FEDERAL COURT OF AUSTRALIA

Potier v Minister for Immigration & Multicultural Affairs [2000] FCA 252

MIGRATION – protection visa – application – compliance with directions on prescribed form – bridging visa – application – request to put “on hold” – whether application withdrawn – deemed grant of bridging visa under Migration Act 1958 (Cth) s 75 – duration of visa – whether holder showed departure ticket to officer

WORDS & PHRASES – “shows”

Migration Act 1958 (Cth) ss 75, 109

Migration Regulations 1994 Sch 2 cl 050.516

MALCOLM HUNTLEY POTIER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and PETER SMITS (in his capacity as an officer under the Migration Act 1958 (Cth))

V 85 of 2000

JUDGE:          FINKELSTEIN J

DATE:            3 MARCH 2000

PLACE:          MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         Each party to bear their own costs of the application.

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

REASONS FOR JUDGMENT

1                     Mr Potier has been in immigration detention since 17 February 2000, the day on which his Electronic Travel Authority (Class UD) Visitor (Subclass 976) Visa was cancelled under section 109 of the Migration Act 1958 (Cth).  That section permits the Minister to cancel a visa if the holder has given an incorrect answer in his or her application form for a visa (s 101), or has given an incorrect answer in his or her passenger card (s 102) or has produced a bogus document to an officer of the Department of Immigration and Ethnic Affairs (s 103).  Mr Potier used a false name to obtain his tourist visa and he produced a passport in the name of another person, Alexander Mills, when he passed through immigration control. 

2                     Mr Potier seeks an order that he be released from immigration detention.  He says that he holds a Bridging E (Class WE) General (Subclass 050) Visa (the bridging visa) which is valid until 7 March 2000.  Accordingly, he says that he is being unlawfully detained. 

3                     The originating application asks for a declaration that Mr Potier holds a valid bridging visa and an order, in the nature of a mandatory injunction, for his release.  The application was filed and served yesterday and I began the hearing early yesterday afternoon.  Mr Potier contends that his application is urgent, which if he is being illegally detained it undoubtedly is, and that I should finally resolve his claim.  In the alternative Mr Potier indicated that he would move for an interlocutory order, the effect of which would be to secure his release from detention until 7 March 2000.

4                     When the hearing commenced Mr R Tracey QC appeared for the respondents, the Minister for Immigration and Multicultural Affairs and Peter Smits.  Mr Smits is the officer in charge of the centre where Mr Potier is being held in detention.  Mr Tracey had been retained shortly before the hearing began.  He accepted that I should deal with the interlocutory application, but said that it would be unfair to the respondents if I were to proceed to a final hearing.  The basis of this submission was that some of the facts upon which Mr Potier was relying to found his relief were disputed and the respondents were not in a position to contest those facts.

5                     As events turned out, the hearing could not be completed yesterday and it resumed this morning.  This delay provided the respondents with additional time to consider their position and it also enabled them to obtain and tender evidence in support of their case.  In those circumstances the respondents indicated that they were content for the trial to proceed as a final hearing.

6                     The circumstances in which Mr Potier claims to hold the bridging visa are as follows.  On 17 February 2000 Mr Potier lodged an application for a Protection (Class AZ) Visa (a protection visa).  It is first necessary to consider whether that was a valid application.  The question of validity arises because Mr Potier completed and lodged a one page application for a protection visa which he asserts, but the respondents deny, is the only document that was required to be lodged by a person in detention.  The one page application came from Part A of what is described as an Application Pack for a Protection Visa (the application pack) supplied by the Minister’s department.  The application pack was given to Mr Potier while he was in detention.  Mr Potier did not complete Part B of the application pack which, if completed, would provide many of his personal details.  Nor did he complete Part C of the application pack which, if completed, would explain the circumstances giving rise to his claim for a protection visa.  If Mr Potier was required to complete and submit those parts, in addition to the one page application, there is no doubt that he did not make a valid application for a protection visa.  The reasons for this conclusion are to be found in the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Applicant “A” [1999] FCA 1679. 

7                     Whether Mr Potier was required to do more than complete and lodge the one page application will depend upon the meaning that is given to the instructions forming part of the application pack.  The first page of the application pack contains a list of its contents.  It describes Part A in the following terms:  “Part A - Explanatory notes on how to apply for a protection visa, and one page application for persons in detention”.  This suggests that a person seeking a protection visa who is in detention need do no more than complete the one page application. 

