FEDERAL COURT OF AUSTRALIA

Mazid v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1641

ABDUL MAZID v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1342 OF 2002

MOHAMMAD HASSEN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1343 OF 2002

HILL J

13 DECEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.
2. the present proceedings be adjourned until Tuesday 17 December 2002 at 10:15 am.

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

THE COURT ORDERS THAT:

1.   the application be dismissed.

2.   the present proceedings be adjourned until Tuesday 17 December 2002 at 10:15 am.

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

REASONS FOR JUDGMENT

1                     Before the Court are two applications for interlocutory relief.  The first is an application by Mr Mazid, the second an application by Mr Hassen.  For present purposes the facts relevant to each are the same.  In stating those facts it is important to note that no actual hearing of either case has yet taken place and the facts as stated are only those that have been presented to me in the interlocutory application.

2                     In each case the application for substantive relief is an application made under s 39B of the Judiciary Act 1903 (Cth) made relevant to each of the present cases by s 475A of the Migration Act 1958 (Cth) (“the Act”).  Each applicant seeks, substantively, judicial review of a decision made by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refusing to grant a subclass 126 visa.  Each refusal decision was made by the same delegate and was sent to the applicants on 2 December 2002.

3                     It seems that each applicant applied for a private business visa.  It is alleged by the Minister that in each case the application contained a fraudulent statement or false statement.  It seems that in or around January 2001 the Minister wrote to each applicant informing them that it was intended that there be an examination of their applications to determine whether a ground existed to refuse the application for a visa under s 501 of the Act.  That investigation apparently took some time.

4                     On 10 October an officer of the Department of Immigration and Multicultural Affairs granted to each applicant a new bridging visa A with full work rights.  It is common ground but subject to the provisions of s 501F that the bridging visa would remain in force notwithstanding a refusal to grant the visa associated with it for a period of 28 days.  Section 501 of the Act provides relevantly in subsection (1):

“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

5                     By force of subsection (6) various tests are set out which if contravened have the consequence that the person will not pass the character test.  On or about 2 December, there is a difference in date in each case but that difference is not presently material, a Mr McLeod who is apparently assistant director of the Adelaide Skilled Processing Centre of the Department wrote a letter in the following terms:

“On 8 January 2001, you were informed that the Minister of Immigration and Multicultural and Indigenous Affairs intended to examine whether there were grounds to refuse your application for a visa under Section 501 of the Migration Act 1958 (the Act). 

You responded in writing by letter dated 26 February 2001.  Your comments were carefully considered and taken into account.  The Minister of Immigration and Multicultural and Indigenous Affairs has, after exercising the discretion, decided to refuse the grant of visa to you pursuant to s501(1) of the Act.  The particular ground under which you did not pass the character test is s501(6)(c)(ii) of the Act.

…

I enclose with this Notice a copy of the decision record that sets out the reasons for the decision.”

6                     The document enclosed after setting out relevant details of each applicant says:

“On 19 March 1995, you entered Australia on a fraudulently obtained visitor visa in a false South African passport.  On 16 June 1995, you applied for a class AT, Skilled Independent (Migrant) visa. 

My assessment of the case is that you have knowingly presented false or fraudulent documents in connection with entry and stay in Australia.  This action is viewed very seriously.  It has been determined that the nature of this breach is such that you are unable to pass the character test contained in provision 501(6)(c)(ii) and therefore you fail Public interest criteria in 4001 of the Migration Regulations. 

I therefore refuse the grant of subclass 136(6) visas to you and all applicants included in your application.”

7                     Each applicant was then taken into detention where he presently remains.  It is submitted for the applicant that I should grant a mandatory injunction in each case releasing the applicant from immigration detention.  The parties agree that I have power to grant that relief: Minister of Immigration & Multicultural & Indigenous Affairs v VAFD [2002] FCAFC 390.  The Minister reserves the right to contest that decision should that become necessary.

8                     The parties are also in agreement that the appropriate tests to be adopted for interlocutory relief are that the applicant must show that the applicant has an arguable case and that the balance of convenience favours the relief being granted.  It is clear law that those two matters are not totally independent insofar as it can be said that the strength of one bears upon the considerations given to the other so that the stronger the case the applicant has the less the balance of convenience will weigh and vice versa. 

9                     The case for the applicant is quite simple.  It is submitted that the decision which is ordered in the letter of 2 December 2002 in each case was a record of a decision made under s 65 of the Act and not a record of a decision made under s 501 of the Act.  The significance of that is s 501F of the Act relevantly provides that a decision reached under s 501 has the consequence that any other visa including the bridging visa would be refused or cancelled.  There is no comparable provision where a decision is made under s 65 of the Act. 

