FEDERAL COURT OF AUSTRALIA

Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 1 September 2014 be dismissed.

2.    The applicant pay the first respondent’s costs of the abovementioned application.

3.    The time for the applicant to file an application for judicial review of the decision of the Administrative Appeals Tribunal given on 21 December 2011 be extended to 23 July 2014.

4.    The draft notice of appeal lodged by the applicant on 23 July 2014 stand as the application for judicial review.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Background

1    The applicant came to Australia in early 2009 on a Skilled - Independent Subclass 136 visa. In January 2011, he was convicted of serious criminal offences and was sentenced to three years’ imprisonment. His visa was subsequently cancelled on 27 September 2011 under s 501 of the Migration Act 1958 (Cth) (the Act). He then sought review of this decision, made by a delegate of the first respondent (then the Minister for Immigration and Citizenship), in the Administrative Appeals Tribunal (the Tribunal). The Tribunal, on 21 December 2011, affirmed the delegate's decision.

2    The applicant lodged an application for a protection visa on 5 February 2013 which was refused by a delegate of the first respondent, then the Minister for Immigration and Citizenship, on 17 July 2013. The applicant unsuccessfully sought review of that decision in the Refugee Review Tribunal. He subsequently sought judicial review of that decision in the Federal Circuit Court of Australia. A hearing was held before Lucev J on 14 August 2014 and that decision remains reserved.

Applications

3    On 23 July 2014 the applicant filed an application for an extension of time to lodge an application for judicial review of the decision of the Tribunal dated 21 December 2011. The applicant has lodged with this application a draft notice of appeal. However, it is apparent that he is, in substance, seeking judicial review of the Tribunal’s decision. I will treat this draft notice of appeal as the draft application for judicial review.

4    By an interlocutory application, filed on 4 September 2014, the applicant seeks, pending the determination of his application for review of the decision to cancel his visa, an injunction to restrain the first respondent (Minister) from continuing to detain the applicant in immigration detention.

5    I will deal with these applications in turn.

Injunctive relief

6    The applicant is being detained for the purpose of removing him from Australia when it is reasonably practicable to do so, and for the purpose of excluding him from the community prior to his removal. There is no present intention to remove the applicant while his applications for review of the cancellation decision and refusal of his protection visa application have yet to be finally determined. Detention under those circumstances is authorised by ss 189 and 196 of the Act.

7    The system of detention established by ss 189 and 196 is one of mandatory detention: Al-Kateb v Godwin (2004) 219 CLR 562 per McHugh J at [33]-[35], Hayne J at [221]-[233], [241] (with whom Heydon J at [303] substantially agreed) and Callinan J at [292] and [298].

8    Under s 189 of the Act there is a statutory command to officers to detain a person known, or reasonably suspected, to be an "unlawful non-citizen": Ruddock v Taylor (2005) 222 CLR 612. It was this statutory command on which immigration officers acted in detaining the applicant.

9    A person becomes subject to being detained if he or she has the status of being an "unlawful non-citizen", or is reasonably suspected of being an unlawful non-citizen, a status that is defined in contrast to a person who is a "lawful non-citizen", being a person in the migration zone who holds a visa (s 13(1) of the Act). Although the applicant denies that this is his status in fact he became an unlawful non-citizen, and thereby subject to detention under s 189, upon the cancellation of his visa. Although his application for review would challenge the decision to cancel his visa, until such time that the Court may find that the decision is affected by error the applicant remains an unlawful non-citizen.

10    Sections 196(1), (3) and (4) are in these terms:

Duration of detention

(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

. . .

(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

11    It is common ground that none of the events specified in s 196(1) have occurred with respect to the applicant.

12    The effect of s 196(3) is to prevent this or any court from releasing an unlawful non-citizen detained under s 189 other than in the circumstances described at s 196(1)(a), (aa) or (b) unless the non-citizen is granted a visa. Although couched in the context of an application for an order restraining the Minister from continuing to detain the applicant, the effect of such an order would be to release the applicant from detention.

13    In Al-Kateb Hayne J said, in reference to ss 189, 196 and 198, that the words of the sections are "intractable" (at [241]). Justice McHugh said that "[t]he words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights" (at [33]), and, specifically in relation to s 196 (at [35]):

The unambiguous language of s 196 - particularly sub-s (3) - indicates that Parliament intends detention to continue until one of the conditions expressly identified therein - removal, deportation or granting of a visa - is satisfied.

14    The applicant contends that the general power vested in this Court by s 23 of the Federal Court of Australia Act 1976 (Cth) is warrant for the order he seeks. This is not so. As Kirby J said in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 (at [193]):

[The Migration Act 1958 (Cth)] is specific, particular and clear so far as its requirement for universal mandatory detention is concerned, including in relation to children. Such requirements prevail over any otherwise existing general powers enjoyed by federal courts, including this Court …".

