FEDERAL COURT OF AUSTRALIA

Mei Xing Chen v Minister for Immigration & Multicultural Affairs

[2000] FCA 644

MEI XING CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 404 OF 2000

LEHANE J

20 APRIL 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s 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                     The applicant, who is in immigration detention, claims (and the respondent denies) that he has automatically been granted a bridging visa by virtue of the Migration Act 1958 (Cth), and that he is therefore entitled to immediate release from detention.  He seeks declarations and orders accordingly.

2                     The applicant lodged an application for a bridging visa E (Subclass 050) on 12 April 2000 at the detention centre.  The effect of the Migration Act and the Migration Regulations 1994 (Cth), in relation to such a visa, is that an application for it is subject to certain conditions set out in item 1305 of sch 1 of the Regulations.  One of those conditions is set out in par 3(c) of that item:

“If applicant is in immigration detention, an officer appointed under subregulation 4.32(2) as a detention review officer for the State or Territory in which the applicant is detained has been informed of the application.”

3                     In this case, it is common ground that such an officer was informed of the applicant's application on the day after it was lodged, that is on Thursday, 13 April 2000.  No decision was made on the application until the following Monday, 17 April.  The applicant claims that, in those circumstances, he is to be taken to have been granted a bridging visa by virtue of s 75(1) of the Migration Act, on the footing that the Minister did not make a decision on the application within the prescribed period, that period being, it is common ground, two working days.  The applicant accepts that I will apply, in ascertaining the end of the period of two working days, the decision of Lindgren J in Potier v Minister for Immigration and Multicultural Affairs [2000] FCA 503 to the effect that s 36 of the Acts Interpretation Act 1901 (Cth) is to be applied in ascertaining the end of the period: thus the day on which an effective application for a visa was lodged is not to be counted.

4                     The question thus resolves itself to this: was compliance with the condition in par 3(c) of item 1305 of sch 1 to the Regulations essential to the effective or valid lodgment of the visa application, in which case lodgment would be taken to have occurred on Thursday, 13 April?  If so, the decision on the application was made within the prescribed period.  That is the view for which the respondent contends.  Alternatively, was the application to be treated as effectively lodged on 12 April (before the officer was informed of it), so that the prescribed period began at a time during the afternoon of 12 April?  That is the approach which the applicant urges.

5                     In Cabal v Minister for Immigration and Multicultural Affairs [1999] FCA 11, Ryan J held that the former of those two views was correct.  That is, the period of two working days did not commence until a detention review officer had been informed of the application.  Subject to one matter not considered by Ryan J but which the applicant submits is critical, it is, I think, clearly appropriate that I follow that decision also.  Nothing has been said – apart from that submission – which suggests that Cabal is wrong in any sense, let alone plainly wrong.

6                     The applicant contends that, at least in relation to an application for a bridging visa other than one made by an applicant for a protection visa, par 3(c) of item 1305 is ineffective.  That is so, it is submitted, because the paragraph refers to a detention review officer appointed under subreg 4.32(2): but that subregulation does not in terms confer power on the Secretary to appoint detention review officers.  The subregulation merely contemplates that such officers will be appointed by the Secretary.  It provides that a person lodging an application of a particular kind must give notice in writing, in accordance with subreg 4.32(3), to an officer appointed by the Secretary to be a detention review officer in the relevant State or Territory.  There is no doubt that in Cabal Ryan J proceeded on the footing – no doubt the contrary was not argued – that par 3(c) of item 1305 was effective.

7                     In my view, despite the submissions made on behalf of the applicant, that view of the matter is correct.  If the alternatives are, and I think they must be, to treat par 3(c) as, on the one hand, either ineffective or applicable (capriciously) only in relation to applications for a particular kind of bridging visa and, on the other, to treat it as referring (perhaps inartistically) to the provisions of subreg 4.32(2), I think the latter alternative is clearly to be preferred: particularly since that is the view upon which Ryan J, at least implicitly, proceeded in Cabal.  It is not in my view – and contrary to the applicant's submission – to strain or distort the language of par 3(c) to read it, where it refers to an officer appointed under the subregulation, as being intended to describe an officer within the category to which subreg 4.32(2) refers. 

8                     Once that conclusion is reached, and applying Potier and Cabal, it follows that a decision on the applicant's application was made within the prescribed period and accordingly the application must be dismissed. 

9                     The Minister seeks an order for payment of his costs.  The applicant submits that I ought not make an order for costs because the applicant might have taken a different approach had he been aware of Lindgren J's very recent decision in Potier.  The solicitor for the Minister has correctly pointed out, however, that Ryan J had already proceeded on the footing that s 36(1) of the Acts Interpretation Act applies in circumstances similar to the present.  Indeed, his Honour explicitly held, by reference to that section, that the period (on the facts found in Cabal) did not commence to run until the working day following the day on which in that case the detention review officer was informed of the application.

10                  I note also, in passing, that in Potier itself Lindgren J thought it appropriate to order that the applicant pay the respondent's costs.  In these circumstances, I think a similar order must be made.  Accordingly, the court orders that the applicant pay the respondent's costs of the application.

Associate:

Dated:              16 May 2000