8                     The first substantive document in the application pack contains the explanatory notes.  Those explanatory notes are headed:  “How to apply for a protection visa (866)”.  The notes provide information on how to make an application for a protection visa, including what documents must be completed and what information is to be provided. 

9                     One instruction given in the explanatory notes is directed to persons who are in immigration detention, or any other sort of custody.  The instruction reads:

“If you are in immigration detention or any other sort of custody and wish to apply for a protection visa (866), you must complete the one page application form which you will find at the last page of this Part of application form 866.  Once you have completed this one page application form, you should lodge it immediately with an officer authorised to receive it, e.g. an officer of the Department, a member of the Australian Federal Police or of the police force.  You should retain a copy of this application for future reference.”

This instruction also suggests that a person who is in custody and wishes to apply for a protection visa need only complete the one page application.

10                 On the last page of the explanatory notes there is to be found what is described as an “Application checklist”.  The checklist advises:

“To be a valid application, your application must include:

-           If you are a single applicant:

            -           Part B which includes all your personal details

            -           Part C which includes your claims to be a refugee

            -           Documents

            -           Application Fee (except for those in immigration detention

                        and not immigration cleared)”

11                  Elsewhere in the checklist there are a number of questions for an applicant to consider, including:

“Have you answered all questions in Part B?

Has each person making their own claims to be a refugee completed a Part

C …?

Have you completed a Part D …?”

Another question that is raised is:

“If you are in immigration detention or any other form of custody, have you completed and lodged your one page application form which was at the last page of Part A?”

12                  On one view, this information directs a prospective applicant who is in custody to complete and submit Part B and Part C of the application pack as part of the application for a protection visa.  I note that Part B is headed “Application for Protection Visa (866)”.  Part C is likewise headed “Application for Protection Visa (866)”.  There is also sense in  requiring an applicant for a protection visa to complete and submit Parts B and C of the application pack, as unless the information sought by those parts is provided to the Minister, the application cannot be processed. 

13                  On the other hand, there are two factors that lead me to the conclusion that lodging a duly completed one page application from Part A of the application pack is sufficient to constitute a valid application for a protection visa. First, on a fair reading of the instructions that are given to a prospective protection visa applicant in the explanatory notes, the applicant is told that he or she need only lodge a one page application if the applicant is in immigration detention or some other form of custody.  I note in this connection that reg 2.07(3) of the Migration Regulations provides that:  “An applicant must complete an approved form in accordance with any directions on it.”  The reference to an “approved form” is to the form of application required for a particular class of visa.  The application pack constitutes the approved form for a protection visa. 

14                  The second factor, upon which I place some reliance, is that the department has arrived at the same view as I on the proper meaning of the explanatory notes.  This is evidenced by the practice of persons in charge of immigration detention centres to instruct applicants that they need only lodge the one page application.  Indeed, there have been occasions when a person in detention wishing to make an application for a protection visa has only been given Part A of the application pack.

15                  When a non-citizen applies for a protection visa, the application also serves as an application for a bridging visa.  There are various forms of bridging visa.  The one that is relevant for present purposes is Bridging E (Class WE):  see Migrations Regulations Sch 1, item 1305.  There are two subclasses for that type of visa.  One is subclass 050 Bridging (General), and the other is subclass 051 Bridging (Protection Visa Applicant):  see Migration Regulations Sch 2, cl 050 and 051.  It is the first subclass that is relevant in this case. 

16                  Mr Potier said that on the same day that he lodged his application for a protection visa he also lodged a separate application for the bridging visa.  This is disputed by the respondents.  Mr Potier said that the lodging of the separate application occurred in the following circumstances.  During the morning of 17 February 2000 Mr Potier was given two original application forms for a Bridging E (Class WE) General (Subclass 050) Visa:  the prescribed form is Form 1008.  Mr Potier completed each form and handed one to Mr Smits at the same time as he gave Mr Smits his application for a protection visa.  The second application form was retained by Mr Potier.  It will be convenient if I refer to that form as the retained copy.

17                  Later on 17 February 2000, Mr Potier instructed solicitors, Messrs Erskine Rodan & Associates, to assist him in his endeavours to remain in Australia and be released from detention.  Mr Potier sent a copy of the retained copy of the application to his solicitors and asked them to complete and lodge the application with the department. 

