FEDERAL COURT OF AUSTRALIA Applicant VKAC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1418 APPLICANT VKAC of 2002 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 761 of 2002 RYAN J 19 NOVEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 761 of 2002 BETWEEN: APPLICANT VKAC of 2002 Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE: 19 NOVEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is before the Court an application for orders in the nature of prerogative relief against the respondent Minister ("the Minister") arising from the detention of the applicant pursuant to s 189(1) of the Migration Act 1958 ("the Act"). The applicant also seeks interlocutory orders in the following terms; "1. An order that the Respondent personally, and by his servants and agents, be restrained pending the hearing and determination of this proceeding from detaining the Applicant. 2. An order that the Respondent personally, and by his servants and agents, be restrained pending the hearing and determination of this proceeding from treating the Applicant as a non-citizen. 3. Such orders and directions as may be required to facilitate the hearing this application." 2 The applicant was born in what was formerly known as Burma, now the Union of Myanmar ("Myanmar") and came to Australia at the age of 15 in June 1971. She married an Australian citizen in 1973 and was divorced in 1978. She has one son who was born in 1979. From May 1985 to June 1986 the applicant travelled outside Australia, mainly in Europe. Before undertaking that travel she had applied for a Burmese passport but was advised that she was deemed to have renounced her Burmese citizenship three months after leaving Burma in 1971. Accordingly, she procured a Certificate of Identity from the Australian Department of Immigration and Multicultural Affairs as it was then called. After her return to Australia, the applicant engaged in various criminal activities connected with her involvement in the use of illegal drugs and, on 28 April 2000, she was sentenced to imprisonment for varying terms on counts related to the possession and supply of amphetamines, possession of heroin and fraud. The total maximum period of imprisonment was later, on 28 February 2001, reduced to five years on appeal to the Supreme Court of Western Australia. With remissions for good behaviour, the applicant has now been released, either on parol or unconditionally, from custody in Western Australia. 3 However, the applicant has been in migration detention since 4 February 2002. The description of that detention, as set out in par 22 of an affidavit sworn 5 November 2002, is in these terms; "I have been in migration detention since 4 February 2002. It is a small facility, and I am usually the only female. The pressure of being detained in these circumstances is unbearable. I have complained to the Commonwealth Ombudsman to no avail. I am being openly housed among male detainees and there is no escape from the pressure of being detained as the only female in a small facility. I have an extended family of more than eighty persons in Australia, including a son and my defacto partner of four years, with whom I can reside and who would give any undertakings the Court may require to ensure that, if released, I attend at the hearing of this matter." 4 The applicant's detention resulted from a decision made by the Minister personally on 21 January 2002 to cancel her visa under s 501(2) of the Act. That sub-section provides; "The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test." 5 The applicant sought by application lodged on 8 February 2002 to challenge before the Administrative Appeals Tribunal ("the AAT") the Minister's cancellation of her visa but the AAT decided on 12 February 2002 that it had no jurisdiction to entertain the application. Thereupon, the applicant, on 17 April 2002, filed an application in this Court for review of the Minister's decision to cancel her visa but, on being advised that it had been brought out of time, discontinued that application on 24 May 2002 with the Minister's consent. 6 On 14 May 2002, the applicant applied to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") for a protection visa but that application was apparently regarded as defective because she had not paid the requisite application fee of $30. That defect was remedied on 9 July 2002 and the Department has, since that date, regarded her as having on foot a valid application for a protection visa. However, no decision has yet been made on that application. 7 Evidence has been filed on behalf of the applicant, including an affidavit by Fr. Brennan, the Assistant Director of the UNIYAA Jesuit Social Justice Centre who has been in communication with the Minister and the Myanmar Embassy in Australia. The effect of that evidence is that the applicant is no longer regarded as a citizen of Myanmar and has no right to return to that country. The steps taken by the Department and its attitude to the applicant's release from detention have been described in these paragraphs from two affidavits sworn, one on 15 November 2002 and the other on 18 November 2002, by Mr Gotovac, a departmental officer; "7. The applicant has not asked the Minister, in writing, to be removed from Australia. In the absence of such a request DIMIA cannot remove the applicant from Australia until her pending visa application is finally determined. 