15    The applicant seeks to rely on the decisions of Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 and Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249. Preston, VFAD and the related line of cases are no longer good authority with respect to the granting of interlocutory relief concerning persons held in immigration detention. As the Minister correctly submits those cases were decided prior to the High Court's decisions in Al-Kateb and Re Woolley, in which the High Court refused to read down ss 189 and 196, and were decided prior to the amendments to the Act made by the Migration Amendment (Duration of Detention) Act 2003 (Cth), which introduced s 196(4) to the Act.

16    Section 196(4) represents a further restriction upon the granting of relief by an order which would effect the applicant’s release. It provides that subject to release from detention in the circumstances allowed by s 196(1)(a), (b) and (c), if a person is "detained as a result of the cancellation of his or her visa under section 501", the detention is to continue "unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen".

17    The expression "detained as a result of the cancellation of his or her visa", I accept, must be understood in the context of s 189.

18    Accordingly, where, as here, a person has the status of being an unlawful non-citizen because of a decision to cancel his or her visa under s 501 that detention is "as a result of" the cancellation under s 501.

19    I would for these reasons dismiss the applicant’s interlocutory application for injunctive relief with costs.

Extension of time

20    Pursuant to s 476A(1)(b) of the Act, this Court has original jurisdiction in relation to a privative clause decision of the Tribunal on review under s 500.

21    An application for a remedy such as judicial review in relation to a migration decision must be made to this Court within 35 days from that migration decision. This Court may, under the provisions of s 477A(2) of the Act, extend the 35 day period if the following is satisfied:

(a)    an application for an extension of time has been made in writing to the Court, specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending the time.

22    Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 at 480, when considering similar provisions under the former High Court Rules, said that in considering whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time.

23    The Minister rests his opposition to the application for an extension of time principally upon two bases: the length of the delay and the reason for the delay. The Minister, for present purposes, does not contend that the proposed appeal is without merit although he does not accept that the merits are strong.

The extent of the delay

24    A delay of two and a half years after the 35 day time limit prescribed by s 477A(1) of the Act is, on any view, a lengthy delay. The longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38], citing Jess v Scott (1986) 12 FCR 187 at 195.

The reasons for the delay

25    The applicant is in immigration detention because his visa has been cancelled. He relies upon his affidavit sworn on 8 July 2014. He deposes that due to financial hardship he has not been able to secure professional legal advice to assist him with his application for judicial review. However, he has tried on quite a number of occasions to obtain such advice. Legal Aid was, by letter from Legal Aid Western Australia dated 7 February 2012, refused on the basis that there was a high demand for limited funds and that legal aid is not ordinarily granted for this type of matter.

26    He attempted to get private legal advice. He was informed that fees would be in the order of $25,000. This he could not afford given his circumstances.

27    He then made efforts to obtain legal advice through the Citizens Advice Bureau of WA Inc but in September 2012 this organisation declined his request on the grounds that it did not have the relevant expertise. He was referred to a solicitor in Sydney who practised in the field of immigration law. This too proved unsuccessful as, following some correspondence, this lawyer advised, in early 2013, that he could not assist the applicant.

28    During this period the applicant was able to employ a migration agent to apply on his behalf for a protection visa. He asked this agent to also assist him with his judicial review application but she declined.

29    He again attempted to obtain private legal advice in late August 2013. This too was unsuccessful. The lawyer he approached advised him in September 2013 that “even at this early stage” the fees would be as much as $20,000 or even more.

Prejudice

30    The Minister properly concedes that he would not suffer any prejudice as a result of the grant of an extension of time. However, I accept that a mere absence of prejudice is insufficient of itself to justify extending time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349, cited with apparent approval in SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 at [67].

31    A refusal to grant an extension of time would, by contrast, visit significant prejudice upon the applicant. He would be denied a judicial review of the decision of the Tribunal and in turn would be deported from Australia where he and his family live.

32    The applicant has experience as a refrigeration and air-conditioning mechanic and sheet metal worker. The field of administrative law is complex, some might say extremely complex. It is understandable, given what was at stake, that the applicant would want professional legal advice. He was also confronted with potentially having to fight on two fronts. He chose, it is true, to apply for a protection visa but I do not think he ought be criticised for this. The result of his application for judicial review is still pending.

33    It will ordinarily be of assistance to the Court in the administration of justice that grounds of review are the product of professional legal input. This Court, in its migration jurisdiction, is often confronted with applications which have been poorly prepared and proceed from a fundamental misunderstanding, indeed even complete ignorance, of relevant law and principles.

34    Decisions in other cases involving applications for an extension of time are, in my opinion, of limited value turning as they do on the particular facts in each case. For example, unlike other cases where an extension has been refused because of lack of merit in the substantive proceeding, in this case the Minister, in effect, acknowledges for the purposes of this application that the applicant’s substantive proceeding is not without merit.

35    I am satisfied that, in very difficult circumstances, the applicant did all that he could to obtain the necessary legal advice to advance a meaningful application.

36    In all the circumstances I am satisfied that it is in the interests of justice to make an order extending the time for filing an application for judicial review to 23 July 2014 which is the date the draft notice of appeal was lodged.

37    I will order that the draft notice of appeal dated 22 July 2014 stand as the application for judicial review.

Associate:

Dated:    12 December 2014