FEDERAL COURT OF AUSTRALIA

Andreola v Director of Public Prosecutions (Vic) [2002] FCA 728

MIGRATION - criminal justice visa - criminal justice stay certificate granted by authorised State official – granted on “subsistence undertaking” given on behalf of State prosecuting authority – difference between terms of undertaking and terms of certificate – visa granted on certificate – whether State entitled to refuse to pay expenses of visa holder – whether visa holder obliged to satisfy State authority that he had no means – whether Court has jurisdiction to deal with application

Migration Act 1958 (Cth) ss 147, 148, 150, 155, 157, 158, 160, 161, 474(3)(g), 475, 476

Goldie v Commonwealth of Australia [2002] FCA 261 referred to

DANIEL M ANDREOLA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND DIRECTOR OF PUBLIC PROSECUTION FOR THE STATE OF VICTORIA

V 228 of 2002

GRAY J

29 MAY 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         There be no order as to the costs of the proceeding.

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

REASONS FOR JUDGMENT

Nature and history of the proceeding

1                     By an application filed on 22 April 2002, the applicant claimed against the Minister for Immigration and Multicultural Affairs (“the Minister”) and the Director of Public Prosecutions for the State of Victoria orders in the following terms:

“1.       The Department of Immigration is in breech [sic] of the Commonwealth Migration Act 1958 under Division 4 Part 2.

2.         The Director of Public Prosecution [sic] has breeched [sic] the Commonwealth Migration Act 1958 under Division 4 Part 2, subdivisions B & C of the above mentioned Act.”

2                     The affidavit that accompanied the application indicated that the concern of the applicant was the payment of expenses to him whilst he is in Australia for the purposes of the administration of the criminal justice system.  That concern has been confirmed by the manner in which the proceeding has been argued today.  The matter came on as a matter of urgency before another judge of the Court on 26 April 2002.  On that date, the learned judge made orders in the following terms:

“1.       The application, insofar as it was brought against the first respondent,
            be dismissed.

2.         There be no order as to the costs payable as between the applicant and
            the first respondent.

3.         The further hearing of the application be adjourned to a date to be
fixed by the docket judge, preferably in the week commencing 27 May
2002, or as soon thereafter as may be convenient for the docket judge.

4.         The applicant provide to the second respondent the information set out
in the e.mail of Mr Bruce Gardner of 24 April 2002 by 4.15 pm 10
May 2002.

5.         The second respondent file and serve any motion for summary
            dismissal of the proceeding on or before 4.15 pm 10 May 2002.

6.         The second respondent file and serve any affidavit material in support
            of that motion on or before 4.15 pm 10 May 2002.

7.         The applicant file and serve any affidavit material in reply by 4.15 pm
            24 May 2002.

8.         The hearing of the motion be fixed for a date appointed by the docket
            judge, preferably in the week commencing 27 May 2002, or as soon
            thereafter as may be convenient for the docket judge.

9.         Costs of today reserved as between the applicant and the second
            respondent.

10.       Liberty to apply reserved.”

3                     The proceeding was then allocated to my docket.  In accordance with par 8 of the order made on 26 April 2002, I fixed today, 29 May 2002, as the date for the return of any motion to be filed on behalf of the second respondent.

4                     In the meantime, the applicant filed a notice of motion on 2 May 2002 in which he sought orders in the following terms:

“1.       Interim order of support until claim is Heard. By docket court.

2.         The DPP has Conflict of Interest in this case and a neutral Third Party      Take over the issue.”

I directed that the notice of motion be made returnable on 29 May.  In accordance with pars 5 and 6 of the orders made on 26 April, on 8 May 2002, the second respondent filed a notice of motion and an affidavit in support.  That notice of motion seeks that the application be dismissed and the applicant pay the respondent’s costs.  It, of course, is returnable today.

5                     Subsequently, on 10 May 2002, the applicant filed a further notice of motion, which I also directed to be made returnable today.  That notice of motion seeks orders in the following terms:

“1.       The Minister of Immigration and Multicultural Affairs be reinstated or joined to this action on the same grounds of previous application.

2.         A [sic] extension of time for tendering information to DPP by 10 May at 4.50 pm.

3.         The motion of interim support be brought forward to be heard at this time.

4.         This motion to be heard on or before 13 May 2002.”

6                     I should say that the reason for my decision that the notices of motion filed by the applicant be made returnable today was my doubt as to whether the Court had any jurisdiction to deal with the matter and my desire that that issue be argued today rather than be argued on some motion for an interim order.

