FEDERAL COURT OF AUSTRALIA VKAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 483 MIGRATION – detention - mandatory detention of an unlawful non-citizen – application by non-citizen to review Minister's decision to cancel her visa – application for removal from Australia – whether no real likelihood or prospect of removal in the reasonably foreseeable future – whether interlocutory orders should be granted for release from detention – whether application for review of respondent's decision precludes release when application also made for removal Migration Act 1958 (Cth) ss 189, 196, 196(1)(a), 196(1)(c), 196(3), 198, 198(1), 474, 501, 501G, 501G(1)(e), 501(2), 501(6), 501(7) Judiciary Act 1903 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) s 23 Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 196 ALR 111 approved Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281 cited Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009 cited Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369 cited Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 applied VKAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V761 of 2002 RD NICHOLSON J 19 MAY 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY V761 OF 2002 BETWEEN: VKAC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 19 MAY 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondent, by his servants or agents, be restrained from detaining the applicant pending the hearing and determination of this action. 2. Upon her release, the applicant will reside in suburban Perth, Western Australia at the address made known to the Court by her counsel. 3. In the event of any proposed change of her address and contact details, she will give 48 hours prior notice in writing to her solicitors, S C Nigam, 17th Floor, International House, 26 St George's Terrace, Perth, Western Australia 6000 and to Ms Teresa Ling at the Australian Government Solicitor, Level 19, 2 The Esplanade, Perth, Western Australia, 6000 of her intended address and contact details. 4. The applicant will report in person to the office of the Department of Immigration and Multicultural and Indigenous Affairs at 411 Wellington Street, Perth in the State of Western Australia on Tuesdays of each week during ordinary working hours excluding only public holidays to any officer or such officers as may be designated by the respondent or his solicitors. 5. The applicant will report by telephone during working hours on Mondays, Wednesdays, Thursdays and Fridays to James Petcov an officer of the respondent on telephone 9415 9164 or to such other named officer or officers at the Wellington Street office of the Department of Immigration and Multicultural and Indigenous Affairs as may be required excluding only public holidays. 6. The applicant will not leave the Perth metropolitan area at any time without first obtaining the written consent of an officer of the respondent. 7. There be liberty to either party to apply to revoke these orders or vary any of the terms of these orders. 8. Costs of the motion be reserved. 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 V761 OF 2002 BETWEEN: VKAC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 19 MAY 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 On behalf of the applicant a notice of motion is brought seeking essentially that the respondent be restrained from detaining the applicant pending the hearing and determination of her application. That application was directed towards a review of the decision of the respondent made on 22 January 2002 under s 501(2) of the Migration Act 1958 (Cth) ('the Act') to cancel the applicant's visa. 2 A motion to the same effect was brought before Ryan J on 18 November 2002. In reasons published the following day he refused the application for interlocutory relief and adjourned the application to enable the applicant, if necessary, to adduce further evidence of events which might follow the determination of her application for a protection visa. His Honour said that alternatively it would remain open to her to amend her claim for relief to include an order for the timely resolution of the application for a protection visa. He stated that the matter could be listed again to enable the necessary interlocutory orders to be finalised and that those should include an order that the costs of each party be reserved. 3 On 23 April 2003 the action was transferred to the Western Australian District Registry. When the present notice of motion was brought on for hearing counsel for the applicant, after consideration, did not proceed with the notice of motion filed on 24 April 2003 or a minute of proposed amended notice of motion filed on 1 May 2003. Rather, by leave he amended the notice of motion before Ryan J so that it accorded with the grounds stated in the last mentioned minute. 4 The application before Ryan J was dated 1 November 2002. On 30 April 2003 an amended application was filed in the Western Australian District Registry. On the hearing of the notice of motion the Court had before it a proposed further amended application filed on 1 May 2003. Leave was given to substitute the further amended application. The grounds for which leave was given for introduction into the notice of motion accord with the nine grounds listed under the claim for interlocutory relief in the further amended application. In the course of argument however, counsel for the applicant sought only to press the first ground, namely that the respondent, by his servants or agents, be restrained from detaining the applicant pending the hearing and determination of this action. 5 The power of the Court to make an interlocutory order for release of persons in immigration detention on a temporary basis is not in dispute: Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 196 ALR 111 where it was held that the power in s 23 of the Federal Court of Australia Act 1976 (Cth) to make such interlocutory orders was not prevented by s 196(3) of the Act. Reasons of Ryan J 6 In his reasons Ryan J summarised the personal circumstances of the applicant as follows: '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.' 7 His Honour described the circumstances of the applicant's detention in the following terms: '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."' 