8. On 4 February 2002 and 14 February 2002 correspondence was sent to the Embassy of Myanmar by DIMIA requesting an application form for a travel document. On 18 February 2002 an application form for a travel document was provided to DIMIA by the Embassy of Myanmar. The application form was translated and provided to the applicant but I am informed by Mr Adam Logie of DIMIA, Compliance Section in Perth and believe that the applicant refused to complete the application form for the travel document and has informed Mr Logie on numerous occasions that she has been instructed by her legal counsel not to complete any documentation to assist in her removal. 9. Issues relating to the removal of the applicant will be addressed by DIMIA if and when the statutory obligation to remove under section 198 of the Migration Act 1958 arises." "2. Steps for removal of the Applicant are at an early stage and will not be progressed unless and until her protection visa application is refused by a delegate and finally determined. At that time DIMIA will actively pursue the Applicant's removal. 3. When an individual in detention is available for removal, DIMIA will actively pursue the individual's removal at an appropriate time and would seek to establish a cooperative relationship with representatives of the individual's country of citizenship. I have no reason to believe that this would not be possible in the applicant's case. 4. DIMIA concentrate on the return of unlawful non-citizens to their country of citizenship. My experience is that whilst removal arrangements for an individual can sometimes be protracted, that fact alone is not an indicator that they will not be successful and success may be achieved quickly after lengthy discussions or numerous contacts with the representatives of the individual's country of origin. 5. However if this were not possible, DIMIA would be likely to pursue possible entry rights to a third country for the unlawful non-citizen and would work with the individual in detention who is available for removal, to identify other feasible destination countries. In my experience in dealing with situations similar to that claimed by the Applicant, namely that she is stateless, this may involve discussions with a variety of organisations. 6. Engaging with other partners including the United Nations High Commissioner for Refugees (UNHCR) to seek its assistance in the return of failed asylum seekers could be undertaken. The International Organisation for Migration is also able to assist with elements of return arrangements for some detainees. This approach has been successful in a number of cases, but always requires the active cooperation of the detainee. 7. These are possibilities that can be, but have not yet been explored by DIMIA should any difficulties be encountered in removing the Applicant from Australia and returning her to her country of origin." 8 On behalf of the applicant it as been contended, first, that there is a serious question to be tried as to whether her current application for review of the Minister's decision to cancel her visa is out of time. That question was said to be raised by s 501G(1) of the Act which provides; "(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and …" 9 The letter dated 31 January 2002 informing the applicant of the Minister's decision to cancel her existing visa had attached to it a Departmental Minute of some ten pages, with annexures, indicating matters which the Department considered should be taken into account by the Minister in deciding whether or not to cancel the visa. At the end of that document under the hearing "DECISION" was the following recital followed by the Minister's signature; "I have considered all the relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and [the Applicant]'s comments, and have decided that: (d) I reasonably suspect that [the Applicant] does not pass the character test and [the Applicant] has not satisfied me that she passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa." 10 It was submitted on behalf of the applicant that the requirement imposed by s 501G(1)(e) of the Act was a mandatory one which was not satisfied by the provision, as occurred in this case, of a signed departmental briefing paper. Reference was made to Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281, where each member of a Full Court of this Court held that the provision to an applicant of a departmental "issues document" signed by the Minister did not constitute compliance with s 501G(1)(e) of the Act. However, each of their Honours was also of the opinion that such non-compliance did not afford a ground of review by this Court within the meaning of s 476(1)(a) of the Act which formerly provided; "(1) Subject to subs(2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; ... ." 