FEDERAL COURT OF AUSTRALIA Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1209 MIGRATION – application for release from detention pending determination of substantive application – whether release necessary to secure the effectiveness of the process of the hearing and the determination of the substantive proceeding – whether a marked balance convenience demonstrated Migration Act 1958 (Cth) ss 66(2)(d)(ii), 66(4) Migration Regulations 1994(Cth) Reg 5.03 Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76, [2001] FCA 250, referred to Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320, referred to Bullock v The Federated Furnishing Trade Society of Australasia (1985) 5 FCR 464, applied Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77, [2000] FCA 377, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, referred to A v Pelekanakis (1999) 91 FCR 70, [1999] FCA 236, referred to CHAN TA SREY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V936 OF 2003 MARSHALL J 29 OCTOBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V936 OF 2003 BETWEEN: CHAN TA SREY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 29 OCTOBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant's motion dated 23 October 2003 be dismissed. 2. The applicant pay the respondent's costs of the motion. 3. The applicant file and serve contentions of fact and law on or before 14 November 2003, and not later without leave of the Court. 4. The respondent file and serve contentions of fact and law on or before 28 November 2003, and not later without leave of the Court. 5. The trial be listed for 10.15 am on 2 December 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V936 OF 2003 BETWEEN: CHAN TA SREY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 29 OCTOBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The issue for determination in the Notice of Motion before the Court is whether the applicant should be released from migration detention pending the hearing and determination of the substantive proceeding. For reasons which are developed below, I have formed the view that the motion should be dismissed. 2 Both parties in this case approached the question as to the applicant's release on the basis that it be determined on ordinary interlocutory principles, that is, whether there is serious issue to be tried and the balance of convenience. If that approach is not the correct one to follow, and the question should be addressed on the basis of whether the applicant's release is appropriate for the purpose of securing the effectiveness of the hearing and determination of the substantive application, I would still not grant the relief sought in the motion. The applicant's release is not necessary to secure the effectiveness of the process of the hearing and the determination of his substantive application. Whilst detention may cause inconvenience, distress and financial loss, there is no evidence that this would impact on the effectiveness of the substantive proceeding or impede the applicant's ability to give instructions to prosecute that proceeding (see Minister for Immigration and Multicultural Affairs v Madafferi [2001] FCA 250 at [23], (2001) 106 FCR 76 per Heerey, Emmett and Conti JJ and Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320 per Marshall J). 3 In any event, whichever approach is taken, the result is unaffected. 4 While the submissions raised by counsel for the applicant show that there is a serious issue to be tried in the substantive proceeding, I consider that the claims of the applicant may be described as "more doubtful" such that "a marked balance of convenience" would be required to be demonstrated in favour of the applicant for the order sought to be made. In forming that view I have been guided by the considerations outlined in the following passage of the judgment of Woodward J, with whom Smithers J agreed, in Bullock v The Federated Furnishing Trade Society of Australasia (1985) 5 FCR 464 at 472: "The only point I would wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants' case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it." 5 I do not believe that there is a "marked balance of convenience" in favour of the applicant. In fact an examination of issues relevant to the balance of convenience, as discussed below, favour the position of the respondent. 6 I have not, below, set out full and concluded expressions of opinion for my current assessment of the strength of the applicant's case. Views of that sort will be required to be expressed after a fuller ventilation of all relevant issues at trial. Those views may not remain the same after hearing full argument. 7 The applicant is a citizen of Cambodia. On 17 March 1998 he applied for a spouse visa. By letter dated 19 May 2000 an officer of the respondent's department wrote to the applicant, care of his migration agent, to advise of the refusal of his application. The letter included the following paragraph: "You can apply to the Migration Review Tribunal for this decision to be reviewed. If you decide to apply for review, you must lodge the review application at a registry of the Tribunal before close of business on 16 June 2000, that is, within 28 days of the date of this letter, and pay the prescribed fee." (emphasis supplied) 8 The decision record of the delegate who made the decision bore the date 19 May 2000. 