8 The reasons then recount that the applicant had sought by application lodged on 8 February 2002 to challenge before the Administrative Appeals Tribunal ('the AAT'), the respondent's cancellation of her visa, but the AAT decided on 12 February 2002 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 respondent's decision to cancel her visa. That was discontinued on 24 May 2002 with the respondent's consent, being out of time. 9 The reasons then recount that on 14 May 2002 the applicant applied to the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') for a protection visa on which no decision had been made at the time Ryan J gave his reasons. 10 There was also evidence before Ryan J, including an affidavit from Father FR Brennan, the Assistant Director of the UNIYAA Jesuit Social Justice Centre, to the effect that the applicant was no longer regarded as a citizen of Myanmar and has no right to return to that country. 11 Also before Ryan J were two affidavits sworn on 15 and 18 November 2002 by Mr Gotovac, a Departmental officer, which described steps taken by the Department and its attitude to the applicant's release from detention. He stated that steps for removal of the applicant would not be progressed unless and until her protection visa application was refused by a delegate and finally determined. In his evidence he stated that if removal to a country of citizenship was not possible the Department would be likely to pursue possible entry rights to a third country. 12 Considering whether there was a serious question to be tried, Ryan J said that the contention which the applicant proposed to argue in support of the application for review was that the signed departmental briefing paper containing the decision of the respondent was not a satisfactory compliance with the requirement imposed by s 501G(1)(e) for the Minister to give a written notice setting out the reasons for the decision. Ryan J concluded after consideration of the reasoning of their Honours in Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281 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 an applicant has been notified. 13 The applicant also raised as a serious question to be tried the issue discussed by Merkel J in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009 and by Mansfield J in Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369. That involved the construction of s 196(1)(a) and s 198 of the Act in relation to the authorisation of detention of an unlawful non-citizen but, in the view of their Honours, 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. Ryan J distinguished the position of the applicant in several respects from that of the applicants in Al Masri and Al Khafaji. He considered that the most important was that she had a valid pending application for a protection visa and so her detention was mandated by s 196(1)(c) of the Act. His Honour did not consider that the respondent could be expected to resume negotiations for the reception of the applicant by Myanmar while there was the pending application for a protection visa and the same reasoning applied in respect of some third country. Additionally, he said that less significant points of difference or distinction were that the applicants in the other two cases had positively requested that they be removed from Australia whereas the present applicant had positively refused to cooperate in the preparation of any documents to lead to her removal. He then arrived at his conclusion that the application for interlocutory relief must fail. Evidence 14 The present application is supported in the case of the applicant by reliance upon the affidavit material which was before Ryan J. Additionally, reliance is placed on further affidavit material from the applicant in the form of affidavits sworn on 15 April 2003 and 6 May 2003. 15 The evidence for the respondent comprises an affidavit of Ms Ling sworn on 6 May 2003 annexing copies of formal documents and other relevant material from the respondent's file. Additionally, reliance is placed on the two affidavits of Mr Gotovac which were also before Ryan J. Fresh evidence 16 In her affidavit sworn on 15 April 2003 the applicant stated: 'Since the decision of 19th November 2002 the following has occurred: 2.1 On the 10th January 2002 I lodged a completed application for a Myanmar passport with Mr Phil Lovering the Manger of the DIMIA Perth Immigration Detention Centre and I am prepared to cooperate with the authorities. 2.2 My former Solicitor, Mr Andrews, has written to the Respondent withdrawing my application for a Protection Visa and this has been accepted by the Department. 2.3 On the 28th February 2003 I requested that I be returned to Myanmar. 2.4 On the 10th March 2003 my then Solicitor, Mr Andrews, wrote to the Respondent asking that I be removed from Australia within 7 days. 2.5 On the 27th March 2003 the Department noted that I wished to voluntarily depart.' However, she continued by stating that it is imperative she remain in Australia because she had been absorbed into the community and all her close relatives and friends are in Australia. She has had no connection with Myanmar for nearly thirty-two years. She regarded her situation as at an impasse because she continued to be held in detention in what she said were poor conditions and due to her being stateless she has no prospects of being accepted by Myanmar or any other country. She said that as she was no longer a citizen of Myanmar she would not be accepted there as a stateless person. Further she stated the respondent would not be acting bona fide and in good faith to deport her to Myanmar because of the following matters: '6.1 The Union of Myanmar is under military government of the State Peace and Development Council (SPDC) under General Than Shwe. 6.2 I expect to be imprisoned on deportation to Myanmar. Prison conditions in Myanmar constitute cruel, inhuman and degrading treatment as conditions in most prisons are extremely poor owing to lack of adequate food, water, sanitation and medical care according to the International Committee of the Red Cross. 6.3 The Union of Myanmar regularly deny citizenship to many of the population leaving them stateless. 