Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256

FEDERAL COURT OF AUSTRALIA

Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256

MIGRATION – Bridging Visa – application – time for deciding application – whether deemed grant of visa – whether relief claimed futile. Migration Act 1958 (Cth) ss 45(1), 46(1), 75(1), 116(1)(a) Migration Regulations 1994 reg 2.01, 2.07(1) Minister for Immigration and Multicultural Affairs v Zhang Jia Qing (1999) 84 FCR 258, cited Cabal v Minister for Immigration and Multicultural Affairs [1999] FCA 11, cited PAUL MARTIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 72 OF 1999

FRENCH J 19 AUGUST 1999 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 72 OF 1999

BETWEEN: PAUL MARTIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FRENCH J.

DATE OF ORDER: 19 AUGUST 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The Applicant is to 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.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 72 OF 1999

BETWEEN: PAUL MARTIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FRENCH

DATE: 19 AUGUST 1999

PLACE: PERTH

EX TEMPORE REASONS FOR JUDGMENT 1 The Applicant in this case, Paul Martin, came to Australia at the beginning of 1993 under a visa which was a Working Holiday Subclass 417 visa. Under that visa he had permission to stay in Australia until 21 January 1994. Mr Martin is a British citizen. He was born in Dublin in 1963. 2 Upon the expiry of his working holiday visa on 21 January 1994, Mr Martin did not, as required by law, leave Australia but remained unlawfully in Australia. His presence was not discovered until 30 September 1996. At that time he was the subject of a criminal investigation by the Western Australian police and in the course of an interview with a detective from the Sexual Assault Squad, he disclosed that he was in this country without a visa. Contact was then made by police with the Immigration Department and he was taken into immigration detention. 3 On 2 October 1996 he was charged with an offence of sexual penetration without consent and pending the trial of that charge a Criminal Justice Stay Certificate was signed by the Western Australia Director of Public Prosecutions and a Criminal Justice Stay Visa was issued so that he could remain in Australia and face trial. Eventually he was acquitted of that charge. That was on 20 August 1998, and as a result of that acquittal the Criminal Justice Stay Certificate was cancelled. He left Australia under supervised departure on 31 August. He went back to the United Kingdom and while in the United Kingdom he changed his name by deed poll from Paul McDonald to Paul Martin. 4 During his stay in Australia, Mr Martin had formed a relationship and had a young son in Western Australia. He wanted to come back to Australia and evidently decided that he was not going to be granted a visa to return in the short term. He therefore signed up as a crew member of a yacht which came to Australia and eventually ran aground on a reef off Cairns on 4 April 1999. He was interviewed, of course, under the new name of Martin and was granted a Border Visa Class 773 which permitted him to remain in Australia for thirty days. The departmental officers who interviewed him at that time of course had no knowledge of his prior immigration history. 5 Mr Martin embarked onto a Qantas flight and came to Perth. There he was met by immigration officers and apprehended on 8 April and his border visa was cancelled. He sought review of that cancellation decision by the Immigration Review Tribunal. The Tribunal affirmed the decision to cancel that visa. The basis of the cancellation had been changed circumstances under s 116(1)(a) of the Migration Act 1958 (Cth), the changed circumstances referring back to false statements under which the border visa was obtained. However, by virtue of the Full Court decision in Minister for Immigration and Multicultural Affairs v Zhang Jia Qing (1999)84 FCR 258, that subsection of the Act could not be relied upon to cancel a visa in those circumstances, so a consent order was made in the Federal Court setting aside the Immigration Review Tribunal's decision and, in effect, revoking the cancellation of the border visa. Mr Martin then stood in the position of somebody whose border visa had not been cancelled. He subsequently applied for a Bridging Visa E on 22 April. That was refused and that refusal began the sequence of events that leads to this particular application. 6 At this stage, Mr Martin was back in immigration detention and on 31 May he completed a further application for a Bridging Visa E. There is affidavit evidence before the Court which indicates that this application was collected on 1 June from the detention centre by Nigel Smith, who is an officer of the Department of Immigration and Multicultural Affairs. He is currently the officer in charge of the Cancellation and Detention Section of the Department. At 1 June, he was the Business Manager, Detention. One of his duties as Business Manager, Detention, was to regularly attend the Immigration Detention Centre at Perth Airport. That Centre is evidently run on a day-to-day basis by Australasian Correctional Management. No officer of the Department is based at the Centre. 7 Mr Smith said that when he collected the application he spoke to Mr Martin and noted on the application form, in his presence, that it had been left for collection and that he had collected it on 1 June. He took the application and returned to the Department's office at Northbridge. After attending to other business he typed an e-mail message to officers of the Department, Lisa Whinney and Michael Cain, advising them of the application. Michael Cain was the officer in charge of the Compliance Section of the Department who is and then was a detention review officer with the authority to decide the Bridging Visa application. Lisa Whinney was a compliance officer who had responsibility for Mr Martin's case at that time, but she was not a detention review officer. Mr Smith is not a detention review officer and was not authorised to make a decision in respect of the application. 