The legislation

7                     As is indicated by the application, the relevant provisions of the Migration Act 1958 (Cth) (“the Migration Act”) are found in Div 4 of Pt 2.  That division provides for the entry into Australia and the retention in Australia of persons whose presence in Australia is considered to be necessary for the administration of criminal justice.  Section 145 provides for the Attorney-General to grant a certificate that the presence of a non-citizen in Australia is required for the administration of criminal justice, if the Attorney-General reaches certain conclusions.  A similar function is conferred by s 146 on an authorised official for a State, in respect of the administration of criminal justice by the State.

8                     Sections 147 and 148 contain provisions relating respectively to the Commonwealth and the States, permitting the grant of criminal justice stay certificates.  For the purposes of this case it is necessary to have regard to the terms of s 148:

“If:

(a)       an unlawful non-citizen is to be, or is likely to be, removed or deported; and

(b)       an authorised official for a State considers that the non-citizen should
remain in Australia temporarily for the purposes of the administration
of criminal justice in relation to an offence against a law of the State;
and

(c)        that authorised official considers that satisfactory arrangements have
been made to make sure that the person or organisation who wants the
non-citizen for those purposes or the non-citizen or both will meet
the cost of keeping the non-citizen in Australia;

the official may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice by the State.”

9                     Section 150 provides that:

“If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.”

10                  The next relevant provisions are those in subdivision D of Div 4 of Pt 2 of the Migration Act, relating to criminal justice visas.  By s 155, provision is made for criminal justice entry visas and criminal justice stay visas.  Section 157 provides:

“A criterion for a criminal justice stay visa for a non-citizen is that either:

(a)       a criminal justice stay certificate about the non-citizen is in force; or

(b)       a criminal justice stay warrant about the non-citizen is in force.”

11                  Section 158 provides:

“The criteria for a criminal justice visa for a non-citizen are, and only are:

(a)       the criterion required by section 156 or 157; and

(b)       the criterion that the Minister, having had regard to:

            (i)         the safety of individuals and people generally;

            (ii)        in the case of a criminal justice entry visa, arrangements to ensure that if the non-citizen enters Australia, the non-citizen can be removed; and

            (iii)       any other matters that the Minister considers relevant;

has decided in the Minister’s absolute discretion that it is appropriate for the visa to be granted.”

12                  Section 160 provides that the regulations may provide that criminal justice visas are subject to specified conditions.  In the case of a criminal justice entry visa, it is a condition that the non-citizen must not do any work in Australia, whether for reward or otherwise.

13                  Section 161 provides for the effect of criminal justice visas.  A criminal justice stay visa is permission for a non-citizen to remain in Australia while it is in effect.  It has certain other effects that are not relevant to the present circumstances.

The facts

14                  In December 1999, the applicant, who is apparently a non-citizen, was present in Australia as the holder of a visa.  He was then charged with certain offences pursuant to the law of Victoria.  He was granted bail pending his trial.  Eventually, after his protests that nothing had been done, some action was taken to obtain for him a criminal justice stay visa.  The first step that was taken was that the Acting Solicitor for Public Prosecutions in the Office of Public Prosecutions for Victoria gave a written undertaking, dated 17 April 2000, in the following terms:

“MIGRATION ACT 1958 SECTION 148(c)

UNDERTAKING

I, STEPHEN CARISBROOK, Acting Solicitor for Public Prosecutions for the State of Victoria, DO HEREBY UNDERTAKE that if a Criminal Justice Stay Visa is issued to DANIEL MICHAEL ANDREOLA for the purposes of the administration of criminal justice in relation to an offence against the law of Victoria AND if the said DANIEL MICHAEL ANDREOLA is not detained in custody AND if the said DANIEL MICHAEL ANDREOLA has no independent means of support, the Office of Public Prosecutions for the State of Victoria will provide cash or services to the said DANIEL MICHAEL ANDREOLA sufficient to provide basic needs including food, shelter and transport, until the cancellation of the said Criminal Justice Stay Visa.”

15                  I note that s 148(c) of the Migration Act, which I have quoted above, says nothing about the giving of such an undertaking.  It does appear that a manual, issued by the Attorney-General’s Department of the Commonwealth at or prior to the relevant time, contains material suggesting that something called a “subsistence undertaking” was required pursuant to s 148(c), and that it should set out the following provision of a subsistence level of support if the non-citizen is not kept in detention:

“This means payment of cash or services to the non-citizen of a level sufficient to provide basic needs, including food, shelter and transport, (if required).”