6.4 The Respondent would not be acting consistently with Australia's international obligations to return me to Myanmar, in particular: The International Convention on Civil and Political Rights – Articles 7, 17.1 and 23; The Convention on the Reduction of Statelessness; The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 6.5 The Union of Myanmar's gross and systematic violations of human rights according to the United Nations Commission on Human Rights. 6.6 The concerns expressed by the United Nations Committee on the Elimination of Discrimination against Women about the plight of women in custody.' 17 In support of her request for immediate release from detention the applicant stated that she had a home to go to with her partner of four years who visits her daily at the detention centre and has done so for the last fourteen months. She identified the reasons why she asked to be released from detention as the following: '14.1 In the last 14 months much of my detention has been as the only long time female detainee and I have been housed openly with an ever changing group of males. I share the dining room and recreation and exercise facilities with those males. There can be as many as 20 males in detention at one time. 14.2 I occupy a 4 bedroom dormitory. I am normally the only occupant. The male dormitory is nearby and I can hear the males talking. 14.3 No violence has been directed at me but I am fearful that I may well be a victim as violence takes place at the Centre at times. 14.4 There are frequent violent outbursts by male detainees. 14.5 Over the 14 months from time to time improper suggestions have been made to me by male detainees. I have not been sexually assaulted yet. 14.6 Whilst detained I am not able to do any courses of study and I want to embark on a course to be a Counsellor to Counsel drug addicts and alcoholics.' 18 In the same affidavit the applicant also stated that she is on anti-depressants and has seen a psychologist a couple of times. She further stated that her continued detention has affected her parents greatly, her mother having liver cancer and her father having suffered a brain haemorrhage in November 2002. Further, her son has been under stress while she has been in detention. 19 In her affidavit of 6 May 2003 the applicant gave further particulars of the illness of her father. She said that he is presently at the Royal Perth Rehabilitation Hospital but on discharge will require 24 hour care for at the least the next 3 months. Although she has four brothers and two sisters living in Perth, they have young families so that the intention is that all would share in the father's care on a 24 hour, 7 day basis in which the applicant seeks to be a participant. Whether serious question to be tried ISSUES relating to respondent's decision 20 The contentions for the applicant are (including her own contentions expressed in affidavit form) that the decision of the respondent to cancel her visa was in error as he had failed to take into account whether she was deportable as a stateless person; as he did not take into account the problems associated with the present military government of Myanmar; and as he did not have any regard to Australia's international obligations. The International Conventions relied upon are: the International Convention on Civil and Political Rights – Articles 7, 17.1 and 23; the Convention on the Reduction of Statelessness; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 21 For the respondent it is submitted that for a serious question to be tried to be made out the applicant has to establish there is an arguable case of jurisdictional error entitling her to release under s 39B of the Judiciary Act 1903 (Cth) and thus avoiding the application of s 474 of the Act. So far as concerns the respondent's decision of 22 January 2002 it is submitted there can be no doubt the applicant did not pass the character test under s 501 of the Act. Reference is made to her record of convictions set out in the evidence and to the nature of the discretion vested in the respondent pursuant to s 501(2). 22 The application of this law in the context of s 501(2) is referrable to the terms of that subsection. That provides that the Minister may cancel a visa that has been granted to a person if 'the Minister reasonably suspects that the person does not pass the character test' and the person does not satisfy the Minister that he or she so passes that test. In relation to the character test, s 501(6) provides that a person does not pass the character test in certain circumstances. These include having a substantial criminal record and having regard to past and present criminal conduct. A substantial criminal record is defined by subs (7) to exist if a person has been sentenced to a term of imprisonment of 12 months or more or sentenced to two or more terms of imprisonment (whether on one or more occasion) where the total of those terms is two years or more. On the evidence of the applicant's criminal record (set out in the affidavit of Ms Ling) she would be a person having a substantial criminal record. 23 An examination of s 501(2) and the provisions applicable to the decision of the respondent demonstrate there is no case that the respondent should have taken into account that the applicant may arguably not be deportable as a stateless person or that he should have considered the problems associated with the present military government of Myanmar. 24 It is the case that in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 at par [155] it was concluded by the Full Court that s 196(1)(a) of the Act should be read subject to an implied limitation by reference to the principle that, as far as its language permits, a statute should be read in conformity with Australia's Treaty obligations. Here, however, it is not, except as a matter of the utmost generality, made apparent how any of the treaties upon which the applicant might rely could arguably give rise to an implied limitation arising from the treaty obligations. Whether or not the respondent should have paid regard to Australia's international obligations in the statutory environment of s 501 was not made out in submissions beyond a general assertion which I do not consider discharges the applicable onus. 25 The applicant's case also contends there is an arguable case in relation to the decision not to order the applicant to be released from detention. However, that case does not identify the decision in question