph of her affidavit in which she states that her children have been devastated by her having been taken into detention on 12 January 1999.  Reliance on that evidence is set in a wider context of submission to this effect, namely, that the effectiveness of the hearing and determination of the appeal requires the maintenance of the subject matter and that if the applicant is not possessed of her liberty, that liberty will be whittled away in small doses during the period of her detention.  It is submitted that if she succeeds in her application, she will have unnecessarily lost that liberty and suffered irreparable damage which could not be remedied by the court.  I note that from the grounds of the balance of convenience which I have referred to, the possibility of damages being claimed has been raised and there is certainly a question whether any wrongful detention in the event of the applicant's ultimate success, if such detention is found wrongful legally, could not be adequately remedied in damages.

22                  That point aside, however, the thrust of the submissions for the applicant is that the status quo should be preserved and that the hearing would be made more effective by this Court proceeding now on the basis of no presupposition that the Minister's decision is correct.

23                  In my view the words enacted by Parliament in subs 482(2) where they require the Court to consider what is appropriate for the purpose of “securing the effectiveness of the hearing and determination of the appeal” are quite clear.  I do not consider they extend to the matters raised on behalf of the applicant.  They extend to matters which will make the hearing effective and the determination of the appeal effective.  Thus, for instance, if the applicant were about to be deported, I would have no doubt that the words would extend to the possibility of making a stay order to enable her to come to the hearing and state her case or to contribute to instructing her solicitor to do so on her behalf.

24                  However, as has been seen, the matters on which the applicant and applicant's counsel rely are matters going to the family circumstances of the applicant.  They are poignant and meaningful and I do not minimise them to any degree, but I am of the view they do not fall within the statutory language used by Parliament.  Parliament has limited the court's power in subs 482(2) and in my view the evidence and submissions for the applicant do not raise a case which falls within those words.  There is therefore no evidentiary foundation on which I consider the Court could make an order for stay pursuant to subs 482(3) or any other order pursuant to that subsection in terms of the present application.

25                  I add that had it been the case that the court was required to consider the balance of convenience, the family circumstances would clearly have been relevant to that balance of convenience.  However, for the reasons I have given, I do not consider that within the section on which the motion relies and on the evidence brought in support of the motion that issue now arises.

26                  For those reasons I consider that the motion of 10 February 1999 should be refused.

Associate:

Dated:              15 March 1999