FEDERAL COURT OF AUSTRALIA

Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 774

MIGRATION – cancellation of BF transitional (permanent) visa – power to stay – administrative decision – whether power can be exercised in relation to a decision which has taken effect – whether power can be exercised in respect of continuing effects of decision

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 15(1)

Conciliation and Arbitration Act 1904 (Cth) s 142A

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) s 78B

Migration Act 1958 (Cth) s 189(1), 196, 196(3), 482, 482(2), 501

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 3

Federal Court Rules O 20 r 5, O 37 r 6 and r 10

Re Patterson; Ex parte Taylor (2001) 182 ALR 657 referred to

The Marconi’s Wireless Telegraph Company Limited v The Commonwealth (No 3) (1913) 16 CLR 384 referred to

McBride v Sandland (No 2)(1918) 25 CLR 369 referred to

Re Marks and Federated Iron Workers’ Association; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208 discussed

Jennings Construction Limited v Burgundy Royale Investments Proprietary Ltd [No 1] (1986) 161 CLR 681 distinguished

Long v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 366 referred to

Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1 discussed

Minister for Immigration, Local Government & Ethnic Affairs v Msilanga (1992) 34 FCR 169 referred to

Chin Lye Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514 referred to

Repatriation Commission v Delkou (1985) 8 ALD 454 discussed

Webber v Secretary, Department of Social Security (1989) 18 ALD 422 distinguished

Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 discussed

Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297 referred to

Challoner v Minister for Immigration & Multicultural Affairs (No 1) [2000] FCA 1600 discussed

Challoner v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 1601 considered

Guss v Johnstone  [2000] FCA 1593 considered

Re Wardle; Ex parte Widin v Australia & New Zealand Banking Group Limited (1987) 70 ALR 633 referred to

BRIAN LONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W61 of 2002

RD NICHOLSON J

19 JUNE 2002

PERTH

THE COURT ORDERS THAT:

1.             The applicant’s notice of motion dated 2 April 2002 as amended be refused.

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                     On 24 January 2002 the respondent cancelled the applicant’s BF transitional (permanent) visa.  The cancellation was made in reliance on the provisions of s 501 of the Migration Act 1958 (Cth) (“the Act”).  The effect of the decision was to remove the applicant’s right to remain a permanent resident of Australia. 

2                     On 22 February 2002 the applicant lodged an application for an order of review of the decision.  By further substituted application the applicant seeks a writ of prohibition and a writ of certiorari to respectively prohibit the respondent from further proceeding to act on the decision and directing its removal to the Court for the purpose of being quashed.  Additionally, relief is sought by way of an order restraining the respondent from removing the applicant from Australia and from detaining him for that purpose.  The substituted application also sought relief pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) but it is accepted that such claim is not tenable and no reliance is placed on that portion of the substituted application. 

3                     By notice of motion filed on 2 April 2002 the applicant moved the Court for interlocutory orders restraining the respondent from removing him from Australia and from detaining him.  Additionally, an order was sought that until further order the decision made by the respondent to cancel the applicant’s residence visa be stayed.  It is this latter aspect to which these reasons principally relate.

4                     Also on 2 April 2002 the applicant gave notice of a constitutional matter in accordance with the requirements of s 78B of the Judiciary Act 1903 (Cth).  In that notice the applicant contends that it is beyond the power of the Commonwealth Parliament to legislate to cancel the applicant’s residence visa and/or to remove him against his will from Australia or to take him into detention for the purposes of removal.  The circumstances upon which that contention is based is that the applicant is a British citizen, having been born in Great Britain on 11 October 1963 with British parents and having first entered Australia as a migrant on 24 March 1975.  He claims to have become a permanent resident of Australia on or shortly after 24 March 1981 and to have resided in Australia since 10 February 1987 so that he has become absorbed into the Australian community.  He therefore contends, in the notice, that he is no longer an immigrant and that at no relevant time has he been an alien.  In subsequent submissions it was indicated that this line of contention would be supported by reference to Re Patterson; Ex parte Taylor (2001) 182 ALR 657.  No response to the notice was received and, in any event, the issue does not arise on the determination of the motion for stay of the cancellation of the visa.