nor any basis on which it could be challenged so that there is no arguable case for release established in that respect if such a decision was made. Additionally, the case of the applicant refers to the decision of the respondent to remove the applicant to Myanmar. There is no evidence of such decision and it is premature to consider it while the applicant has on foot a challenge in the Court to the cancellation of her visa. 26 Accordingly, I agree with the submissions for the respondent that the case for the applicant does not establish there is a serious question to be tried on the grounds discussed under this heading in relation to the decision to cancel the applicant's visa. question of continued detention 27 In Al Masri the Full Court dismissed an appeal from the decision of Merkel J in Al Masri at first instance, which had been considered by Ryan J. The effect of the decision of the Full Court is that the power to detain provided for in s 196(1)(a) of the Act is subject to the limitation of applicability to circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future. In the absence of that, the connection between the purpose of removing aliens and their detention becomes so tenuous, if indeed it still exists, as to change the character of the detention so that it becomes essentially punitive in nature and thus beyond power. In reaching that view the Full Court stated it did not intend to give any support to a contention that a person who has made a request in writing under s 198(1) might by their own act in frustrating the process of removal, make their continued detention unlawful. Furthermore, the Court stated that the conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one 'that will not be lightly reached'. 28 For the applicant it is contended she is a person in relation to whom there is no real likelihood or prospect of removal in the reasonably foreseeable future. This because she is a stateless person who will not be accepted Myanmar and has no connections with it. In relation to third countries there is no evidence of such real likelihood or prospect. That is to be understood in the context where she has been in detention since 14 February 2002, a period of approximately fifteen months. 29 For the respondent it is contended that the decision of the Full Court in Al Masri is to be distinguished because there Mr Al Masri's application had run its course and the detention was therefore only to be considered in relation to the issue of removal. Here it is said the applicant has brought an application for review of the Minister's decision which requires determination. It is submitted the principle in Al Masri should not be found to apply until all substantive applications by the applicant have been disposed of and detention continues without removal. 30 I am unable to accept the respondent's submission that Al Masri should be distinguished because the applicant has an application for review on foot. Section 196 refers to detention arising under s 189. It is not in dispute that the applicant was detained pursuant to s 189 as an unlawful non-citizen. Detention under s 189 brings into application s 196 which, informed by the provisions of s 198, is subject to the limitation found by the Full Court in Al Masri. The limitation arises from the statutory scheme. It is not an arbitrary limitation but one which requires close consideration of the facts in each particular circumstance. However, I can see no reason a priori why the application of the limitation does not require consideration here. In my view it is not precluded by the fact that the applicant has brought an application for review not yet resolved. 31 Nor do I consider that the application of the limitation found in Al Masri to the operation of s 196 is precluded here as the consequence of any action by the applicant seeking to frustrate the process of removal. Certain it is that some of the time in which the applicant has been in detention has seen the applicant lodge but not pursue applications to the AAT and to this Court and to the Department in respect of a protection visa. However, there is no foundation for finding that such steps had about them the element of such frustration. On the contrary, the evidence is that following the decision of Ryan J and apparently following the decision of the Full Court in Al Masri the applicant took steps, against her own better wishes, to facilitate the reasonable likelihood of her removal. 32 Putting aside merely the length of detention and the reasonableness of it and focussing upon the real likelihood or prospect of removal in the reasonably foreseeable future I reach the conclusion, not lightly, that no such likelihood or prospect is established in the case of the applicant. The burden having shifted to the respondent in that respect, it has not been discharged. In accordance with the principles in Al Masri, therefore, the applicant would be entitled to be released from detention on appropriate terms. Balance of convenience 33 So far as it may still be relevant, I consider the balance of convenience also favours the applicant. The application of the Al Masri principle weighs also in this balance. Additionally the applicant's personal circumstances support it. Her detention has continued since 14 February 2002. The conditions under which she is held are difficult for her, she being the only long term female detainee, detained in proximity to twenty males. Her parents are ill and could benefit from her care. She has an established partner to live with and a place in which to reside. 34 Since the decision by Ryan J the applicant has withdrawn her pending application for a protection visa; positively requested that she be removed from Australia; and completed documents which would facilitate her removal. The points of distinction drawn between her case and that of the applicants in Al Masri and Al Khafaji by Ryan J are therefore no longer extant. CONCLUSION 35 For these reasons I consider the motion for release from detention should be granted on appropriate conditions. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 19 May 2003 Counsel for the Applicant: Mr ILK Marshall Solicitor for the Applicant: SC Nigam & Co Counsel for the Respondent: Mr JD Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 May 2003 Date of Judgment: 19 May 2003