10                  Section 65 is the general section which empowers the Minister to consider a visa application and if satisfied that it complies inter alia with relevant criteria prescribed by the Act to grant it or if he is not satisfied to refuse it.  The criteria appropriate to the present visa class and indeed most other visa classes is set out in the Migration Regulations 1994 (Cth) Schedule 4, Part 1, Item 4001.  That provides as a criterion the following:

“Either: 

(a) the applicant satisfies the Minister that the applicant passes the character test; or

(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister  that the person passes the character test; or

(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or

(d) the Minister has decided not to refuse to grant the visa to the applicant despite not being satisfied that the applicant passes the character test.”

11                  The applicants place particular weight on the record of decision with its reference to Public interest criteria 4001.  There can be no doubt that there is no reference at all in s 501 to criteria 4001.  The significance of criteria 4001 lies with the criteria for a visa which would ordinarily be a matter relevant to s 65.  The solicitor for the Minister while conceding as he must that the record of decision is not skilfully framed submits that the construction of the Act leads one to the conclusion that where a person does not satisfy the public interest criteria in s 501(6) there can be no real power for the Minister to exercise what otherwise is the discretion conferred upon him by s 65.

12                  I was at least initially attracted to the argument that because s 65 conferred upon the Minister a discretion whether to grant or not to grant a visa it would be open to the Minister even if satisfied that an applicant did not pass the character test under s 501(6) to grant the applicant a visa.  If that was right then it would seem prima facie to follow that two powers for refusing a visa existed in the Act in a case where the Minister was of the view that the applicant failed the character test, the first a power under s 65, the second a power under s 501.  It is obvious that if this was the case very different consequences would flow depending on which power was exercised.  If s 501 was the power that was exercised then the provisions of ss 501A to 501F so far as they relate to the present type of case, would operate being powers that would have no operation if the provisions of s 65 were enlivened. 

13                  There may also be different appeal rights depending upon which power was exercised.  However, because of the exigencies of time, the parties have not been able to present submissions to me on what difference there would be under each section.  However, Mr Markus, appearing for the Minister, pointed to the provisions of 4001(c) and (d).  If the Minister decided not to refuse to grant a visa to an applicant under s 501, even though he was not satisfied that the applicant passed the character test, the consequence would be that the applicant would fail the public interest criteria under 4001(d).

14                  It would follow having regard to the provisions of s 65 that the application would not be granted by the Minister but would need to be refused.  That rather suggests that it is unlikely that there are two powers in a case where a person does not pass the character test being powers existing under both s 65 and s 501.  Another and quite significant matter is the letter dated 2 December 2002 which was headed, "Notice of Decision to Refuse A Visa Under Section 501 of the Migration Act 1958".  It is of course quite possible that the writer of that letter did not know or was mistaken about the power that was exercised by the decision maker, Amanda Edwards.  On the other hand, there is no reason why one should be too quick to determine that a mistake had been made.

15                  However, on its face and assuming there was no other evidence, one is really left with being unable to decide from that correspondence whether the decision really was one that was being reached under s 501 or one that was being reached under s 65.  However, it may be noted that no reference is made anywhere to s 65 in the correspondence.

16                  In summary, although I think it is the case that the applicants do have an arguable case, I do not think it can be said that the applicants’ cases are strong so far as the balance of convenience is concerned.  It is of course obvious that liberty of the subject is a very significant matter.  Absent a weak case the applicants should not be in detention.  However the present case is weak indeed.  Generally the balance of convenience would favour an order freeing a person from detention.  There are a couple of other matters, however, which weigh into the balancing exercise I am required to carry out.

17                  The first is that there is always a danger that a person in the position of each of the present applicants, if released, might disappear into the community.  It is not a danger I ordinarily regard as being of great significance unless there is evidence before me which suggests that this might happen.  However, I should point out that the present is a case where the allegation is that the applicant has entered Australia on a false passport.  Accepting that allegation, as I must at the moment on the material before me, to be correct, or at least to be arguably correct, it does raise some concern about what the applicant in each case might do if they were released from detention.

18                  I am also conscious of the fact that the present is not a case where the suggestion is made that some form of bail should be offered to secure the applicants ultimately presenting themselves should their cases be unsuccessful.  No offer was made on the part of the applicants as a condition of relief that they would submit themselves to report at appropriate intervals while proceedings are continuing.  Though after I raised the matter counsel for the applicants did agree that his clients, would agree to conditions being imposed of that kind, it was hardly a voluntary offer.

19                  Finally, I also take into account the fact that it is possible for a hearing to be scheduled at a very early date and it is agreed between the parties that the matter can be heard on Tuesday morning next week.  I certainly do not wish to see any person in detention who should not be there even if we are talking about a few days.  But having regard to all the circumstances I do not think that the present is an appropriate case for interlocutory relief to be granted.

20                  I should add, because I omitted to make reference to it in the course of these reasons, that the letter of Mr Macleod dated 2 December 2002 did refer to the fact that there had been an exercise of discretion which again of course reinforces his statement that the delegate of the Minister was acting under s 501 rather than acting under s 65 where failure to meet the character test would result in mandatory refusal.

Associate:

Dated:              17 January 2003