18                  I have compared the retained copy with a photocopy of the application that ultimately was lodged by Erskine Rodan & Associates.  It is clear, and this is not a matter in dispute, that the document lodged was the application which the solicitors had received from Mr Potier, though with some additional information that was included by the solicitors. 

19                  Mr Clothier is a solicitor with Erskine Rodan & Associates.  He filed an affidavit in this proceeding.  There is one paragraph in the affidavit to which I should refer in connection with the question whether Mr Potier lodged a separate application for a bridging visa.  Mr Clothier said:

“On 17 February 2000 this firm was instructed to act for the applicant.  However, before my firm was instructed to act on behalf of Mr Potier, but on 17 February 2000, he made a protection visa application which he gave to Peter Smits, an officer of the Department of Immigration whom I believe to be the Immigration Manager of the Immigration Detention Centre at Maribyrnong.  I believe the protection visa application was on Part A of Form 866.”

20                  It is clear, and again this is not a matter that is seriously in dispute, that Mr Potier had not instructed his solicitors that he had made a separate application for a bridging visa.  Mr Clothier said that the first occasion upon which he became aware that his client alleged having made a separate application for a bridging visa was yesterday afternoon when Mr Potier gave evidence to that effect. 

21                  I am satisfied that on 17 February 2000 Mr Potier did not hand to Mr Smits a separate application for a bridging visa.  First, if such a document had been given to Mr Smits, it is likely that Mr Potier would have brought that fact to the attention of his solicitors.  Second, Mr Potier said that he gave both the application for the protection visa and the application for the bridging visa to Mr Smits at the one time.  However, I have the notes of Mr Smits which describe what occurred on that occasion.  As regards the receipt of applications the note reads:  “(5) BVE – coming”, “PV – made”.  I understand “BVE” to be a reference to a Bridging E (Class WE) Visa, and “PV” to be a reference to a protection visa.  The note records that Mr Smits did receive a protection visa application from Mr Potier, and expected to receive a bridging visa application some time in the future.  I accept Mr Smits’ evidence that he was never given such a document.

22                  It is clear that Mr Potier intended to make an application for a bridging visa, in addition to the application associated with the application for a protection visa.  It seems that Mr Potier was minded to make that application, because of advice received from the officers who interviewed him earlier on 17 February 2000.  However, I am firmly of the opinion that when he sent the completed application form by facsimile transmission to his solicitors with instructions that they lodge the application with the department, Mr Potier had not lodged his own application.  If he had lodged an application before sending the document to his solicitors, there would be no point in instructing them to make a further application. 

23                 Returning then to the protection visa application handed to Mr Smits on 17 February 2000, another issue arises.  Did handing the application to Mr Smits amount to making an application for a protection visa?  Mr Potier asserts that it did.  The respondents say that the application was not made until 22 February 2000.  This issue arises in the following way.  A short time after Mr Potier handed the protection visa application to Mr Smits, he spoke with his solicitors.  They advised him to put the application “on hold”.  Immediately thereafter Mr Potier spoke to Mr Smits and relayed the advice that he had received from his solicitors.  Mr Smits’ handwritten note of the conversation reads: “Don’t lodge P/V”.  Whatever were the precise words that passed between Mr Potier and Mr Smits, the parties agree that in substance Mr Potier told Mr Smits that he did not wish to proceed with his application for the time being.  This is confirmed by a letter dated 22 February 2000 from Erskine Rodan & Associates to Mr Smits, the first paragraph of which reads:

“Mr Potier advises me that he gave you $30.00 cash and a completed Part A of a protection visa application on 17 February 2000 and on advice from his solicitors he later asked you to put that application on hold.”

24                  The issue that I must determine is what is the effect of the instruction given to Mr Smits to put the protection visa application “on hold”. 

25                  Logically, the first matter to be determined is whether handing the application form to Mr Smits amounted to the making of an application for a protection visa.  Regulation 2.10 of the Migration Regulations provides that an application for a visa made in Australia must be made “at any office of Immigration in Australia”:  see reg 2.10(1)(b)(iv).  Regulation 2.10 (4) provides that for the purposes of subreg (1), “an office occupied by an officer of Immigration at an airport or a detention centre is an office of Immigration”.  The evidence shows that Mr Smits’ office is designated and treated as an office of Immigration.  Ms Whitmore, a senior officer who is employed at the detention centre, described Mr Smits’ office as an office of DIMA.  When I inquired as to what she meant by “DIMA”, Ms Whitmore told me that this is the acronym for the Department of Immigration and Multicultural Affairs. 

