FEDERAL COURT OF AUSTRALIA

Ghomrawi v Minister for Immigration & Multicultural Affairs [2000] FCA 724

MIGRATION – immigration detention – appeal – whether error of law in finding that detention not unlawful – whether error in finding no application made – whether error in finding no valid application - whether error in discretionary interpretation of power to grant bridging visa

ADMINISTRATIVE LAW – whether error in finding conditions of transfer and monthly review did not render lawful detention unlawful.

Migration Act 1958 (Cth), s 73

Abalos v Australian Postal Commission (1990) 171 CLR 167, cited

Devries v Australian National Railways Commission (1993) 177 CLR 472, cited

Ex parte Ghomrawi, Re Ruddock & Anor unreported, High Court of Australia, McHugh J, 21 December 1999, referred to

Hong v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468, cited

Kundu v Minister for Immigration & Multicultural Affairs [2000] FCA 560, cited

Li Wen Han v Minister for Imigration & Multicultural Affairs [2000] FCA 421, cited

Lim v Minister for Immigration and Multicultural Affairs (1992) 176 CLR 1, cited

Minister for Imigration & Multicultural Affairs v Sharma (1999) 90 FCR 513, referred to

Nicolas v The Queen (1998) 193 CLR 173, cited

Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489, cited

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, referred to

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, cited

HASSAN GHOMRAWI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1233 of 1999

R D NICHOLSON, HELY & GYLES JJ

2 JUNE 2000

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

R D NICHOLSON & HELY JJ:

1                     This is an appeal from a judgment of Emmett J in which he dismissed the appellant’s application as amended.  That application was directed in various ways to the proposition that the appellant was (and is) in unlawful detention.  He claimed he was unlawfully detained on 9 July 1998 or if lawfully detained, his detention had ceased to be lawful.  He contended that the circumstances of his transfer from his initial place of detention, the Villawood Detention Centre (“Villawood”), on 8 September 1998 to the Metropolitan Remand and Reception Centre at Silverwater (“Silverwater”) and successive decisions not to re-transfer him, rendered his detention unlawful.

2                     The respondent detained the appellant pursuant to the provisions of Div 7, Part 2 of the Migration Act 1958 (Cth) (“the Act”) on the basis that he was an “unlawful non-citizen”.  By s 14(1) of the Act that description applies to a non-citizen in the migration zone (for present purposes, Australia) who is not a lawful non-citizen.  This latter description applies to a non-citizen in the migration zone who holds a visa that is in effect:  s 13(1).  A duty to detain unlawful non-citizens is imposed by s 189(1) which requires an officer knowing or reasonably suspecting that a person in the migration zone is an unlawful non-citizen to detain that person.  Section 196 provides an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is

(a)                removed from Australia;

(b)               deported;  or

(c)                granted a visa.

“Immigration detention” includes being held in a detention centre established under the Act, such as Villawood, or being held in a state prison or remand centre, such as Silverwater.

3                     Subject to the contention for the appellant that he should have been deemed by the primary judge to have held a bridging visa on the date of his detention (so that he was not therefore an unlawful non-citizen on that date) it was not in dispute before his Honour that the appellant had not otherwise been granted a visa which was in force at the date of his detention.

4                     The appellant is a citizen of Lebanon.  He arrived in Australia on 31 October 1995 under a visitor visa which expired on 31 January 1996.  Having suffered a motor vehicle accident prior to that date, he applied for a medical treatment visa and on the same day was granted a bridging visa pending the determination of that application.  The appellant was advised on 15 August 1997 that the application was refused.

5                     The Minister may grant a non-citizen permission, to be known as a visa, to remain in Australia (s 29).  A person who wants that permission must apply for it (s 45) by a valid visa application (s 46).  The Minister must consider a valid application for a visa, and is not to consider an application that is not a valid application (s 47).  After considering a valid application for a visa to which subdivision AC applies, the Minister, if satisfied as to the matters referred to in s 65(1)(a) is to grant the visa, or if not so satisfied, is to refuse to grant the visa (s 65).  A visa is to be granted by the Minister causing a record of it to be made (s 67) and the non-citizen is to be given evidence of the grant of a visa (s 69).

6                     There is a class of temporary visas, called bridging visas, to be granted under subdivision AF (s 37).  Section 73 of the Act provides, in relation to bridging visas:

73                The Minister may grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 31(3) a bridging visa permitting the non-citizen to remain it, or to travel to, enter and remain in Australia:

(a)               during a specified period;  or

(b)               until a specified event happens.”