9 It was common ground between counsel for the parties that the time in which the applicant had to apply for review the delegate's decision expired 21 days after notification of the decision. 10 At the relevant time, Reg 5.03(1)(a) of the Migration Regulations 1994(Cth) ("the Regulations") provided that: "For the purposes of the Act and these Regulations…, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either: (a) if the document is sent from a place in Australia to an address in Australia – 7 days after the date of the document … ." 11 In Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77, [2000] FCA 377, Reg 5.03 was held to be invalid insofar as it purported to operate in respect of time limits for lodging an application to review a decision of the respondent's delegate. 12 Section 66(2)(d)(ii) of the Migration Act 1958 (Cth) ("the Act") provided at all material times that: "(2) Notification of a decision to refuse an application for a visa must: … (d) if the applicant has a right to have the decision reviewed under Part 5 and 7 or section 500 - state: … (ii) the time in which the application for review may be made …" 13 Counsel for the applicant submitted that the 19 May 2000 letter from the respondent's delegate, advising of the decision of the same day, did not comply with s66(2)(d)(ii) of the Act because it stated that the applicant had 28 days to seek a review, whereas he actually only had 21 days to seek a review. 14 It may be seriously doubted whether it was the intention of the majority of the Full Court in Singh to shorten time limits for applications for review of decisions of delegates of the Minister. It may also be doubted whether a letter which advises of a slightly more generous time limit, than that which should actually be given, is thereby a notification which is void. These doubts may also be fortified by the instant circumstances, where the notification of the precise period to seek a review would not have made any difference to whether or not the applicant would have exercised his right of review within the time limit of 21 days or within the time limit notified to his migration agent. 15 Section 66(4) of the Act provides that: "Failure to give notification of a decision does not affect the validity of the decision." 16 The applicant does not seek to impugn the validity of the decision, as distinct from its failure to be properly notified to him. However, it would be curious if the Act was properly to be interpreted as rendering notification of a decision void if the notification did not specify a period provided for in the Act, but some other more generous period, while at the same time securing the validity of the actual decision. Serious questions arise concerning whether the provisions of s66(2)(d)(ii) must be strictly complied with, such that an act done in breach of the provision should be treated as invalid; see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389-390. 17 As Weinberg J said in A v Pelekanakis (1999) 91 FCR 70, [1999] FCA 236 at [48]: "The classification of statutory provisions as mandatory or discretionary is, in any event, now regarded by the High Court as an exercise which diverts attention from the proper inquiry. The better approach is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." On what was put to me at the interlocutory hearing, currently I see no legislative purpose inherent in the Act which would invalidate a notification which allows further time within which an applicant for review may seek a review than the time actually required by the Act or Regulations. In some cases, such as the current one, the failure to state the actual time limit accurately will make no difference to whether or not a right of review will be exercised. 18 Even if one took a more generous view of the question of law raised by the applicant's counsel, the Court is of the view that the balance of convenience favours the respondent. The affidavit material placed before the Court on the motion by the applicant includes a recent rejection of an application by him for a bridging visa. In his reasons for rejecting that application, the respondent's delegate set out the following information: "IMMIGRATION HISTORY My Srey arrived in Australia on 09/09/1997 on a Visitor Visa s/c 676. On 27/11/1997 Mr Srey was granted a further 5 month extension on that visitor visa. On 17/03/1998 Mr Srey applied for a s/c 820 Spouse Visa to a Ms Sony TES. This visa was refused on 19/05/2000. As a result of this decision Mr Srey became unlawful as of 23/06/2000 and his wherabout became unknown to the Department. Mr Srey was located by Dandenong Compliance 18/09/2003 as a result of a field visit. Mr Srey was detained under s189 and placed in Immigration Detention. Mr Srey was released from detention 24/09/2003 and granted a Bridging Visa E (BVE) on the grounds of departure with a security of $30,000 attached to the grant. As per the conditions of this visa, Mr Srey was to produce an airline ticket to depart by 07/10/03 and depart Australia by 10/10/03. This visa would cease on 10/10/03. On 06/10/03 Mr Srey lodged an application to the Federal Court in relation to his failed residence application and produced evidence of this to the Department on 06/10/2003. A further application was made to vary the conditions of this visa on this same day. Mr Srey failed to present an