26                  It follows that a valid application for a protection visa was made when Mr Potier handed the application form to Mr Smits and paid the prescribed fee of $30.  What of the instruction given to Mr Smits that the application be put “on hold”?  Notwithstanding Mr Smits’ file note, I do not conclude that this request amounted to a withdrawal of the application.  Nor do I think that it was so treated by Mr Smits.  He retained both the application and the prescribed fee and, in my opinion, would not have done so had he been asked to treat the application as withdrawn.  The application, not having been withdrawn, was required to be dealt with in the manner provided by the legislation.  I will return in a moment to deal with the effect of the legislation.

27                  I mentioned earlier that Mr Potier's solicitors had been instructed to lodge an application for a bridging visa.  In accordance with those instructions the application was lodged on 17 February 2000.  It appears to have been sent by facsimile transmission to the department’s office in Melbourne. 

28                  The following day, 18 February 2000, the application was refused.  Notice of that refusal was given to Mr Potier and to his solicitors. 

29                 I refer again to the letter dated 22 February 2000 sent by Erskine Rodan & Associates to Mr Smits.  I have quoted the first paragraph of that letter.  It is now necessary to refer to the second paragraph.  It reads:

“Would you please confirm that you still hold a completed Part A and the sum of $30.00 in your office drawer.  This information is needed in relation to [Mr Potier’s] application to the Migration Review Tribunal.”

30                  On the same day that this letter was dispatched, Mr Potier informed Mr Smits that he wished to proceed with his application for a protection visa.  As a result, Mr Smits sent the protection visa application and certain accompanying documents to the Melbourne office of the department.  The evidence shows that those documents were delivered by hand late on 22 February 2000. 

31                  Two days later, namely on 24 February 2000, a decision was made that the bridging visa application which was ancillary to the protection visa application should be refused.  Notice of that decision was given to Mr Potier and to his solicitors.  However, for reasons that I will now explain, the decision to refuse to grant the bridging visa was of no effect.

32                  Section 75 of the Migration Act provides:

“(1)     If:

(a)       an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and

(b)       the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa ;

the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.

(2)       The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.”

33                  For the purposes of s 75, the bridging visa that may be granted to a non-citizen in immigration detention is a Bridging E (Class WE) Visa:  see Migration Regulations 1994 reg 2.24(1).  Further, for the purposes of s 75(1)(b) the period within which the Minister must grant or refuse to grant a bridging visa is two working days: see reg 2.24(2)(a).  Accordingly, by operation of s 75 of the Migration Act, Mr Potier was deemed to have been granted a Bridging E (Class WE) Visa on 22 February 2000.  Thereafter, by virtue of s 75, the Minister no longer had power to refuse to grant the visa.

34                  I mentioned earlier that there are two subclasses of Bridging E (Class WE) Visa, namely Bridging (General) (subclass 050) and Bridging (Protection Visa Applicant) (subclass 051).  Of these subclasses, only the first was available to Mr Potier as he did not satisfy the requirements for the grant of the second.  I need not explain why this is so as it was common ground.  The nature of a Bridging E (Class WE) (General) (subclass 050) Visa is dealt with by Sch 2 cl 050.  In particular, cl 050.5 sets out the period such a visa remains in effect.  Relevantly, cl 050.516 provides:

“In the case of a visa that is taken to have been granted by operation of section 75 of the Act (which deals with applications for bridging visas which the Minister does not decide within a short period) – visa coming into effect on grant permitting the applicant to remain in Australia for:

(a)       5 working days from date of grant; or

(b)       if within 5 working days of grant the holder shows an officer a ticket for departure from Australia – 14 days from date of grant.”