Section 75 provides that in certain circumstances (which do not exist here) a non-citizen will be taken to have been granted a bridging visa notwithstanding the absence of a Ministerial decision on his application.

7                     The appellant’s contention is that on 18 November 1996 he made a valid application for a visa which, if granted, would permit him to remain permanently in Australia.  No attempt was made either at first instance or on this appeal, to show that the s 65 criteria were satisfied such that had the Minister considered the application for permanent residence, it would have been his duty to grant it.  Rather, the case was put on the basis (and it is the fact) that the relevant application form also included an application for a bridging visa.  In the appellant’s contention, upon a valid application being made for a bridging visa, the Minister is obliged to grant that visa.

8                     There is a dispute, to which it will be necessary to return, as to whether the appellant made an application for a visa on 18 November 1986.  As a pure matter of fact, the Minister did not grant a bridging visa, or any other visa to the appellant following the events of 18 November 1986.  The appellant sought to overcome that problem by contending that:

-                     he made a valid application for a bridging visa on 18 November 1996 by handing (inter alia) a Form 887 (which included an application for a bridging visa) to Ms Capra at the Bankstown office of the Department;

-                     Ms Capra wrongfully refused to accept, or declined to process the tendered forms until pending criminal charges against the appellant had been finalised;

-                     s 73 of the Act has the effect that the making of a valid application for a substantive visa results in the automatic and immediate grant of a bridging visa, such that the appellant was not an unlawful non-citizen at the time of his detention.

The position if a valid visa application is assumed

9                     The primary judge did not accept the version of the event of 18 November 1996 for which the appellant contended.  However, even if it is assumed that the appellant had made a valid application for a substantive visa on 18 November 1996, the fact remains that at the time of the appellant’s detention he was a non-citizen in the migration zone who had not been granted a visa.

10                  If he was not the holder of a visa at that time then his detention was not only lawful but obligatory.  The contention that he was then the holder of a visa, if it is to be made out, must depend upon showing that, as a matter of law, the application of the Act to the assumed facts produces that result.

11                  Whilst the appellant did submit that on and from 18 November 1996 the appellant was the holder of a bridging visa, his case did not demonstrate how the making of a valid application for a substantive visa and a bridging visa (even assuming the criteria for the grant of a bridging visa were satisfied) results in the automatic and immediate grant of a bridging visa.

12                  There is no section of the Act, nor is there any regulation which says that a bridging visa is taken to have been granted upon the occurrence of the assumed circumstances.  There is no section applicable in the assumed circumstances equivalent to s 75.  The primary judge held, correctly in our view, that the word “may” in s 73 should not be construed as meaning “must”.  We agree with his Honour’s conclusion in this regard.  The contrast between the language of s 73, on the one hand, and that of ss 65 and 75 on the other, confirms the correctness of that conclusion.

13                  In the appellant’s contention “the logic of the Act as a whole” compels a conclusion that “may” in s 73 means “must”.  Presumably the same logic requires something to be taken to have occurred, when in fact it has not.  The appellant did not explain, and we are unable to see how, a notion as elusive as “the logic of the Act as whole” can produce the results for which the appellant contends.

14                  In this Court, the appellant did not contend that the law of estoppel had any relevant operation.  It was not suggested, nor could it be sensibly suggested, that the Minister was estopped from asserting that the appellant was not the holder of a visa at the time of his original detention.  Reference was made to the absence of a visa as being the result of “mismanagement”, but there was no showing of how it is that the result of “mismanagement” is the deemed grant of a visa.

15                  Accordingly, even if the appellant’s version of the event of 18 November 1996 had been accepted by the primary judge, that would not alter the fact that at the time of his initial detention the appellant was an unlawful non-citizen in the migration zone, and his detention, in those circumstances, was lawful.

The finding that no application was made for a visa

16                  Before his Honour it was argued for the appellant that on 18 November 1996 he, his wife (“Mrs Ghomrawi”) and a Ms Jaber went to the Bankstown office of the Department.  It was said they had taken with them various Forms under the Act including Form 887 – “Application to Remain Permanently in Australia”.  It was contended Mrs Ghomrawi had asked for a Ms Capra, a counter supervisor at Bankstown, whom she knew to be the appellant’s compliance officer.  Upon Ms Capra coming to the counter it was said the application had been handed to her.  However, Ms Capra said she would not accept the application until “after his court case”.  There was a reference to charges of kidnapping and aggravated sexual assault laid against the appellant on 21 January 1996, which were dismissed in November 1997.