8 The e-mail message which he sent to Ms Whinney and Mr Cain on 1 June indicates that it was sent at 1809 hours, which reflects the use of Eastern Standard Time on the Department's e-mail system. That means that it would have been sent at 9 minutes past 4 on 1 June. Shortly after sending the e-mail he printed a hard copy of it. He attached it to the Bridging Visa application, together with photographs of Mr Martin and then he went to that part of the office where the Compliance Section is located, to deliver the documents. Neither Ms Whinney nor Mr Cain were at their desks. Mr Smith left the Bridging Visa application and the attached documents in a prominent position on Ms Whinney's desk. He believes he might also have placed a "post-it" note on the documents requesting her to pass them on to Michael Cain. He had no other communication with Mr Cain or Ms Whinney on 1 June and he did not advise any other person of the applicant's Bridging Visa application on that date. 9 The tracking of the application and how it was dealt with was then taken up in the affidavit of Ms Whinney, who confirmed that in June 1999 she was attached to the Compliance Section of the Department. She had not been appointed as a detention review officer and was not authorised to make decisions in respect of applications of the kind made by Mr Martin. She did not recall getting the e-mail message on 1 June and her flextime attendance record indicates that she left work at twenty past four on that day. She recalled that she discussed the application for a Bridging Visa with Nigel Smith on the morning of 2 June and that she delivered the application to Mr Cain on that date. 10 The narrative then shifts to Mr Cain. Mr Cain is a departmental officer who, under an instrument of delegation and authorisation dated 1 March, has been appointed as a Detention Review Officer for the State of Western Australia for the purposes of reg 4.32(2) of the Migration Regulations. He is authorised to make decisions on applications for Bridging Visas by persons in detention. It is a requirement of the law, of which he was aware at all times, that a decision on an application for a Bridging Visa by an eligible non-citizen in immigration detention must be made within two working days. He made the decision to refuse Mr Martin's application for a Bridging Visa E on 4 June. He said that to the best of his knowledge, information and belief he was first notified of the application when he received it on 2 June. He recorded the date of its receipt on a printed copy of an e-mail message from Nigel Smith and he exhibited a copy of that e-mail message to his affidavit which does bear the written endorsement "Received by me 2/6/99" and what appears to be his initial. He could not recall the circumstances in which the application was first brought to his attention, nor could he remember when he first read the e-mail message sent to him by Nigel Smith on 1 June. However, his flextime record for 1 June shows he left work at 4pm on that day. He has, for work purposes, been on Christmas Island since 15 August and he does not presently have access to all the relevant departmental or personal records which might assist his recollection. His affidavit was faxed and it was the faxed copy of the affidavit that was put before the Court. 11 Mr Martin applied to the Migration Review Tribunal to review Mr Cain's decision refusing the grant of the Bridging Visa E and on 24 June the Tribunal made a decision affirming Mr Cain's decision. On 23 July, Mr Martin filed an application in this Court seeking to review the decision of the Tribunal. 12 The application which, on the face of it, appears to have been drawn up with some legal assistance, sets out six points briefly stated: "1. Application is made to review the decision of the Immigration review Tribunal affirming the decision not to grant the applicant a Bridging Visa Class 050. 2. The applicant was notified of the decision on or about 06.07.99. 3. The Applicant is aggrieved by the decision in that he may be forced to remain in Immigration detention, not being able to see his child and settle business affairs. 4. The Ground for the application is that the applicant is deemed to have obtained a lawful by visa (sic) pursuant to item 1305 of schedule 1 to the Regulations in that the application for visa was not refused within the stipulated 2 working days subsequent to submission. 5. The application for grant of visa was made by the applicant on the 1st June 1999 and refused by DMIA on 4th June 1999. 6. It is respectfully submitted that the visa is effectively granted on 3rd June 1999 pursuant to the relevant law, and the refusal by DIMA on 4th June 1999 is therefore invalid." 13 Mr Martin claims an order setting aside the decision and such order as the Court deems fit. The point that he seeks to make is reasonably clear on the face of the application; that is, that there is a deeming provision in the Act which provides that if a visa of this class is not granted within two days of the application, then it is taken to be granted and he says that is the situation here. 14 I will turn to the statutory framework which not untypically is fairly tortuous. This is helpfully set out in the submissions prepared by the respondent and I refer to the framework as described in those submissions. 15 It begins with subs 31(1) of the Migration Act which provides for prescribed classes of visas. Regulation 2.01 of the Migration Regulations provides: "For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1;…" In Schedule 1 of the Migration Regulations is found Item 1305 which refers to a Bridging E (Class WE) visa. There are provisions dealing with applications for visas and the requirements for making a valid visa application and these are to be found in ss 45 and 46 of the Migration Act which provide, relevantly in subs 45(1): "45(1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. (2) Without limiting subsection (1), the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa of a specified class…" Subsection 46(1) says: "46(1) Subject to subsection (2), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3);…" 16 Subregulation 2.07(1) of the Migration Regulations, made pursuant to s 45(2), concerns the making of visa application. It requires an approved form to be completed by an applicant. There is a fee payable on the application and other matters relating to the application which are set out in the relevant part of Schedule 1. In relation to a Bridging E Visa, Item 1305 in Schedule 1 provides as one of the other matters relating to an application for that class of visa that: "(c) If applicant is in immigration detention, an officer appointed under subregulation 4.32(2) as a detention review officer for the State or Territory in which the applicant is detained has been informed of the application." Consequently, the requirement that a detention review officer appointed as such under the Act be informed of the application for a Bridging E Visa is part of the specified manner in which such an application must be made and, pursuant to s 46, it is a condition of the validity of such an application. In other words, if everything has been done correctly then the application only becomes valid at the point at which it is brought to the attention of a detention review officer. 