FEDERAL COURT OF AUSTRALIA

VLAA v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1620

MIGRATION – bridging visa application – refusal to consider - interlocutory injunction – Hickman proviso

Judiciary Act 1903 (Cth) s 44

Migration Act 1958 (Cth), ss 46, 47, 72 and 73

Federal Court of Australia Act 1976 (Cth) s 23

Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 - followed

Patrick Stevedores Operations    (No. 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 - cited

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 - cited

Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210 - cited

North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30 – cited

Bremer Vulkan Schiffbau und Machinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 – cited

Castanho v Brown and Root (UK) Ltd [1981] AC 557 – cited

British Airway Board v Laker Airways Ltd [1985] AC 58 – cited

South Carolina Insurance Co v Assurantie Mactschappij “De Zeven Provincien” NV  [1987] AC 24 – cited

In re Oriental Credit Ltd [1988] Ch 204 – cited

Chief Constable of Leicestershire v M [1989] 1 WLR 20 – cited

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 - cited

American Cynamid & Co v Ethicon Ltd [1975] AC 396 – applied

NWL Ltd v Woods [1979] 1 WLR 1294 – applied

Cambridge Nutrition Ltd v British Broadcasting Corp [1990] 3 All ER 522 – applied

Woodford v Smith [1970] 1 WLR 806 – applied

Queensland v Australian Telecommunications Commission (198) 59 ALJR 562 – cited

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR, 499 - followed

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - cited

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 - cited

VLAA v Minister for Immigration and Multicultural and Indigenous Affairs

V836 of 2002

FINKELSTEIN J

23 DECEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The Minister for Immigration and Multicultural and Indigenous Affairs, by his delegate is required forthwith to consider whether or not the applicant satisfies the criterion for an eligible non-citizen prescribed in reg 2.20(9)(d) of the Migration Regulations 1994.

2.         The costs of this application be the applicant’s costs in the cause.

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 from Iran, claims to be a Convention refugee, but the Minister, who is not satisfied that he is, has refused to grant him a protection visa.  That decision is under challenge in the Federal Court on remittal under s 44 of the Judiciary Act 1903 (Cth) from the High Court.  In the meantime the applicant, who is currently in immigration detention, has applied for a bridging visa E (Class WE) subclass 051, which is a category of visa that is available to an “eligible non-citizen” who satisfies certain criteria (see Migration Act 1958 (Cth), s 73) and which, if granted, will require the applicant to be released from detention.  The Minister, by his delegate, has refused to consider the bridging visa application because he says the applicant is not an eligible non-citizen and therefore does not have standing to apply for this class of visa.  The applicant has begun this proceeding to compel the Minister to deal with his visa application.  He also asks for interlocutory relief, namely that he be released from detention pending the determination of his principal application.  It is the interlocutory application which I must now consider.

2                     To put the application in perspective I will set out the background facts, which are uncontroversial.  The applicant has been in detention for more than two years.  In 2001 he was being held at the Port Hedland Detention Centre.  In about the middle of that year a serious dispute broke out between two detainees.  The applicant intervened.  This resulted in boiling water being thrown over the applicant causing him to suffer severe burns to up to 50 per cent of his body.  This injury, and his continued detention, has caused the applicant to suffer post-traumatic stress disorder and “a major depressive disorder”.  A number of doctors who have examined him have expressed the opinion that the applicant’s continued detention will aggravate his mental illness, and, if he remains in detention, he will not receive the treatment he needs.

