FEDERAL COURT OF AUSTRALIA

VMOZ v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 188

MIGRATION – protection visa – application for interlocutory relief – whether grant of visa – documentary evidence of grant of visa – whether completion of release papers and draft grant papers sufficient to constitute decision by delegate – no decision record signed by delegate – whether applicant entitled to release from immigration detention – whether serious question to be tried – whether balance of convenience favours release – whether possible production of evidence in discovery sufficient to influence court’s discretion – whether contemporaneous criminal proceedings relevant – merit decisions of delegate or Refugee Review Tribunal presumptively correct.

Migration Act 1958 (Cth) ss 13, 14, 29, 36, 47(1)(2), 65, 65(1)(a)(b), 67, 68(1),189, 196(1), 496, 497(1)

Migration Regulations 1994 (Cth) Sch 2, items 785.221, 785.226

Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 210 –cited

Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 341, 350, 365, 371 – cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 – cited  

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 762 – cited

Applicant VFAD of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 1062 – applied

VHAF v Minister for Immigration and Multicultural Affairs   [2002] FCA 1243 – applied

VJAV v Minister for Immigration and Multicultural Affairs [2002] FCA 1253 – cited

Hon Justice Michael Kirby Judging: Reflections on the Moment of Decision (1999) 18 Australian Bar Review 4 at 15

VMOZ v MINISTER FOR IMMIGRATION, MULTICULTURAL AND

INDIGENOUS AFFAIRS

NO V96 OF 2003

HEEREY J

13 MARCH 2003

MELBOURNE

THE COURT ORDERS THAT:

1.      The application for an interlocutory injunction is dismissed.

2.       The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks interlocutory relief restraining the respondent Minister from continuing to detain him in immigration detention under the Migration Act 1958 (Cth) (“the Act”).  The applicant’s substantive claim is that on or about 10 October 2001 or alternatively on or about 18 December 2001 a decision was made by a delegate of the Minister pursuant to s 65 of the Act to grant him a protection visa in accordance with s 36. 

2                     Senior counsel for the Minister accepts that the Court has jurisdiction to grant the interlocutory relief sought but submits that the applicant has not established a serious issue to be tried and that in any event there are factors which weigh against the exercise of discretion in his favour. 

The legislation

3                     By s 29 the Minister may “grant a non-citizen permission, to be known as a visa”, to travel to and enter Australia and/or to remain in Australia.  The combined effect of ss 13 and 14 is that a non-citizen in the migration zone who does not hold a visa is an unlawful non-citizen.  Persons known or reasonably suspected by officers of the Department to be unlawful non-citizens must be detained: s 189.  By s 196(1), an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is either removed from Australia, deported, or granted a visa. 

4                     When a valid application for a visa is made the Minister is to consider it: s 47(1).  That obligation, relevantly, is to continue until either the application is withdrawn or the Minister grants or refuses to grant the visa: s 47(2).

5                     If, after considering a valid application for a visa, the Minister is satisfied that certain criteria have been satisfied, the Minister is to grant the visa: s 65(1)(a).  If not so satisfied the Minister is to refuse to grant the visa: s 65(1)(b).  These are not discretionary decisions: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650-651. 

6                     Bys 67 it is provided “a visa is to be granted by the Minister causing a record of it to be made”.  The Act and Regulations contain no definition of “grant” or “record” and do not prescribe, as far as I was told, any particular form.  Nor is “visa” defined apart from, as already mentioned, s 29 which speaks of “permission, to be known as a visa”. 

7                     By s 68(1) a visa is to have effect “as soon as it is granted”. 

8                     The Minister’s powers may be exercised by a delegate authorised in writing: s 496.  Section 497(1) provides:

“If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.”

Application for protection visa

9                     The applicant, a male then aged 19 years, arrived in Australia without travel documents by a boat subsequently codenamed “Culgoa” in mid March 2001.  His claimed country of nationality was Afghanistan.  On 26 July 2001 he applied for a protection visa. 

10                  Ms Deborah Mary Shalla, a delegate of the Minister, was assigned his case.  She interviewed the applicant on 28 July 2001.  On 1 September Ms Shalla sent an email to Kay Newman, a superior officer, requesting permission to “finalise” the applicant’s application, notwithstanding that she (Ms Shalla) had not received the result of the “EP” (“effective protection”) enquiry in relation to Pakistan.  (If enquiries show that an asylum seeker is entitled to residence in a country other than that where fear of persecution is asserted and will receive effective protection there then that will form a ground for a finding that the person is not a refugee within the meaning of the Refugees Convention.)