35                  If the bridging visa granted to Mr Potier by operation of s 75 was valid for only five days, that visa lapsed on 29 February 2000.  So much is common ground.  However, Mr Potier argues that he holds an airline ticket for departure from Australia and says that he has shown that ticket to an officer as contemplated by cl 050.516(b).  Accordingly, he says that the bridging visa, which he accepts can only remain in force for 14 days, has not yet expired and will not expire until next Tuesday, 7 March 2000.  I have now arrived at the main point of this application.  Mr Potier says that he is entitled to his freedom for three days.  The order that he seeks will give him his freedom for that period.  Is Mr Potier entitled to the relief sought? 

36                  I accept that Mr Potier has a ticket for departure from Australia.  In his original application for a bridging visa, that is the application lodged by his solicitors on 17 February 2000, one question asked was:  “Do you have a valid ticket to depart Australia?”  Mr Potier ticked the space designated for “yes” and described the ticket as an “open” ticket.  On 17 February 2000, officers of the Australian Federal Police executed a search warrant under s 3E of the Crimes Act 1914 (Cth) at premises where Mr Potier was residing until he was taken into immigration detention.  There the officers seized “2 Cathay Pacific Travel Wallets containing travel documents in the name of Mr A Mills and Miss A E Mills”.  I take the reference to “travel documents” to mean airline tickets, one of which is in the name of A Mills, the false name used by Mr Potier to enter this country. 

37                  What is at issue is whether Mr Potier has shown that ticket to an officer within the meaning of cl 050.516(b).  He says that he has for the following reasons.  First, he points to the definition of “officer” in s 5 of the Migration Act, a definition that controls the meaning of the word “officer” in the regulations.  This definition states that an officer includes a member of the Australian Federal Police.  Mr Potier says that the ticket was shown to an “officer” during a conversation about the ticket with a member of the Australian Federal Police on 24 February 2000.  That day is within five working days of the day on which Mr Potier became the holder of a bridging visa.  The conversation took place shortly after Mr Potier had been dealt with in a local Magistrates’ Court for offences relating to his arrival in Australia on false papers.  Mr Potier was seeking to discover the whereabouts of the property that had been seized and whether it would be returned to him.  Mr Potier gave evidence about this conversation during his cross-examination:

“Q.      But you weren’t given the airline ticket and nor were you given a receipt in relation to the airline ticket, were you?

A.        No, and I specifically asked the Federal Police officer about that and other property which was not being handed over.

Q.        And you were told that was retained in the possession of the Federal Police?

A.        No, I was not.

Q.        I see?

A.        In fact, the Federal Police, when I asked them about this, said, ‘We don’t keep this thing.  It’s an immigration matter now.  We pass these things - or ‘stuff’ was the word he used - ‘over to immigration’.’

Q.        You did not observe any handover of the ticket to immigration?

A.        I did not.

Q.        Nor did you disclose the ticket to an officer of the Immigration Department?

A.        I’m not quite sure of the answer.

Q.        The answer is obvious, isn’t it?  You didn’t have it so you couldn’t disclose it?

A.        I could not see my ticket handed to an immigration officer, no.

Q.        And you didn’t do that yourself, did you?

A.        No, because it wasn’t given to me.

Q.        Exactly.  Whose name appears on that ticket?

A.        Alexander Mills.

Q.        It’s not you, is it?

A.        No, it’s not.”

38                  Read literally, cl 050.516(b) requires the holder of a bridging visa to present the ticket for departure to an officer so that it can be seen by the officer.  Presumably the presentation need not be by the holder, but could be undertaken by someone on behalf of the holder.  On the evidence this did not occur.  However, it is also possible that cl 050.516(b) could be satisfied if the holder makes known or makes it clear to an officer that the holder has a ticket enabling the holder to depart from Australia.  In this regard it would not suffice if the ticket was mentioned in a casual conversation with an officer during the relevant period.  It would be necessary for the holder to make known to the officer that he or she was attempting to “show” the ticket, that is to say, that this was one object of the conversation.  The discussion about the location of Mr Potier’s property, including the whereabouts of the airline ticket is not a conversation of that character.  In my opinion, it does not amount to the showing of a ticket for departure to an officer as is required by cl 050.516(b) in order to have the duration of the bridging visa extended from five working days to fourteen days.

39                  The result is that Mr Potier is not entitled to the orders that he seeks and I will dismiss his application.  However I will not order costs against him.  Mr Potier was kept illegally in detention for some days.  In that circumstance, requiring the respondents to bear their own costs is small recompense.

Associate:

Dated:              3 April 2000