5                     On the hearing of the motion two concessions were made on behalf of the respondent.  The first is that it is not in contest on the application for stay of the decision that the seriousness of the issue and balance of convenience favour the applicant, so that if there is power to stay the Minister’s decision to cancel the visa, the orders sought in that respect on behalf of the applicant should be made.  Additionally, the respondent gave an undertaking not to remove the applicant from Australia prior to the hearing and final determination of the substituted application.  On behalf of the applicant it was conceded there is no power for the Court to order the release of the applicant from detention while he remains an “unlawful non-citizen”:  s 196 of the Act.

Evidence

6                     The evidence before the Court in relation to the motion appears in an affidavit of the applicant and an affidavit filed on behalf of the respondent. 

7                     The applicant’s personal circumstances as they appear from that evidence are as follows.  He is a citizen of the United Kingdom, born there on 11 October 1963.  Three sisters, also born in England, are all married with children and live permanently in Western Australia.  The applicant first arrived in Australia on 24 March 1975 together with his parental family.  That family returned to England in December 1975 for about fifteen months.  They then arrived again in Australia on 21 March 1977 when he was aged thirteen.  Just over two years later the family again returned to England.  The applicant arrived back in Australia on 24 March 1981 aged seventeen.  Six months later his parents returned to live in Western Australia.  On 1 May 1982 the applicant married.  He and his wife have four children, three of whom are under the age of eighteen years.  The applicant visited the United Kingdom for a short period from 9 December 1986 to 10 February 1987 and has not since then been outside Australia.

8                     Following that return the applicant was sentenced to a number of terms of imprisonment.  On 5 November 1987 he was sentenced by the District Court of Western Australia in respect of one charge of heroin possession with intent to sell/supply to imprisonment for two years and a further such charge leading to imprisonment for twelve months.  On 22 October 1992 he was sentenced by the Supreme Court of Western Australia for six charges of breach of probation for heroin manufacture leading to imprisonment for twelve months on each charge concurrently.  On 28 March 1994 the applicant was sentenced by the District Court of Western Australia to seven years imprisonment in respect of one charge of robbery whilst armed in company.  On 7 July 2000 he was sentenced by the same court to imprisonment for two years in respect of two charges of stealing a motor vehicle; imprisonment for twelve months cumulative in respect of one charge of stealing; imprisonment for a further two years cumulative in respect of one charge of stealing; and imprisonment for two years concurrently in respect of three charges of stealing.  In his affidavit the applicant states that his offences have been directly or indirectly related to his addiction to heroin and his need at the time to maintain that habit.  However, since obtaining a naltraxone implant he maintains he now has no desire to take heroin or substitute drugs. 

Contentions of parties

9                     The essential point taken on behalf of the respondent is that where a visa has been cancelled there is nothing in relation to which a stay order can operate.  An order staying the decision to cancel the applicant’s visa, it is submitted, made after the decision has been implemented and the visa cancelled would be meaningless.  Furthermore, it is said that it could not have the effect of requiring the applicant to be released from immigration custody because, upon the cancellation of the visa, the applicant became an unlawful non-citizen and therefore was required to be detained pursuant to the provisions of ss 189(1) and 196 of the Act.  This is opposed on behalf of the applicant who relies upon various analogies and authority to support the contention that a stay order should be made.  The particularity of the submissions will be further explored in the following reasoning.

Reasoning

10                  It is not in dispute that the source of the Court’s power to make an interlocutory stay order lies in s 23 of the Federal Court of Australia Act 1976 (Cth).

11                  The Federal Court Rules (“FCR”) draw a distinction between a stay of proceedings and a stay of execution:  FCR O 20 r 5 and O 37 r 6 and r 10.  The latter two rules refer to the stay of a judgment or order.  Both these categories of rules refer to matters within the Court; that is the proceeding or the judgment or order. 

12                  Here, the stay application invites the Court to stay an administrative decision made outside the curial process.  The respondent does not dispute the powers of the Court to make an order staying an administrative decision which is under challenge and which the Court may ultimately quash or hold to be void subject, however, to that decision having some continuing operation or aspect of implementation upon which the court’s order may operate.  What is disputed and put in issue here is that the Court cannot make a stay order in respect of an administrative decision which is fully implemented and has no continuing operation. 