17                  His Honour’s findings were:

“I accept that Mr Ghomrawi, his wife and Ms Jaber went to the Bankstown office of the Department, probably on 18 November 1996, and that some discussion then occurred.  It may be that the discussion was with Ms Capra.  However, I consider that it is unlikely that Mrs Ghomrawi asked for Ms Capra when they arrived at the office.  I do not accept that Mrs Ghomrawi would have known of the name of Ms Capra in November 1996.  While she may have had a discussion of some sort with Ms Capra in November 1996, I do not accept that she asked to speak to Ms Capra as Mr Ghomrawi’s compliance officer.

It is clear that Mr Ghomrawi was intending to apply for permanent residence in consequence of his marriage to Mrs Ghomrawi.  For some reason, that application was not prosecuted.  It is unlikely that the communications recorded in Mrs Capra’s 1997 file notes would have occurred in that form if, in November of the previous year, there had been a refusal to accept an application which Mrs Ghomrawi regarded as ‘unfair’.  I reject the contention that the reason for non-prosecution of the application for a  Residence Visa was that Ms Capra to accept an application on 18 November 1996.”

Emmett J continued:

“It is likely that some advice was given to Mr Ghomrawi and Mrs Ghomrawi on 18 November 1996 that indicated to them that any application for a  permanent Residence Visa should be deferred.  However, whether the advice was to wait until the disposition of the medical treatment visa or until the disposition of the criminal charges is not clear.  In the light of Ms Capra’s file notes, I consider it more likely that reference was made to the disposition of the medical treatment visa.”

This finding is not challenged on behalf of the appellant.

18                  Ms Capra did not agree with the appellant’s contention that on 26 November 1998 she refused to accept an application by the appellant for a residence visa.  Of her evidence, Emmett J said:

“Ms Capra was, in some senses, an unsatisfactory witness.  She acknowledged that her affidavit contained language that was not entirely her own.  Her oral evidence tended to be a little disjointed and confused.  However, I formed the opinion that she was endeavouring to give honest answers when in the witness box.  She probably felt defensive in that the allegations that have been made concerning her involve impropriety, as she understood it.  I consider that it is more likely than not that, if Ms Capra had engaged in the exchange deposed to by Mrs Ghomrawi, she would have remembered it.  Her evidence that she has no recollection of such an exchange amounts, in effect, to a denial of the exchange alleged by Mrs Ghomrawi.  I accept that denial.”

(Emphasis added)

19                  The appellant contends that in accepting Ms Capra’s “denial” of the alleged exchange at the counter, his Honour impermissibly transmuted a mere lack of recollection as to the occurrence of an event into a denial that it occurred.

20                  There is no substance in this contention.  In her cross-examination Ms Capra testified that the conversation at the counter alleged to have taken place between Mrs Ghomrawi did not occur.  Her affidavit evidence said that it was not true.  She admitted in cross-examination that she had no recollection of 18 November 1996, “of that particular day” and said of the appellant’s version of the conversation at the counter:  “It’s not true because I don’t recall that at all”.

21                  No error is shown in the primary judge’s characterisation of the effect of Ms Capra’s evidence in the passage in bold type quoted in par 18 above.

22                  The appellant also contends that his Honour, in accepting and relying on the evidence of Ms Capra on the issue of tender of the application, had acted on evidence inconsistent with facts incontrovertibly established by the evidence:  Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.  Specifically it was argued that the evidence of Ms Capra, considered in the context of the documentary evidence and other oral evidence, did not provide a proper foundation for his Honour’s findings on the critical issue of presentation of the application:  State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588.  See also Abalos v Australian Postal Commission (1990) 171 CLR 167.

23                  We agree with submissions for the respondent that no cogent case has been made by the appellant to support this contention.  In this case the primary judge was confronted with a clear conflict in the oral evidence as to whether an exchange of the type for which the appellant contends occurred at the counter on 18 November 1996.  The documentary evidence was capable of confirming the appellant intended to apply for permanent residence, and (perhaps) of providing some corroboration for the appellant’s claim that he visited the Bankstown office on or after 18 November 1996.  But the primary judge accepted these matters.  Neither the fact of the forms nor the manner of their completion suggests that the primary judge’s finding on the credibility issue is against the probabilities, let alone “glaringly improbable”.