3                     Having regard to the position taken by the Minister’s delegate, it is necessary to identify the type of person who may be an “eligible non-citizen”.  Section 72 of the Migration Act relevantly defines an “eligible non-citizen” as a non-citizen who is in a prescribed class of persons.  Regulation 2.20 of the Migration Regulations 1994 sets out the classes of person who are prescribed for the purposes of the definition.  In this case the applicant says that he falls within the class in reg 2.20(9) which is in the following terms:

“This subregulation applies to a non-citizen:

(a)               who, on or after 1 September 1994:

(i)                 was refused immigration clearance; or

(ii)               bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and

(b)               if:

(i)                 on or after 1 September 1994:

(A)              the non-citizen made a Protection (Class AZ) visa application that is not finally determined; or

(B)              the non-citizen applied for judicial review of a decision to refuse a Protection (Class AZ) visa; or

(C)             the Minister has applied for judicial review of a decision in relation to the non-citizen’s Protection (Class AZ) visa application; or

(ii)               on or after 20 October 1999:

(A)              the non-citizen made a Protection (Class XA) visa application that is not finally determined; or

(B)              the non-citizen applied for judicial review of a decision to refuse a Protection (Class XA) visa; or

(C)             the Minister has applied for judicial review of a decision in relation to the non-citizen’s Protection (Class XA) visa application; and

(c)               who has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment; and

(d)               in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.”

It is common ground that the applicant satisfies subregs 9(a) and 9(b).  The Minister contends that the applicant does not satisfy subreg 9(c) and that there has been no decision whether he satisfies subreg 9(d) because it was unnecessary to decide that issue. 

4                     This is a convenient point at which to mention another matter concerning a bridging visa subclass 051.  To be granted such a visa an applicant must satisfy certain criteria (set forth in the Migration Regulations Sch 2 reg 051) both at the time of application and at the time of decision.  At the time of the application, the applicant must be an eligible non-citizen, have signed a prescribed undertaking to the Minister and satisfy the Minister as to public interest and health criteria (item 051.21).  At the time of decision, the applicant must still satisfy these criteria (item 051.22).

5                     I will now turn to the question whether the applicant has satisfied subreg 9(c).  The dispute centres on the meaning to be given to a report prepared by Dr Kennedy, a medical specialist appointed by Immigration to assess the applicant.  Dr Kennedy was specifically requested to advise whether or not the applicant satisfied the eligibility criteria for a bridging visa.  His attention was drawn to reg 2.20(9)(c).  He was asked to “assess whether [the applicant] has special needs that cannot be cared for in a detention environment”.  To assist in his task Dr Kennedy was provided with background information about, and was given access to, the applicant.

6                     Dr Kennedy provided a written report on 3 June 2002.  It is a lengthy document but, for present purposes, it is only necessary to summarise its contents.  First, Dr Kennedy explains what he understood to be his task in this language:  “The purpose of the evaluation was to assess whether [the applicant] has special needs that cannot be cared for in the intention [I assume Dr Kennedy meant detention] environment.”  The report then recounts the applicant’s history, which was provided during an interview.  This section is followed by an evaluation of the applicant’s condition.  According to Dr Kennedy the applicant “is at the very least moderately depressed, and probably severely depressed.”  Finally, and relevantly for the purposes of this application, there is a section headed “Summary and Opinion”.  I propose to extract three paragraphs from this section:

“He [the applicant] presents with moderately high levels of depression, and a chronic Post-Traumatic Stress Disorder.  [The applicant’s] depression appears to be a result of the combination of the PTSD, the physical problems associated with the burns and the ongoing confinement.  Due to these psychological disorders, [the applicant] presents as a consistent risk while he remains in detention.  Currently while he is taking anti-depressants, it would appear that he continues to suffer from symptoms associated with depression, and the environment in which he is in is exacerbating his distress.

In addition, the distress associated with tending to his burns and having to deal with this disfigurement in such a public environment is somewhat problematic for him.  I put less weight on the physical dealing with the burns than the psychological impact of being in detention, which is a constant reminder of the trauma.  Clearly, options have been offered to deal with the day to day dealing with his burns.  However the detention compounds the symptoms that are associated with his PTSD, and subsequently also exacerbates his depression.  In my view, the situation at Maribyrnong Detention Centre appears to be one in which his [sic] not receiving the treatment that he requires at present, specifically in relation to his mental health needs.  In my opinion, [the applicant] would be better housed in a supervised facility where he is able to get some respite and both treatment of his physical difficulties and care for the emotional damage that has been caused.  In addition, I would consider it appropriate that [the applicant] seek more regular both psychological and psychiatric help to relieve the symptoms of both the PTSD and depression, and obviously physical treatment as appropriate.