airline ticket for his departure and did not depart Australia as per the above conditions. Mr Srey became an unlawful non-citizen on 11/10/03. Mr Srey attended the Dandenong office on 14/10/2003. Mr Srey was detained under s189 and placed into Immigration custody. Mr Srey was advised that the application made on 06/10/03 to vary the conditions of his bridging visa would be considered a new BVE application made in association to his Federal Court application – see folio 197 and 201. It was not considered appropriate to vary the conditions of a visa granted on departure arrangement when an application was not being made to the Federal Court. Therefore, the application made on 06/10/03 is the subject of this decision. ASSESSMENT I am of the view that Mr Srey has continually circumvented Migration Law since his arrival in Australia. I have formed this view based on Mr Srey's actions since his arrival on a visitor visa, the period of time in which Mr Srey remained unlawfully in Australia and the recent breaches of the last BVE granted. I therefore do not consider Mr Srey will abide by the conditions of any future BVE grant. I believe that Mr Srey did not have genuine intentions as a visitor from the time that he arrived in Australia. Mr Srey stated he met his now ex-wife within 4 days of his arrival in Australia. They married within 7 weeks of this meeting. An application for permanent residence was then lodged on spouse grounds. This application was refused as the decision-maker was not satisfied Mr Srey and the nominator were in a genuine relationship as specified in the Migration Regulations. At the time of this application, Mr Srey and nominator claimed to have an Australian born child. These claims were seriously doubted by the decision-maker. No review of this decision was sought. Following the refusal of Mr Srey's residence application on 19/05/00, Mr Srey soon after became an unlawful non-citizen and remained unlawfully in Australia with his whereabouts unknown until compliance officers located him on 18/09/03. By his own admission, Mr Srey worked unlawfully during this time on various farms and most recently at a bakery. At the time of Mr Srey's location he was found to be hiding in the roof and refused to come down under several compliance officers' instruction. Only after warnings that officers would enter the roof did Mr Srey agree to come down. Mr Srey's lack of co-operation and wilful attempt to evade immigration officers only furthers my contention that Mr Srey cannot be trusted to abide by visa conditions. Mr Srey was released from immigration detention on conditions that he make satisfactory arrangements to depart Australia. Mr Srey completed a passport application and based on his apparent cooperation was released on a $30,000 security. Mr Srey's last BVE was granted with conditions that Mr Srey produce a ticket to depart Australia by 07/10/03 and depart Australia by 10/10/03. Mr Srey was made fully aware of these conditions and on several occasions was reminded of the consequences should he fail to abide by these conditions – namely the bond would in all likelihood be forfeited. Mr Srey was also advised of the likely refusal of further visa applications as the decision would be based on previous abidance of visa conditions. Despite these warnings and in full knowledge of the possible ramifications of not abiding by these conditions, Mr Srey failed to produce a ticket and did not depart Australia, which resulted in Mr Srey becoming unlawful in Australia again. I consider the wilful breaches Mr Srey has incurred of a visa that has attached an extremely sizeable sum of money ($30,000) demonstrates his desperation to remain in Australia at all costs, in addition to the flagrant disregard Mr Srey has for Australia immigration laws and visa conditions. I am certainly of the view that it would take a significant amount of money well in excess of the $30,000 previously lodged to convince me that he would in future abide by visa conditions. I do not accept that Mr Srey will abide by the conditions of any further BVE. Given the fact that the last BVE that was granted to Mr Srey for departure with a security of $30,000. He showed indisputable non compliance of the conditions (8511) present a ticket for departure and (8512) leave Australia by a specific date. I strongly believe that Mr Srey will not comply with any further BVE's issued to him." 19 The matters raised by the respondent's delegate have not been contradicted by the applicant or his legal representatives. Counsel for the applicant contended that the applicant has in recent times complied with the demands of migration authorities. I do not see any force in that submission. The material referred to in the recent bridging visa decision leads me to the conclusion that, if released from migration detention, the applicant may seek to evade migration authorities, even if reporting conditions are imposed with respect to any release. 20 In the event that my tentative views about the merits of the applicant's case are wrong, I will assuage the applicant's situation by programming an early trial. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 29 October 2003 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the Respondent: Dr S Donaghue Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 24 October 2003 Date of Judgment: 29 October 2003