11                  On 9 October 2001 another officer, one David Ohlmus, passed on the instruction “given the current … situation in Pakistan, please proceed with this case”.  (This and subsequent emails referred to below were received by Ms Shalla, amongst others.)  On 10 October another officer sent an email attaching a “ready for release” pro forma. Some further emails followed and in particular one on 12 October indicating that the applicant, amongst others, would be released from Curtin Immigration Detention Centre on Thursday 18 October. 

12                  A further email confirming this was sent on 15 October advising of the procedure to be adopted.  Undated grant letters were to be sent to the Perth Boat Releases Department mailbox.  A proposed grant or release was not to be communicated to the applicants, their representatives or supporters until after the release had occurred.  Understandably it was seen as essential that the grant of the visa should synchronise exactly with the release of the person concerned.  If a grant of visa were to be made any earlier, the continued detention of the person would be unlawful. 

13                  There appears on the Departmental file, which was obtained under Freedom of Information search, an unsigned and undated letter (“the Draft Letter”) addressed to the applicant which would appear to be a form of letter appropriate to advise of the grant of a protection visa.  It is marked “Hand Delivered” and is as follows (emphasis in original):

“Dear Mr [VMOZ]

I am pleased to advise that you have been granted a sub-class 785 (Temporary Protection) visa. 

Evidence of visa grant is on the enclosed Visa evidence card.  Please note the conditions attached to this visa.

 Note that:

·        The visa allows you to remain in, but not re-enter, Australia for three years or if you have applied for another protection (Class XA) visa before this visa expires, this visa will continue until that Class XA protection visa application is finally determined;

·        as a subclass 785 visa holder, you can work without restrictions in Australia;

·        you may apply for special benefits.  More information is available from the nearest Centrelink Office, or phone 132 850.  If you have difficulty speaking English, phone 131 202.  These calls can be made from anywhere in Australia for the cost of a local call;

·        you are not able to apply for any other substantive visa, apart from another class XA visa;

·        you are not able to sponsor family members to come to Australia; and

·        you are required by law to notify DIMA of any change of residential address within 14 days of the change.”

If you need any more information regarding your immigration status in Australia, please contact the nearest office of this Department.

Yours sincerely,

Deborah Shalla

Onshore Protection, NSW 2001

  /  /2001

Cc:      J. Fisher

            Refugee and Immigration Legal Centre Inc

            Fax (03) 9483 1136

            Manager, Curtin IRPC” 

14                  It is not suggested that the Draft Letter or a letter in that form was ever signed by Ms Shalla or dated or given or sent to the applicant.  The evidence does not disclose any “Visa evidence card” in relation to the applicant.

15                  It appears from a computer printout on the file that the public interest criteria 4002 clearance was withdrawn by ASIO on 15 October 2001.  This is one of the criteria to be satisfied at the time of the decision to grant a protection visa: see item 785.226 of sch 2 to the Regulations.  It is in these terms:

‘The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.”

16                  On 17 October 2001 an email advised of the withdrawal of this clearance and requested that the applicant “be withdrawn from the release list”. 

17                  After some further internal emails it appears the applicant was again considered to be “ready for release” on 19 December 2001.  However this did not occur and on 7 February 2002 another delegate Ms Kirsty Bradbeer took over the file.  On 27 March 2002 Ms Bradbeer made a decision refusing to grant a protection visa and notified the applicant accordingly.  The basis of this decision was her finding that the applicant was a Pakistani national.  She found that the applicant had never, as he alleged, experienced mistreatment or persecution at the hands of the Taliban and that he did not have a well-founded fear of persecution for any Convention reason.

18                  The applicant sought review of this decision by the Refugee Review Tribunal but on 21 August 2002 the Tribunal affirmed the delegate’s decision. 

19                  As far as I was informed, no judicial review has been sought of Ms Bradbeer’s decision or the decision of the RRT affirming it.

20                  In an affidavit sworn on 5 March 2003 Ms Shalla deposed that she believed the Draft Letter was prepared by another officer of the Department while she was absent interstate on Departmental business unrelated to the applicant.  She further deposed:

“Presumably it was prepared in anticipation that I would make a favourable decision in relation to the applicant.  However at no stage did I do so.  The pro forma letter was not prepared by me and at no stage did I sign or date it or deliver it to anyone.

…

At no time did I reach a state of satisfaction that the applicant met all the criteria for the grant of a sub-class 785 (Temporary Protection) visa.  I did not at any time make a decision in relation to the applicant’s protection visa application or make any record of any such decision and did not grant the applicant a sub-class 785 (Temporary Protection) visa or make a record of any such visa.”