In my view, a facility where there is a health care professional or carer in attendance to assist him in some of the difficulties that he is presenting with may be more appropriate than the situation that he presents himself at present.  I would consider that his psychological treatment would be necessary over a period of approximately one-year (sic) on a weekly basis.  I also feel that [the applicant] would need to continue to see a psychiatrist over a period of that year on a monthly basis.  In addition, it may be appropriate for him to be involved in-group (sic) activities with individuals, who have also suffered major burns.  I would imagine his treating hospital would be in the position of being involved in this situation.”

7                     The first thing for me to do, this being an interlocutory application, is to decide whether there is a serious question to be tried as regards the applicant’s allegation that he has satisfied subreg 9(c).  Although this is a question which only I can resolve, I cannot completely ignore the fact that this was the conclusion reached by Ms Barrio, a departmental officer who was responsible for dealing with an earlier bridging visa application made by the applicant.  After reading various reports, including the one prepared by Dr Kennedy, Ms Barrio wrote an email to another departmental officer, a copy of which can be found on the Minister’s file, which states that “the medical reports clearly indicate that [the applicant] cannot be properly cared for in detention.”  To my mind there can be little doubt that this is an accurate assessment of Dr Kennedy’s conclusion.  I acknowledge that, on one view, the doctor’s expression of opinion was qualified.  For example, Dr Kennedy says that it “appears” that the applicant is not receiving the treatment that he requires, and also that the applicant would be “better housed” in a supervised facility.  However, bearing in mind that the doctor knew the reason forthwith his evaluation was being sought, I interpret his report as concluding that the applicant has special needs that are not presently being met.  If the doctor had been of a different opinion I am sure that he would have said so in his summary.  Further, where the question whether subreg 9(c) is satisfied is objective only and no evidence can be called to resolve the issue, it is as well that I express my concluded view on the matter, which I am permitted to do on an interlocutory application: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533.  It is proper to do so in this case where, at a final hearing, the parties would do not more than repeat their submissions.

8                     In this circumstance two questions immediately arise.  The first is whether the court has power to grant the interlocutory relief which the applicant seeks.  The second is whether that relief should go.  The reason the first question arises is as follows.  The power of the Federal Court to grant an interlocutory injunction under s 23 of the Federal Court of Australia Act 1976 (Cth) is not unlimited.  According to Patrick Stevedores Operations    (No. 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 33:

“The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.”

(Citations omitted)

9                     In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 the High Court held (by majority) that at least in relation to the protection of private rights, the power to grant an injunction is confined to the need to protect or assert some legal or equitable right which the court could enforce by final judgment:  see Australian Broadcasting Commission v Lenah Game Meats 76 ALJR at 14 per Gaudron J, at 23 per Gummow and Hayne JJ and at 34 per Kirby J.  The basis of this view appears to be the statement of Lord Diplock in Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210, 256 who adopted the view of Cotton LJ in North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30, 39-40.  See also Bremer Vulkan Schiffbau und Machinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, 922.  I do not know whether the High Court intended to exclude the qualification (that an injunction can also be granted in any case where it is appropriate to avoid injustice) introduced by Lord Scarman in Castanho v Brown and Root (UK) Ltd [1981] AC 557, 573 and accepted by Lord Diplock in British Airway Board v Laker Airways Ltd [1985] AC 58, 81.  See also South Carolina Insurance Co v Assurantie Mactschappij “De Zeven Provincien” NV  [1987] AC 24; In re Oriental Credit Ltd [1988] Ch 204; Chief Constable of Leicestershire v M [1989] 1 WLR 20.  Whatever may be the true position in the realm of private law, this case is concerned with public wrongs and not private rights, so different considerations will apply.  Here reference could be made, for example, to cases granting injunctions in aid of the criminal law which often do not protect any legal or equitable right. 