Power of court to preserve subject matter of litigation

13                  The submissions for the applicant rely firstly upon a number of High Court authorities recognising that the High Court has an inherent jurisdiction to stay an order of another court even prior to a special leave application having been made.  The basis of its intervention is whether a refusal of stay will render the proposed appeal nugatory, although it will only do so where there are “special circumstances” or “very strong and special grounds as shown”:  The Marconi’s Wireless Telegraph Company Limited v The Commonwealth (No 3) (1913) 16 CLR 384 at 386; McBride v Sandland (No 2) (1918) 25 CLR 369, particularly at 374 – 375; Re Marks and Federated Iron Workers’ Association; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208 at 211 where Mason J said that the stay of an order of the kind there in question pending an application for prohibition was at best “an exceptional undertaking”.  The order there in question was made under s 142A of the Conciliation and Arbitration Act 1904 (Cth) giving a particular union the exclusive right to represent certain employees.  Both Marconi and Marks were applied by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Proprietary Ltd [No 1] (1986) 161 CLR 681.  Brennan J said that the jurisdiction to grant a stay depended on whether it was necessary “to preserve the subject-matter of the litigation”:  at 683.  He emphasised that it was an extraordinary jurisdiction and “exceptional circumstances” must be shown before its exercise is warranted:  at 684.  Brennan J ordered that so much of the orders of Kearney J in the proceedings in the Supreme Court of the Northern Territory as ordered the cancellation of the applicant’s liens were to be stayed until the hearing and determination of the applicant’s applications for special leave to appeal were heard and determined. 

14                  However, the order made in Jennings Construction in relation to the orders of Kearney J cannot assist the present applicant.  That is because at first instance Kearney J had ordered that liens registered over a crown lease be cancelled but, by consent, had ordered that the judgments and orders be stayed until the hearing of appeals to the Court of Appeal.  The Court of Appeal of the Northern Territory subsequently dismissed appeals from his Honour’s judgments and ordered that “the operation of his Honour’s order cancelling the registration of the liens be stayed to allow the High Court an opportunity to consider whether a stay should be granted pending the determination of the applicant’s applications for special leave to appeal”:  Jennings Construction at 682 – 683.  The result was that the orders of Kearney J had not been implemented so that they were capable of being stayed firstly, by the order of the Court of Appeal and secondly by the order of the High Court made by Brennan J.

15                  The other High Court authorities referred to for the applicant either relate to an instance of an order with a continuing operation (Marks) or involved the stay of proceedings in the action (McBride). 

Analogy to orders for release

16                  The submissions for the applicant then turn to contending there is no difference in principle between the Court staying a decision and the Court implying a power to release an applicant subject to a deportation order:  Long v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 366; Halmi v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 1.  In the latter decision Hill J determined that the release of the applicant would assist in securing the effectiveness of the hearing and that s 196 of the Act did not prevent the use of s 482 as it then stood to stay a decision to cancel a visa, although on the merits no stay was ordered.  Section 482(2) then provided an authority for the Court to make orders staying or otherwise effecting the operation or implementation of a judicially-reviewable decision or part of that decision “for the purpose of securing the effectiveness of the hearing and determination of the appeal”.  The case for the applicant accepts that there was a different legislative scheme then applicable under the Act.  That applies also to the decision of Minister for Immigration, Local Government & Ethnic Affairs v Msilanga (1992) 34 FCR 169, a decision of the Full Court discussed in both Long and Halmi.  Hill J also decided that in the legislative context before him s 196 of the Act and, in particular, s 196(3) did not preclude the making of an order for stay if it was otherwise supportable.  The reasoning of Hill J was accepted by Madgwick J in Chin Lye Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514.