11 Branson J observed, at [62]; "….. I conclude that the context in which s501G(1)(e) is found indicates, for the reasons discussed in [60] above, that the giving of the s501G(1)(e) notice is not a procedure required by the Act to be observed in connection with the making of the Minister's decision. It is a procedure required by the Act to be observed in connection with the decision once made." 12 To similar effect, Allsop J said, at [91]; "For the non-observance of a procedure under the Act to be a ground for an application for review under para 476(1)(a) it must be 'in connection with the making of the decision'. Clearly, s 501G differentiates between the making of a decision and the sending of a notice containing the reasons for it. The obligation to do the latter only arises once the decision has been made. For a decision to be made and for it to be other than arbitrary and capricious there must, at the time of the decision, be reasons. In that sense, though the decision, as an administrative act, is capable of isolation from the reasons therefor, it cannot be reached rationally without a reason or some reasons for it. Nevertheless, if those reasons, having been committed to writing (whether at or about the time of making the decision or later), are later sent to the subject of the decision, the physical act of sending them and the legal obligation to undertake that physical act are distinct from, and unconnected with, the making of the decision." (original emphasis) 13 It follows, I consider, from the conclusion reached by their Honours that the provision of a document in purported compliance with s 501G which did not set out the Minister's reasons for cancelling a visa does not entail that there is no decision of which the applicant has been notified so that the time stipulated by s 477(1) of the Act does not commence to run. Accordingly, if non-compliance with s 501G were the only basis for the application to this Court I would be persuaded to uphold the Minister's objection to competency and to dismiss the application forthwith. 14 However, the applicant claims to have raised as a serious question to be tried the issue discussed by Merkel J in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 and by Mansfield J in Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369. In the first of those cases, Merkel J construed s 196(1)(a) and s 198 of the Act as authorising detention of an unlawful non-citizen only for so long as the Minister is taking all reasonable steps to secure his or her removal from Australia as soon as it is reasonably practicable and the removal of the person from Australia is reasonably practicable in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future. In Al Masri the applicant had requested that he be released from immigration detention and returned to the Ghaza Strip. The evidence revealed, however, that the Department's efforts from January 2002 to 25 July 2002 to achieve that return by transit through any of Egypt, Syria, Israel or Jordan had proved unavailing. Accordingly, his Honour concluded, at [53]; "In all the circumstances I am prepared to more readily and confidently infer that at the present time there is no real prospect or likelihood of the Minister being able to remove the applicant from Australia in the reasonably foreseeable future. Accordingly, I have concluded that the Minister has failed to discharge the burden imposed upon him to prove that the continued detention of the applicant is lawful. Consequently, the applicant's continued detention is unlawful." 15 After taking the view that the fact that the applicant's detention was unlawful precluded any discretion to refuse an order for release, his Honour made the order on terms that, within 24 hours of his release, the applicant should notify the Minister's solicitors of his address and contact details and any subsequent changes thereto. It was further ordered that, in the event of being notified of arrangements for his removal from Australia in accordance with s 198 of the Act, the applicant should take all reasonable steps in his power to comply with those arrangements to facilitate his removal. 16 In Al Khafaji, the applicant had applied for a protection visa and, upon its being refused, sought a review of the refusal by the Refugee Review Tribunal ("the Tribunal"). On 30 November 2000, the Tribunal affirmed the decision to refuse him a protection visa. Upon being notified of that decision, the applicant requested to be removed from Australia and returned to Syria. He had, at all relevant times, been in detention at the Woomera, and later the Curtin, Immigration Reception and Processing Centre. The applicant made numerous efforts through the Commonwealth and the Western Australian Ombudsman and the Human Rights and Equal Opportunity Commission to obtain his removal from Australia or his release from detention. Mansfield J, at [21] made these findings of fact; "I find that the removal of the applicant from Australia is not "reasonably practicable", because there is not at present any real prospect of the applicant being removed from Australia in the reasonably foreseeable future. I have had regard to the period