10                  How does all this affect the applicant?  I am satisfied that the delegate was in error in deciding the applicant did not satisfy subreg 9(c), but it does not follow that the applicant is entitled to a bridging visa and to be released from detention.  On one view, all that the applicant is able to recover from the Court is an order that his standing as a visa applicant be further considered and, if he has standing, that his bridging visa application be considered.  This would require the delegate to proceed in the following way.  First, the delegate would consider whether the applicant has satisfied subreg 9(d).  (I note that the applicant says that subreg 9(d) is ultra vires the rule making power because it is inconsistent with the statutory scheme by prescribing a criterion which is vague and requires the formation of an opinion.  I said during argument, and repeat here, that this appears to me to be a tenuous argument with little prospect of success).  If the applicant satisfies subreg 9(d), then the delegate has before him a valid application for a bridging visa, which he would then be required to consider.  This would involve the delegate deciding whether the applicant satisfied the criteria in item 051.21 (that is, the criteria that must be satisfied at the time of application) and then whether the applicant satisfied the criteria in item 051.22 (that is, the criteria that must be satisfied at the time of decision).  It is only if the applicant satisfies that criteria and obtains a bridging visa that he would be entitled to be released from detention.  In the unlikely event he was not then released, he could obtain an order to that effect.

11                  That will not be the only circumstance in which the applicant could obtain an order that he be released from detention.  In Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 the Full Court decided that an interlocutory order for release could be granted at the suit of a person who could establish the existence of a serious question as regards whether he is not an unlawful non-citizen.  In VFAD the visa applicant alleged, and the Minister denied, that he had been granted a protection visa and that his continued detention was therefore unlawful.  The visa applicant was able to persuade the court that his case was sufficiently arguable to warrant an order for his release pending trial. 

12                  This case is different.  As the Minister correctly points out, the applicant does not contend that he is presently entitled to be released from detention.  He accepts that, strictly speaking, he is not entitled to be released until he has obtained his bridging visa.  It is for this reason that the court may not have power to make an interlocutory order which would see the applicant released.

13                  In my view, however, merely because a visa applicant is unable to say that he is entitled to a visa, does not prevent the court from exercising its jurisdiction in an appropriate case.  For example, if the Minister refused to deal with a bridging visa application when it was clear that the applicant was an eligible non-citizen and had standing to apply for the visa, and it was also clear that there was no basis upon which the visa could be refused, the court could at trial issue a mandatory injunction requiring the Minister to grant the visa.  In such a case the court might also make an interlocutory order that the visa applicant be released pending trial. 

14                  Unfortunately, the applicant is not in that situation.  At the moment all that he can demonstrate is that he has satisfied three of the four criteria in subreg 9.  The delegate, Mr Norton, was called to give evidence.  He said that the information which was provided with the visa application was not sufficient to enable him to determine whether subreg 9(d) had been satisfied.  I think his evidence in this regard was unconvincing, but, at any rate, he has filed an affidavit in which he says he now has the information that will enable him to make a decision.  The evidence suggests that if he considers the matter in a bona fide way, Mr Norton will be satisfied that subreg 9(d) has been met.  But, of course, that is a matter entirely for him.

15                  I should mention that Mr Norton has only recently received the relevant information.  However, I do not think that this prevents Mr Norton from considering the information for the purposes of deciding whether subreg 9(d) has been satisfied.  In this regard I believe the position to be as follows.  Upon receipt of an application for a bridging visa from a person who purports to be an eligible non-citizen, the Minister must determine whether the applicant is an eligible non-citizen and has standing to make the visa application.  Until that issue has been resolved the Minister is not required to treat the application as a valid application.  In determining whether or not the visa applicant is an eligible non-citizen the Minister may have regard to information which was in his possession at the time of receipt of the visa application as well as information that comes into his possession later.  It seems to me that the scheme relating to bridging visa applications, and to other visa applications, could not properly operate if the Minister were not able to regard information acquired after receipt of the application.  When the Minister is satisfied that the criteria for an eligible non-citizen have been met, the application must then be treated as a valid application.