17                  For the applicant it is submitted that even though the decisions in Msilanga, Long and Halmi were made in a different legislative context, the principles which are derivative from them show that once the cancellation of a visa is suspended, the applicant is no longer unlawful and hence cannot be detained pursuant to s 196(3) of the Act.  That is not, however, the principal issue here.  The question here is whether the Court has any jurisdiction to stay (“suspend”) the cancellation when there is no statutory equivalent of s 482(2).  The foundation of the reasoning of Hill J in Halmi was the clear legislative intent of Parliament that the Court had jurisdiction to stay the cancellation of a visa in the circumstances provided for in the former s 482(2):  see Halmi at 9, par [34].  That is no longer the case, the provision having been repealed with effect from 2 October 2001:  Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 3.

Analogy to cancellation of pension

18                  Next the submissions for the applicant rely on the analogy said to exist between the cancellation of a permanent visa and the cancellation of a pension.  It is said that both affect rights.  It is submitted that once a pension is cancelled, there are no further steps to be taken of an administrative nature:  payments simply cease.  Nevertheless, if the cancellation is stayed or suspended by order of a court or tribunal, the applicant in that situation is entitled to enjoy the right to receive the pension until the matter is determined.  Reliance is placed on the decision in Repatriation Commission v Delkou (1985) 8 ALD 454 where it was held, in reliance on McBride, that the whole purpose of an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) was to suspend, or otherwise affect, the legal consequences flowing from a decision of Veterans’ Review Board.  That subsection provided that the tribunal may make stay orders in relation to a decision “for the purpose of securing the effectiveness of the hearing and determination of the application for review”.  The Board decision ordered that the veteran receive a disability pension at a special rate.  The decision had been implemented to the extent that a lump sum payment of accumulated arrears had been paid.  Stay was sought in respect of both the lump sum arrears and the continuing entitlement.  Deputy President Hall at 458, par (12) stated that the making of an order under s 41(2) “is predicated upon the premise the decision, or the aspect of the decision, sought to be stayed has not been implemented”.  He said that in relation to the arrears, the decision of the Board had been given full effect and on that ground alone it would be inappropriate for the tribunal to make any order purporting to stay or otherwise affect that aspect of the decision under review because “there was nothing left to stay”.  The position was otherwise in Webber v Secretary, Department of Social Security (1989) 18 ALD 422 where there was a case of continuing payments at a reduced rate so that the question of the rate of pay required consideration on each pay day with the result that there was something left to stay.  Accordingly, I do not consider that the analogy with pensions assists the applicant’s contentions. 

Further authorities

19                  There are other decisions which I consider support the respondent’s contentions.  The first is Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342.  There, Carr J held that while there is a power in an appropriate case to stay proceedings which might be taken consequent upon the making of a declaratory order, there is no power to stay a declaratory order because once a declaration has been made the legal rights or obligations of the parties the subject of the declaration are settled.  After reviewing a number of the authorities previously referred to in these reasons and finding them of no assistance to him on the same point which arises here, Carr J drew attention to a distinction he had recently drawn between staying the operation of a sequestration order pending an appeal against that order and staying certain administrative proceedings designed to give effect to the statutory consequences of such an order:  Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297 at 301.  He concluded the power to stay the declaration did not exist. 

20                  For the applicant it is contended the case of a declaration is special because it does not change the status quo but rather declares the existing state of lawful rights.  In contrast, it is said the decision of the respondent to cancel the applicant’s visa did change the existing state of affairs.  In my view the making of a declaration, while declaratory of the existing state of lawful rights, may well have the consequence of declaring rights contrary to prior understandings of them and so involve the requirement of adjustment to a change of status.  It would be artificial or too narrow to say that the declaration, while not itself effecting change, could not give rise to changed understandings in relation to which an aggrieved party may seek a stay to contest the making of the declaration.  On the authority of Coleman, such stay would be available.