24                  His Honour’s acceptance of Ms Capra’s evidence was open to him even though in Forms 26 and 160, two of the forms said to have been presented to Ms Capra, there were references to the application having been lodged at Bankstown.  This is not a case where the documentary evidence can only be explained by taking a different view of Ms Capra’s credibility on the point than that taken by the trial judge.

25                  In the end, the trial judge accepted the evidence of denial of Ms Capra.  In our opinion no error of law has been demonstrated within the principles delineated in the above authorities on which the appellant’s case relies.

A valid application?

26                  The forms which the appellant claims to have presented to Ms Capra on 18 November 1996 have been completed in varying degrees.  No application fee was paid.  Assuming the forms were taken to the Bankstown office on 18 November 1998, it is clear that they were taken away by Mr and Mrs Ghomrawi.  The primary judge rejected the appellant’s case that the forms were handed to Ms Capra.  His Honour does not find that they were handed to anybody else.  It would not be appropriate for us to draw an inference to that effect if only because to do so would be inconsistent with the appellant’s case.

27                  Accordingly, it is not necessary for us to consider whether, if an application had been made, it would have been a valid application, because there is no finding that an application was ever made.  The primary judge rejected the only evidence adduced by the appellant as to the way in which it was said that an application had been made.

28                  We prefer not to embark upon a consideration of this issue unless necessary, as there is at least some doubt (AB 698/59) as to the extent of the submissions put to his Honour on this issue, and a transcript of the argument is not available to us.  However, were we to reach a conclusion on the issue of validity on the material before us, we would be bound to find that there was no basis for error in his Honour’s finding on the issue.  This follows from the finding that the documents had been removed from the Department, that some of them were incomplete and the fee had not been paid.

Transfer to Silverwater

29                  It was contended for the appellant that his transfer had not taken place in compliance with the requirements of “MSI 157 of July 1997 – Transfers of Detainees to State Prisons” and that the procedures there laid down were mandatory.  The instrument itself was not in evidence.  There was no evidence as to the status of the instrument, who issued it or as to whether as a matter of practice it was normally complied with.  The only evidence which the primary judge had was reference to the instrument in a minute referring to parts of it.  On the evidence before him, his Honour was unable to conclude the instrument was mandatory.  He found there was no unreasonableness in the administrative acts involved in leading up to the transfer, no failure to have regard to the appellant’s medical and psychiatric condition and no exercise of the relevant power for an improper purpose.

30                  On this appeal it was again asserted the procedures were mandatory in the sense referred to in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 or, alternatively, within the traditional meaning of mandatory requirements.  There is no basis demonstrated for finding error in the conclusion of the primary judge that on the evidence before him he could not conclude the procedures were mandatory.

31                  It is also contended that the appellant had a legitimate expectation that the procedures would be followed by the Department.  This contention does not appear to have been made to Emmett J.  There was, in any event, an entire absence of evidentiary foundation upon which it could be maintained.

32                  Even if the appellant’s detention at Silverwater was unlawful because of non-compliance with the transfer procedures, it is not shown in the appellant’s case why that would have entitled him to release from detention rather than re-transfer to Villawood.

Monthly reviews

33                  In relation to the monthly reviews of the appellant to determine whether he was eligible for the transfer to Villawood, his Honour found no inference could be drawn the decision-makers did not turn an independent mind to the question on each occasion.  No basis has been shown in the appellant’s case to find error in this finding, beyond the re-assertion of the contentions which failed before his Honour.

General

34                  It was submitted for the appellant that the Court has jurisdiction and power to release the appellant from detention either as a superior court – Lim v Minister for Immigration & Multicultural Affairs (1992) 176 CLR 1 and Nicolas v The Queen (1998) 193 CLR 173 or pursuant to s 71 of the Constitution.  This, it is submitted, is the case notwithstanding             s 196(3) of the Act, which provides that s 196(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.

35                  As we have not found any error in the findings and conclusions of Emmett J it is unnecessary for these latter submissions to be considered.  We note, however, that an application on behalf of the appellant to the High Court for a writ of habeas corpus failed:  Ex parte Ghomrawi, re Ruddock & Anor unreported, High Court of Australia, McHugh J, 21 December 1999.

36                  For these reasons, the appeal should be dismissed with costs.

Leave to appeal against refusal of amendment of pleadings

37                  The appellant seeks leave to amend the grounds of appeal to appeal out of time against the decision of the Emmett J to refuse an amendment to the pleadings to include a claim for damages.  His Honour refused an amendment to include a claim for damages because it had been only foreshadowed after the evidence had closed and in the course of address.  He added that the applicant “may have cause of action against the Commonwealth.  However, I express no view whosoever on that question since it is not before me.”  If that were the case, the judgment of Emmett J may estop the cause if the cause is formulated in a manner which attracts that effect.

38                  In our view the application for leave should be refused.  No formulated amendment has been provided to the Court.  No support is given to a broad submission for the applicant that the amendment would be in the interests of justice.  There may be an issue on whether any cause of action for damages is subject to any limitation.  Without any formulated cause, it is not open to the Court to find merit in the proposed amendment.

39                  Furthermore, the application to his Honour was at a very late stage and clearly rightly refused by him.

40                  We refuse the application for such leave.

Associate:

Dated:              2 June 2000

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

GYLES J:

41                  I have had the advantage of reading the judgment of RD Nicholson and Hely JJ in draft.  This relieves me of the necessity of setting out the facts and the issues for determination.  I agree that the appeal must be dismissed with costs, and I generally agree with their Honours on all issues upon which they express a conclusion, save for  the issue concerning what took place at the Bankstown office of the Department on 18 November 1996.  I can see substance in the appellant’s argument on this point, and prefer to rely upon other grounds.  I briefly explain why I take this view.

42                  The trial judge accepted that the appellant attended the office on that day with an application for a visa at least substantially completed, but received advice from an unidentified Departmental officer to defer the application.  On this basis, there is merit in the submission that it is difficult to think of a reason why it should not be concluded that he attended the office intending to make the application and, in fact, presented the forms he had brought with him for that very purpose to the officer, so sparking the advice which was received.

43                  It is of significance that Ms Jaber, whilst a friend of the appellant’s wife, corroborated the appellant’s version and was not cross-examined to suggest that she had not told the truth.  Furthermore, I cannot agree that Ms Capra actually denied what occurred.  It is quite clear that she had no recall of the day or of the incident.  That, of course, leaves it open to find that the incident did not take place, but does not, with respect to those who take a different view, amount to a denial.

44                  The case for the appellant was that the application was presented to Ms Capra and rejected as it could not be dealt with prior to the disposition of the criminal proceedings.  The judge found that  the appellant attended the office with the application but was deterred from presenting it by advice, from somebody other than Ms Capra, that the application should be deferred until either the disposition of the criminal charges or the disposition of the application for a medical treatment visa.  The line is exceedingly fine.  As I agree that the appeal does not succeed even if the appellant’s version of what took place is accepted, it is unnecessary for me to decide whether the appellant’s argument is sufficient to overcome the reticence with which an appeal court should approach overturning findings of fact where the trial judge saw the witnesses.

45                  My doubts as to the factual question are, however, sufficient to cause me to consider the validity of the application if the evidence of the appellant were accepted, as invalidity would be an additional reason for rejecting this appeal.  I am prepared to assume, for the purposes of argument, that an application may be made although a counter clerk does not physically accept, or accepts and then returns, the form tendered (Hong Ye v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468).  However, the trial judge held that the application as it stood was incomplete, and held that the application fee had not been tendered.  Indeed, he went further and held that the appellant was not in a position to tender it.  I will consider the position without the latter finding.  As RD Nicholson and Hely JJ point out, this issue may not have been the subject of full argument below.  However, there can be no doubt that the fee was not tendered.  The appellant does not suggest it was.  There is a significant line of authority recently set out by Weinberg J in Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 to the effect that incompleteness of a visa application and failure to pay the fee leads to invalidity.  Whilst there is debate as to the extent (if any) to which such deficiencies might be cured whilst the application is still “live” in the sense of being considered (cf Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 with Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 and Kundu v Minister for Immigration & Multicultural Affairs [2000] FCA 560) it would be stretching the view most favourable to the appellant too far to apply any such principle to the position as it was before the trial judge.  It is one thing to regard an application which has been tendered and not accepted as made, it is another to regard that which is necessary to have been done, but was not done, as done.  The failure to tender the fee meant that the application was invalid, and the invalidity could not be cured at trial and cannot be cured now.

46                  The only qualification to my agreement with RD Nicholson and Hely JJ on the other issues is that I would prefer to leave for another day the question as to whether “may” in s 73 means “must”.  This point is not, in my opinion, vital to the conclusion reached on the issue in question.

Associate:

Dated:              2 June 2000