16                  Moreover, I consider that, upon receipt of an application for a bridging visa, the Minister is under a duty to determine whether or not it is a valid application (which may require the Minister to decide whether the visa applicant is an eligible non-citizen) and, if satisfied that it is valid, to consider the application.  The second duty derives directly from s 47 of the Migration Act which provides that the Minister must consider a valid application and is not to consider an invalid application.  The first duty is implicit.  The implication arises from both ss 46 (which describes valid visa applications) and 47. It seems to me that there is no warrant for accepting the opposing view which is that the Minister could receive an application for a bridging visa and put it aside to consider at his leisure, if at all.  In particular, unless the Minister determines whether or not he has a valid visa application he will not know whether he is required to satisfy the obligation imposed by s 47.

17                  During the course of discussions, I raised the question whether, if I expressed the view that subreg 9(c) had been satisfied, Mr Norton would immediately consider whether or not the applicant satisfied subreg 9(d).  Mr Gray, who appeared for the Minister told me that the delegate would not deal with the application in the absence of an order.  In that circumstance, provided the balance of convenience justifies that course, I will make an order requiring the matter to be forthwith considered by the Minister. 

18                  On the question of the balance of convenience, I take into account the following.  First, there is an obvious urgency with this application, bearing in mind the applicant’s state of health.  Second, the merits of the case appear to be with the applicant.  It is not usually appropriate to form a view on the merits until the final hearing: American Cynamid & Co v Ethicon Ltd [1975] AC 396, 408.  But there are instances where this is properly done in order to see where the balance of convenience lies.  It is sometimes done where the decision to grant the interlocutory injunction will, in a practical sense, determine the substance of a case:  NWL Ltd v Woods [1979] 1 WLR 1294, 1306-1307; Cambridge Nutrition Ltd v British Broadcasting Corp [1990] 3 All ER 522; Woodford v Smith [1970] 1 WLR 806.  This is such a case, at least in a limited sense.  I mean by this that the practical effect of an interlocutory injunction will be to require the Minister to finally decide whether or not the applicant is an eligible non-citizen.  On the other hand, the order will not require the Minister to do anything as regards the visa application itself.  That is a matter which will take its own course.  In this case, at least in relation to the issues which I have considered, I have for practical purposes decided the case against the Minister.  Third, and this is related to the second point, while the court has often expressed its reluctance to grant mandatory relief at the interlocutory stage (as to which see Queensland v Australian Telecommunications Commission (1985) 59 ALJR 562, 563), the position now is that if the circumstances so require, that is if the justice of the case demands that it be done, a mandatory order will be made: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499.  That is the situation in this case.  The evidence shows that the applicant is in need of medical treatment which he is not receiving while he remains in detention.  He will receive that treatment if released from detention.  If released, there is little risk of him absconding.  Accordingly, the balance of convenience favours the grant of the relief which I have identified.

19                  A final matter which I must consider is whether the order I propose can be made in virtue of the Hickman proviso ( R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) in s 474(1) which, for present purposes, I accept purports to apply to a refusal by the Minister to consider the validity of a visa application.  In Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 632 Gaudron and Gummow JJ explained that a Hickman proviso “cannot prevent [the court] from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge ‘imperative duties’ or which go beyond ‘inviolable limitations or restrictions’.”  It seems clear to me that the Minister’s duty to consider whether or not an applicant has standing to apply for a visa, as well as his duty to consider the visa application itself, are “imperative duties”.  Unless these duties are imperative the administration of the Migration Act could well break down.  Therefore, the Hickman proviso does not stand in the applicant’s way.

20                  Accordingly, there will be a mandatory interlocutory injunction requiring the Minister to consider whether the applicant has satisfied sub-reg 9(d).

Associate:

Dated:              23 December 2002