21                  There are other decisions of single judges in this Court which point in the same direction and provide further support.  In Challoner v Minister for Immigration & Multicultural Affairs (No 1) [2000] FCA 1600, Drummond J made an order restraining the respondent, his servants and agents from giving effect to the cancellation of the applicant’s electronic travel authority (“ETA”) until further order.  That authority was obtained while the applicant in that case was overseas and it entitled him to return to Australia on a multiple entry basis subject to him not being permitted to do work while in Australia which could be done by an Australian.  That applicant was informed by the Department of Immigration & Multicultural Affairs that his ETA had been cancelled for breach of the work condition.  Drummond J made an order restraining the Minister, his servants and agents from giving effect to the cancellation until further order.  However, shortly thereafter in Challoner v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 1601 the parties agreed on a consent variation to the order so that it operated as a restraint upon giving effect to the cancellation decision only to the extent that the cancellation decision would have permitted the Minister to remove the applicant from Australia.  Subsequently, Drummond J made an order by consent that the Minister, by his officers, servants and agents, be restrained until the final hearing of the application or earlier order from giving effect to the decision cancelling the ETA visa “to the extent that the decision would otherwise have permitted the Minister to remove the applicant from Australia and to the extent that the decision would have required the applicant to be held in detention”.  It appears to me that the reformulation of the orders by Drummond J with the consent of the parties was intended to ensure the orders were directed to the effect and operation of the orders rather than to the decision effecting the cancellation. 

22                  In Guss v Johnstone [2000] FCA 1593, Sackville J pointed out an application to stay proceedings under a sequestration order had been regarded as different from the suspension of the operation of a sequestration order, citing Re Wardle; Ex parte Widin v Australia & New Zealand Banking Group Limited (1987) 70 ALR 633 at 635; Coleman.  Subsequently, Sackville J said:

“The appellant’s submissions appeared to assume that the stay orders made by the Full Court on 20 May 1999 and subsequently extended by me have prevented his status changing to that of a bankrupt and have also prevented his property vesting in his trustee by virtue of s 58(1) of the Bankruptcy Act.  This assumption appears not to be correct.  It has been suggested that a stay of proceedings under a sequestration order (as distinct from a suspension of the sequestration order) does not prevent the change of status and the vesting of property which takes effect  by statute on the making of a sequestration order: Re Wardle, at 635, per Neaves J; see also Allanson v Midland Credit Ltd (1977) 30 FLR 108, at 112-113.  However, a stay in these terms prevents the taking of various administrative steps that are normally taken under the Bankruptcy Act once a sequestration order is made: Coleman v Lazy Days, at 301.”

23                  Having considered these authorities I am of the view that the respondent’s principal submission is correct.  That is, I accept that, absent statutory authority of the type which appeared in the former s 482 of the Act, the Court has no power to stay an administrative decision which has taken effect in law so as to affect legal rights so that there is no continuing aspect of the decision remaining to be stayed.  If, however, the decision has continuing effects the Court has power, subject to any statutory provision, to stay those effects or some of them subject to it being otherwise appropriate for a stay order to be made.  In this respect I note that s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) distinguishes between the suspension of the operation of the decision and a stay of all or any proceedings under the decision.

24                  I do not consider that a different result can be reached by placing reliance on s 23 of the Federal Court of Australia Act 1976 (Cth) as the accepted source of the Court’s power to stay.  This is because, absent a provision such as the former s 482(2), the decision to the extent it has taken effect is beyond stay. 

25                  There is a further issue latent in the above cases.  It is whether it is correct for the Court to proceed on the basis of the characterisation of the detention of the applicant as a continuing effect of the decision to cancel his visa.  For the respondent it is submitted that such characterisation is inappropriate because of the application of ss 189 and 196 of the Act, rather than because of the decision effecting the cancellation.  In view of the decision in Halmi to the contrary (but founded on the prior statutory authority) and the concession on the point made in respect of the present applicant’s detention, it is unnecessary to decide this issue here.

Conclusion

26                  There were three matters raised in the motion brought for the applicant.  For the reasons given above I consider the decision made by the respondent to cancel the applicant’s residence visa, having taken effect, cannot now be stayed.

27                  In relation to the detention of the applicant, it is accepted on his behalf that absent a stay on the cancellation of his residence visa the Court has no power to order his release. 

28                  In relation to a restraint on the respondent in respect of removing the applicant from Australia, that may be within the Court’s power to control as a continuing effect of the cancellation.  However, here there is an undertaking not to remove the applicant pending final determination of the substituted application.

29                  It follows the applicant’s motion should be refused. 

Associate:

Dated:              19 June 2002