16                  On the same day on which the undertaking was given, the then Director of Public Prosecutions for the State of Victoria granted what was described in its title as a State Criminal Justice Stay Certificate pursuant to s 148 of the Migration Act.  The certificate is in the following terms:

“WHEREAS DANIEL MICHAEL ANDREOLA a citizen of United States of America and Israel, born on 30 December 1945 is an unlawful non-citizen for the purposes of the Migration Act 1958; AND WHEREAS DANIEL MICHAEL ANDREOLA is to be, or is likely to be, removed or deported from Australia; AND WHEREAS I consider that DANIEL MICHAEL ANDREOLA should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of Victoria;

AND WHEREAS I consider that satisfactory arrangements have been made to make sure that the costs of keeping DANIEL MICHAEL ANDREOLA in Australia will be met by the Office of Public Prosecutions for the State of Victoria;

NOW THEREFORE I, GEOFFREY RAYMOND FLATMAN, a person duly appointed by the Commonwealth Attorney-General as an authorised official for Victoria for the purposes of Division 4 of Part 2 of the Migration Act, hereby certify, pursuant to s.148 of that Act, the stay of the removal or deportation of DANIEL MICHAEL ANDREOLA from Australia is required for the administration of criminal justice by Victoria.”

The document is dated 17 April 2000.

17                  The applicant was tried in the County Court on a number of charges of dishonestly obtaining financial advantage, or attempting to do so, and was convicted.  His sentence included a term of imprisonment.  He has apparently served the non-parole period of that sentence and is currently on parole.  He has an appeal pending in the Court of Appeal in Victoria against his conviction.  That appeal is due to be heard next Monday, 3 June 2002. 

18                  The Office of Public Prosecutions has so far failed to make any payment by way of expenses to the applicant.  The applicant wrote a letter to the Office of Public Prosecutions on 15 April 2002, in which he claimed to set out the expenses for which he required reimbursement.  Among his claims was a claim for $175 per day for rent, which he said resulted from a long-term rental agreement into which he had entered.  He also claimed $100 per week for food, and for miscellaneous expenses about $50 per week.  He sought reimbursement of hospital expenses incurred in the year 2000 in the sum of $8,000, and ongoing support to the tune of $6,000 per month.

19                  Mr Bruce Gardner in the Office of Public Prosecutions communicated with the applicant by e-mail and requested from him information.  In that e-mail Mr Gardner said:

“4. … As stated above, the OPP has information that you presently have independent means of support.  Accordingly, you are not eligible at present for any assistance pursuant to the subsistence undertaking.  If and when you cease to have independent means of support and you are in a position to verify that fact, you should prepare a statutory declaration setting out the whole of your financial circumstances, including all assets and income available to you and all financial and other assistance which you are receiving or might receive from any third party.

5.  This Office has a duty to verify all claims made in any such application and accordingly may request the assistance of the police in the verification of any such claims.

6.  In the event of any subsistence payments being provided, such payments would be limited in quantum to the equivalent of the basic social security entitlements to which you would have access if you were a citizen of this country.”

The effect of the undertaking and the certificate

20                  It appears from the material before me as though, in different ways, both sides to this dispute have invested the undertaking of Mr Carisbrook on 17 April 2000 with significance that it does not have.  As I have said, the material apparently circulated by the federal Attorney-General’s Department tends to suggest that such an undertaking is required by s 148(c) of the Migration Act.  Section 148(c) contains no such requirement.  It may be that an authorised official, considering whether to give a certificate under s 148, will rely on an undertaking of the kind given on 17 April 2000 in determining whether that official considers that satisfactory arrangements have been made to meet the cost of keeping a non-citizen in Australia.  Such an undertaking is by no means an exclusive method of achieving the required state of mind on the part of the authorised official.

21                  In the present case, I note that the certificate given by the Director of Public Prosecutions on 17 April 2000 is not expressed in the same terms as the undertaking.  Rather, the certificate is given in terms that the authorised official considers that satisfactory arrangements have been made to make sure that the costs of keeping the applicant in Australia will be met by the Office of Public Prosecutions for the State of Victoria.  So far as the material before me goes, it may be that the Director of Public Prosecutions had regard to material other than the undertaking in reaching that state of mind.  At all events, the state of mind reached on that occasion does seem to make any question of the applicant’s means irrelevant to the question of the payment of the cost of keeping him in Australia.  I am of the view, which I have expressed to counsel for the Director of Public Prosecutions, that because the criminal justice visa has been granted on the basis of a certificate in those terms, I cannot see how the Director of Public Prosecutions can now contend that he is entitled to take into account the means of the applicant in considering whether to make payments of expenses of keeping the applicant in Australia.  I stood the matter down temporarily to allow counsel for the Director of Public Prosecutions to seek instructions on that matter, but counsel for the Director of Public Prosecutions indicated that the present Director takes a different view of the certificate from the one that I take.  In my view, the integrity of the criminal justice system in the State of Victoria might well be damaged by the taking of such a view.

The Court’s jurisdiction

22                  This is not to say, however, that the Court has jurisdiction to deal with the applicant’s application.  The applicant says that he is in this Court because the statute with which he is dealing is a federal statute.  Ordinarily, it may be right for him to say that he is entitled to enforce a federal statute in this Court.  There are difficulties peculiar to the Migration Act in relation to that.