17 As Ryan J observed in Cabal v Minister for Immigration and Multicultural Affairs [1999] FCA 11, at par 34: "…an applicant may be unaware of the identity of a designated review officer and should not be taken thereby to be deprived of the ability to inform the detention review officer of his or her application." In those circumstances, as his Honour said, an applicant can make an application at an office of immigration and rely on the presumption that it will come to the knowledge of the detention review officer for the relevant State or Territory in the ordinary course of administration of the department. As his Honour went on to say: "However, that "informing" of the detention review officer will rarely be simultaneous with, or closely attendant on, the making of the application at an office of Immigration." In other words, there will almost always be some administrative lag between the lodgment of the application and it coming to the attention of a detention review officer. 18 Section 75(1) of the Migration Act deals with applications for Bridging Visas by eligible non-citizens who are in immigration detention and it is not in dispute that it applies to this case. It provides that: "75(1) If: (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and (b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa; the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period." There is therefore a deemed grant of a bridging visa and in that event the period of the grant is taken to be five days under cl 050.516 of Schedule 2 to the Migration Regulations: "050.516 In the case of a visa that is taken to have been granted by operation of section 75 of the Act (which deals with applications for bridging visas which the Minister does not decide within a short period) – visa coming into effect on grant permitting the applicant to remain in Australia for: (a) 5 working days from date of grant; or (b) if within 5 working days of grant the holder shows an officer a ticket for departure from Australia – 14 days from date of grant." 19 That in outline is the statutory framework applicable to this case. Now there are, it seems to me, two questions. The first question is whether or not a decision on the application for the bridging visa was made within two days of a detention review officer having been informed of the application. I accept that, as Mr Martin has pointed out, Mr Cain, the detention review officer, says he cannot now recall the circumstances in which the application was first brought to his attention or when he first read the e-mail message sent to him by Nigel Smith on 1 June. That is perhaps not surprising given the passage of time and, no doubt, the volume of matters with which he has to deal and his absence from the jurisdiction at the present time, in terms of accessing records. However, when the sequence of events is considered, particularly the timing of the e-mail which would have brought the application to his attention and the apparent time of his departure from work that day, according to his flextime records, it seems probable that he did not in fact receive or read the e-mail from Mr Smith on 1 June and he would not have received it from Ms Whinney, who had not evidently seen it either on that day. 20 The flextime record shows his time out was 4 o'clock on the day in question and that the times in and out on those records are generally rounded off at fifteen minute intervals. Had he still been in the office at 9 minutes past 4 and had immediately received and read the e-mail at that time, one would expect the flextime record to have shown a different time of departure. That fact can be taken into account along with the nature of the obligation imposed upon a detention review officer and the quite significant consequences of a failure to make a decision within two days, not least of which is that a person who is in immigration detention and who is deemed to be granted a bridging visa by operation of s 75 will appear to be entitled to release from immigration detention at that time. Although I have not explored that in full, it seems to me that the importance of the timeframe which is established for the making of these decisions would be present and uppermost to the mind of an officer of the Department with the experience and service of Mr Cain. He had been an officer for over twenty nine years and had been the officer in charge of the Compliance Section of the Department in Perth for over three years. On the balance of probability he did not, in fact, become aware of the application until 2 June and on that basis made the decision within the requisite two days. It therefore follows that there was no deemed grant of a Bridging Visa E. 21 If my conclusion be wrong and a Bridging Visa E was granted, then the visa has long expired and there is no useful purpose to be achieved by making any order in relation to the decision of the Tribunal or the purported decision to refuse the grant of a bridging visa made by Mr Cain. That is only a hypothetical question, of course, because I have found on the balance of probability that, in fact, he made the decision within the two days. Even if he had not, I would consider that the relief which is sought would at this stage be futile. It might be that if there were an action for unlawful detention based upon the continuance of the immigration detention after the deemed grant of a visa, then that issue might become of some point in those kinds of proceedings. But these are not those kinds of proceedings and, in any event, the hypothesis on which that would be based is falsified by my primary finding. 22 For these reasons, I must dismiss the application. It goes without saying, as Mr Martin now accepts, that his misfortunes have to some extent or to a great degree been brought upon by his own conduct in contravening the immigration laws in the first place. Nevertheless, one cannot help but feel some sympathy for his position in relation to his young son in this State and it may be that if he now sets about complying with the laws, even if that means having to observe a period of restriction, he will be able to come back in due course as a lawful visitor for the purpose of maintaining that contact. My function so far as this application is concerned is limited to the issues which I have already discussed and so the application will be dismissed. I will make the usual order that the applicant pay the respondent's costs of the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.