of the applicant's detention since 5 January 2000, or perhaps more accurately since 9 February 2001 when he requested in writing that he be returned to Syria, including the periods during which he has had unresolved requests to the respondent under s417 of the Act. I have had regard to his communications with the respondent and DIMIA officers. I have had regard to the affidavits filed on behalf of the respondent, to which I have referred above. In my view there is nothing to indicate that there is any real prospect of the applicant being returned to Syria in the reasonably foreseeable future, and nothing to indicate that he can successfully be removed to another country in any measurable timeframe. I accept the director's evidence that "with persistence" there is some prospect of the applicant being successfully removed from Australia to a third country, possibly including Syria, after "protracted" steps are taken, but the period of time over which those steps may be taken - assuming, which is by no means clear, that they are ultimately successful - is indefinite and is certainly not of short compass. There is no material to suggest the applicant's removal from Australia will probably or might necessarily be effected within a time span of (say) several months. That is a finding which senior counsel for the respondent contested only in a relatively faint way." 17 In the light of those findings, it was considered, applying the reasoning of Merkel J in Al Masri, that an order should be made for the release of the applicant from detention forthwith subject to conditions similar to those imposed in Al Masri together with a requirement for daily reporting, the completion on request of any application for travel documents as might reasonably be considered necessary to facilitate the applicant's removal from Australia and a requirement to attend and remain at any hearing in this Court or the High Court of which he should be given reasonable notice in writing by the Australian Government Solicitor. 18 The position of the present applicant differs in several respects from that of each of the applicants in Al Masri and Al Khafaji. The most important is that she has pending a valid application for a protection visa. Accordingly, her detention can be seen as mandated by s 196(1)(c) of the Act which, I consider, consistently with the approach to construction adopted in Al Masri and Al Khafaji, requires the detention of an unlawful non-citizen until his or her application for a visa has been determined and, if refused, until all avenues of review of, or appeal against, that refusal have been exhausted. 19 Understandably, the Minister cannot be expected to resume negotiations for the reception of the applicant by Myanmar while there is awaiting his determination of an application for a protection visa predicated on an assertion that the applicant has a well-founded fear of persecution, presumably if she were returned to Myanmar. A similar need to resolve definitely the applicant's claim to refugee status impinges on possible negotiations for the removal of the applicant to some third country and on the representations which Mr Gotovac foreshadowed as open to be made to the UNHCR and the International Organisation for Migration. 20 Other, less significant, points of difference between this case and Al Masri and Al Khafaji are that the applicants in those cases positively requested that they be removed from Australia. The present applicant has made no such request and asserts that her family ties to this country are so strong and long-lasting that her removal would be inhumane. Accordingly, unlike Mr Al Masri and Mr Al Khafaji, she has not expressed any willingness to complete documents which would facilitate her removal but, as Mr Gotovac has deposed, she has positively refused to co-operate in the preparation of any documents of that kind. 21 For these reasons, as I indicated at the conclusion of yesterday's hearing, the application for interlocutory relief must fail. However, I am prepared to adjourn the application to allow the applicant, if necessary, to adduce further evidence of events which follow the determination of her application for a protection visa. Alternatively, it will remain open to the applicant to amend her claim for relief to include an order for the timely resolution of the application for a protection visa. Counsel for the applicant should formulate, in consultation with the Minister's legal advisers, minutes of orders reflecting the course preferred by the applicant in the light of these reasons. The matter may be listed again at short notice at a time mutually convenient to Counsel to enable the necessary interlocutory orders to be finalised. Those orders shall include an order that the costs of each party of yesterday's hearing be reserved. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 19 November 2002 Counsel for the Applicant: Mr T Hurley Solicitor for the Applicant: Mark Andrews & Associates Counsel for the Respondent: Mr A L Cavanough QC with Mr C Horan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 November 2002 Date of Judgment: 19 November 2002