Is there a serious issue to be tried?

21                  There have been some recent cases where applicants for protection visas, having brought a claim alleging that they have been granted a visa, have sought by way of interlocutory relief release from immigration detention:  Singh [1999] FCA 762, VFAD [2002] FCA 1062, VHAF [2002] FCA 1243 and VJAV [2002] FCA 1253.  In the instances where an injunction was granted there appeared to be at least a record of a decision signed by a delegate.  For example in VFAD Merkel J said at [50]:

“The applicant has a strong prima facie documentary case as the decision record appears to be a decision to grant him a protection visa”.

22                  Likewise in VHAF at [59] Gray J noted that:

“The Minister did not deny that the decision record on its face appears to be the grant of a visa.  He relied on affidavit and documentary evidence designed to show that the record does not reflect an actual decision to grant a visa.”

Later his Honour said at [71]:

“So far as the documentary evidence goes, there is nothing on the face of the decision record to indicate that it was intended to be a draft.  In particular, it is conceded that the document bears [the delegate’s] signature.  Only the absence of a date, coupled with evidence of the practice of dating each record of a decision, would detract from the documentary evidence.”

His Honour continued at [74]:

“Counsel for the Minister suggested that there is authority that a written protection visa decision record is not to be regarded as a decision granting a visa.  They referred to Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 762.  It is plain from the examination of that case at [4] and [5] that the document concerned in that case did not express the satisfaction of the delegate as to all of the matters referred to in s 65(1) of the Migration Act.  On no view could such an incomplete document be regarded as a grant of a visa for the purposes of s 67, and Madgwick J was correct so to hold in that case.”

23                  It is clear from s 47 that consideration of a valid visa application is a continuing obligation on a delegate up until the moment of grant or refusal.  Consideration of a decision is a process which, as a matter of ordinary language, precedes, and is distinct from, the making of the decision itself.

24                  Consistently with this, the scheme of the Act and the Regulations requires some criteria for the grant of visas to be satisfied at the time of application and some at the time of decision.  Relevantly for the present case, sch 2 requires for sub-class 785.221 that at the time of decision the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

25                  Moreover, in the case of protection visas there is the practical consideration already mentioned.  As might have been expected, there has been a practice within the Department which assumes that at some stage it is agreed that an applicant for a protection visa is likely to succeed and that machinery arrangements for the applicant’s release should be put in place.  But that practice also has to ensure that grant of visa and release will coincide.  So until the actual decision to grant the visa is made by the delegate and recorded there is no “permission” to the non-citizen within the meaning of s 29. 

26                  With administrative decision-makers, as with judges, decision-making is a mental process extending over time.  Reflection or further information may cause the decision-maker’s tentative views, however firm, to change during the course of that period, and right up until the moment of decision: see Hon Justice Michael Kirby Judging: Reflections on the Moment of Decision (1999) 18 Australian Bar Review 4 at 15.  But the law governing the administrative or forensic setting will usually provide for some event or procedural step which is to constitute the promulgation of the decision, upon the taking of which the consequences prescribed by the law take effect. 

27                  In my opinion there is not a serious issue to be tried that this final step was taken in the present case.  In October and December 2001 the only person (apart from the Minister himself) who could make a decision to grant the applicant a protection visa was the Minister’s delegate Ms Shalla, even though others might play a part in the administrative tasks involved: s 497(1).  Her sworn evidence is that no such decision was made.  The Draft Letter cannot itself constitute her decision, or any record thereof.  To argue that there might be within the Department some other document constituting or recording a decision which further search might disclose is to engage in mere speculation. 

Discretionary factors

28                  I accept of course that mandatory detention is a major hardship for any individual. There is also an affidavit from the applicant describing loss of sleep, depression, loneliness and other aggravating features in his case. 

29                  The applicant has been charged with damaging property at the detention centre.  A Magistrate has granted bail on fairly lenient reporting conditions.  I do not think that factor is relevant.  If it were otherwise appropriate that the interlocutory relief should be granted, the fact that the criminal justice system has granted the applicant conditional liberty pending the determination of this charge should not make any difference.

30                  What does seem important however is that another delegate has determined that the applicant is not a refugee, that decision has been affirmed by the RRT and neither decision has been challenged in judicial review proceedings.  Those decisions on the merits of the applicant’s claim should be treated as presumptively correct: Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 341, 350, 365, 371, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 210 at 228   The consequence is that at the moment the applicant remains an unlawful non-citizen for whom immigration detention is mandatory under the Act.

Orders

31                  The application for an interlocutory injunction will be dismissed with costs.

Associate:

Dated:  13 March 2003