23                  In the first case, consideration must be given to the nature of the provisions relating to criminal justice certificates, and to criminal justice visas.  After reciting and recounting those provisions in Goldie v Commonwealth of Australia[2002] FCA 261 at [36], French J said:

“These provisions are enacted in the public interest in the administration of criminal justice.  They are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen”.

I respectfully agree with that characterisation of the provisions.  The applicant, as I understand his case, sees himself as coming to the Court to enforce the undertaking that was given on 17 April.  Whatever might be the force or effect of such an undertaking, it was plainly not given to the applicant.  Not being the recipient of it, he does not have any right to enforce it.  Nor can it be said that the certificate of the same date was given to the applicant, in the sense that he would have some contractual or similar right to enforce its terms so far as they bear upon him.

24                  The applicant must be thrown back to the jurisdiction of the Court in relation to decisions that are made under the Migration Act.  The first difficulty that the applicant has in that regard is in identifying a decision.  Counsel for the Director of Public Prosecutions contends that no decision has been made not to pay any expenses to the applicant.  The Office of Public Prosecutions is waiting for the provision of information from the applicant before it makes such a decision.  It may be that, in any event, for the purposes of the Migration Act there is considered to be a decision.  I note that s 474(3)(g) includes in the definition of “decision” for the purposes of that section a reference to “doing or refusing to do any other act or thing”.

It is s 474 that makes the applicant’s position extremely difficult, at least insofar as it might depend upon any decision made since 2 October 2001, when the section in its present form came into operation.  That section sets up a notion of a privative clause decision, being a decision of an administrative character made, proposed to be made or required to be made under the Migration Act, other than certain listed decisions in subs (4) or decisions specified by the regulations pursuant to subs (5).  Given the extended meaning of decision, it may be that anything done or not done in relation to the applicant is caught by the definition of privative clause decision.  Section 474(1) provides that such a decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

25                  Subsequent provisions, notably s 475A and s 476 indicate that this Court has some jurisdiction in relation to decisions made by review tribunals under the Migration Act and certain other decisions in which the Court’s jurisdiction is not expressly excluded by s 476.  In most cases, the exclusions relate to primary decisions.  The limits of the Court’s jurisdiction are currently a matter of controversy and a special Full Court has been designated to deal with that issue next Monday.  I am not, therefore, in a position to make any sort of final pronouncement upon the limits of that jurisdiction.  It does seem, however, that whatever decision the applicant might rely upon, he will have difficulty bringing it within any current jurisdiction of the Court under the Migration Act.  So far as the Migration Act prior to 2 October 2001 is concerned, if any application were to be made in respect of any decision at that time, issues of the time for making the application would undoubtedly arise.  So also would issues as to whether the decision concerned came within what were then very restrictive provisions about the jurisdiction of the Court to engage in judicial review.

26                  In my view, the applicant has failed to show that there is any matter before the Court in respect of which the Court has jurisdiction.

The question of discretion

27                  I should say also that counsel for the second respondent sought to invite the exercise of the Court’s discretion to dismiss the application, on the basis that the applicant had failed to comply with par 4 of the order made on 26 April 2002.  This application was made in the context of a notice of motion, in which the applicant sought to enlarge the time fixed by that order.  If there had been an application before the Court within its jurisdiction, I should not have been disposed to dismiss it in the exercise of my discretion for non-compliance with that order.  Non-compliance with an order can be excused and the time laid down in an order can
be extended.  I have not considered whether it would have been appropriate to do those things in the context of the present case.

Conclusion

28                  Since there is no valid application before the Court, all of the applicant’s motions in relation to the proceeding must also be dismissed.  They will of course include the motion to reinstate or join again the Minister who was named as the first respondent in the original application.

Costs

29                  I note that counsel for the second respondent has indicated that the second respondent does not seek costs in the event that the proceeding is dismissed.  Counsel for the Minister has asked for an order for the costs of the notice of motion filed on 10 May, insofar as they affect the Minister.  It appears that that notice of motion was sent to the Minister’s department, by facsimile.  Whether this was sufficient service on the Minister is a matter of some doubt.  In any event I consider that the Minister’s appearance by counsel was a matter of over-abundant caution.  It was unnecessary when the Minister was not a party.  If an order had been made, adding the Minister as a party, then directions as to the service of process on the Minister would have been given and the Minister would have had an opportunity to apply to strike out the proceeding so far as it concerned him.  In the circumstances, I do not consider it to be appropriate to make an order for the Minister’s costs on appearance on the motion.

30                  The order of the Court, then, will be:

1.         The application be dismissed.

2.         There be no order as to the costs of the proceeding.

Associate:

Dated:              7 June 2002