Lewai v Davidson [2001] FCA 1848

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a Fijian who entered Australia on 9 April 1994 on a visitor's visa. He has remained in Australia ever since. In the intervening years he has made a number of applications for visas of various kinds and from time to time has been granted bridging visas for various periods. He is presently in detention under the Migration Act 1958 ("the Act"). On the last occasion on which he lodged an application for a substantive visa, the Migration Review Tribunal ("the Tribunal") rejected that application because the application for review was lodged out of time. 2 The applicant was detained on 10 July 2001, when he became an unlawful non-citizen following the expiration of a bridging visa that had earlier been granted to him. On 25 July 2001 the applicant applied for a Bridging E visa. That application was refused by the Minister for Immigration and Multicultural Affairs ("the Minister") on 27 July 2001. 3 On 8 August 2001 the Migration Review Tribunal affirmed the decision of the Minister's delegate and on 17 August 2001 the applicant lodged with this Court an application for an order of review of the decision of the Tribunal. The grounds of the application were stated as "refer to submission". That is apparently intended to be a reference to a document that was lodged by the applicant with the Court on 17 August 2001. That document did not refer to any of the grounds of review referred to in s 476 of the Migration Act. No application has been made to amend the application although grounds that may fall within s 476(1) had been advanced in circumstances to which I shall refer shortly. 4 The proceeding came before the Court for directions on 30 August 2001 when the Minister, the respondent to the proceeding, indicated that there was a possibility that the applicant might be removed from Australia before substantive hearing of the proceeding, which was fixed for 22 November 2001. Hely J gave directions on 6 September 2001 for hearing of an interlocutory application for an injunction restraining the Minister from removing the applicant from Australia pending a final hearing. 5 When the matter came on for hearing on 7 September 2001, counsel for applicant informed Hely J that the applicant sought to remain in Australia until a determination by the Tribunal of an application for review of a decision made by a delegate of the Minister to refuse protection visas to the applicant's two children. The grounds on which interlocutory relief was sought included grounds that involved questions concerning the power of officers of the Department of Immigration and Multicultural Affairs ("the Department") to remove the applicant from Australia pursuant to s 198 of the Migration Act. 6 On 11 September 2001, a fresh proceeding was commenced by the applicant against Grant Davidson and Wendy Green, officers of the Department, seeking orders prohibiting the respondents from removing the applicant from Australia under s 198 of the Migration Act. Earlier today Hely J published his reasons for refusing interlocutory relief in both proceedings. Without further argument from the applicant, his Honour then dismissed both of the proceedings on the basis that, having regard to the conclusions reached by his Honour in refusing interlocutory relief, there was no basis upon which his Honour would grant final relief. 7 The applicant has applied to me as duty Judge for interlocutory relief pending a proposed appeal from the orders of Hely J dismissing both proceedings. No notice of appeal has yet been filed. However, counsel for the applicant has outlined orally, in the course of the application made this afternoon, the grounds upon which it is said Hely J erred in dismissing both applications. 8 There are two grounds upon which the applicant contends that Hely J erred in dismissing the application brought against Mr Davidson and Ms Green, under s 39B of the Judiciary Act 1903. There is a further ground upon which the applicant contends that his Honour erred in dismissing the application for an order of review of the decision of the Tribunal. I shall deal first with the grounds advanced in relation to proceeding N1301 of 2001 (the application for orders under s 39B of the Judiciary Act). 9 The grounds relied by the applicant turn on the effect of s 198 of the Act, pursuant to which the respondents seek to exercise what is said by them to be a duty to remove the applicant from Australia. Sections 198(5) and (6) relevantly provide as follows: (5) An officer must remove as soon as reasonably practicable an unlawful non citizen if the non citizen: (a) is a detainee; and (b) was entitled to apply for a visa in accordance with section 195 but did not do so. (6) An officer must remove as soon as reasonably practicable an unlawful non citizen if: (a) the non citizen is a detainee; and (b) the non citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone." 10 Section 195 provides as follows: "(1) A detainee may apply for a visa: