Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - protection visa - decision record signed but not dated by delegate of Minister - not communicated - whether grant of a visa - applicant seeks declaration that he has been granted a visa and is a lawful non-citizen - whether Court has power to make an interlocutory order for release pending hearing and determination of application

Minister for Immigration & Multicultural & Indigenous Affairsv VFAD of 2002

Minister for Immigration & Multicultural & Indigenous Affairsv VFAD of 2002 [2002] FCAFC 390 (9 December 2002)
Last Updated: 9 December 2002


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390


MIGRATION - protection visa - decision record signed but not dated by delegate of Minister - not communicated - whether grant of a visa - applicant seeks declaration that he has been granted a visa and is a lawful non-citizen - whether Court has power to make an interlocutory order for release pending hearing and determination of application

Migration Act 1958 (Cth) ss 5, 13(1), 14(1), 29, 65, 66, 67, 68(1), 70, 186, 188, 196(3), 196, 198, 474, 475A, 479 and 486C

Federal Court of Australia Act 1976 (Cth) s 19, 21 and 23

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609 at [54]-[55] referred to

NAMU of 2002 v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2002] FCA 907 referred to

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 applied

Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 referred to

International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784 at 789 referred to

Bond v Sulan (1990) 26 FCR 580 at 590-591 referred to

Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1 at 15 referred to

NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 999 at [30] referred to

Goldie v Commonwealth of Australia (2002) 188 ALR 708 referred to

Nicholas v The Queen (1998) 193 CLR 173 at 185-188, 202, 208-211, 224-225 and 232-233 referred to

VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 approved

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 29, 32 applied

Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 applied

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [30] applied

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425-426 referred to

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161 referred to

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [27] referred to

Egan v Willis (1998) 195 CLR 424 at [5] referred to

R v Home Secretary; Ex parte Khawaja [1984] AC 74 at 99, 111 and 128 referred to

Hinks v National Parole Board [1972] FC 925 referred to

Sedore v Commissioner of Penetentiaries [1972] FC 898 referred to

Re Ellis & The Queen (1972) 9 CCC (2d) 149 (Fed. Ct.) referred to

Re Weston and Superintendent of the Prison for Women [1972] 1 OR 342 referred to

R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 538, 550 referred to

Ruddock v Vadarlis (2001) 110 FCR 491 referred to

Trobridge v Hardy (1955) 94 CLR 147 at 152 referred to

Williams v The Queen (1986) 161 CLR 278 at 292 referred to

Coco v The Queen (1994) 179 CLR 427 at 437-438 applied

Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 applied

Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 referred to

Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77and 80-81 referred to

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 referred to

Kartinyeri v The Commonwealth (1998) 195 CLR 337 at [97] referred to

Peniche v Vanstone (1999) 96 FCR 38 at 44-46 referred to

Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158 referred to

Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123 referred to

Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 referred to

Omar v Department of Immigration and Multicultural Affairs (1997) 48 ALD 607 referred to

Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483 referred to

Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504 referred to

Piroglu v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 99 referred to

Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 referred to

Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 referred to

Habal v Minister for Immigration Local Government and Ethnic Affairs (unreported, 12 September 1990) referred to

Towers v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 88 referred to

Luu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 161 referred to

Ho Song Lu v Minister for Immigration and Multicultural Affairs [1998] FCA 1723 referred to

Long v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 366 referred to

Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 referred to

Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 referred to

Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320 referred to

Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76 referred to

NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 referred to

Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 referred to

VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253 approved

Aronson & Dyer, Judicial Review of Administrative Action, 2nd ed

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v APPLICANT VFAD OF 2002

V 616 of 2002

BLACK CJ, SUNDBERG and WEINBERG JJ

9 DECEMBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 616 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
APPLICANT VFAD OF 2002

RESPONDENT


JUDGE:
BLACK CJ, SUNDBERG and WEINBERG JJ


DATE OF ORDER:
9 DECEMBER 2002


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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
V 616 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
APPLICANT VFAD OF 2002

RESPONDENT




JUDGE:
BLACK CJ, SUNDBERG and WEINBERG JJ


DATE:
9 DECEMBER 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
THE COURT

1 This is an appeal, by leave, from a judgment of a judge of this Court, Merkel J, given on 27 August 2002. The primary judge granted an injunction restraining the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") from continuing to detain the respondent in immigration detention pending the final hearing and determination of this proceeding. The Minister contends that his Honour had no power to do so.

2 The appeal raises for consideration whether the power conferred by s 23 of the Federal Court of Australia Act 1976 ("Cth) ("the Federal Court Act") to make interlocutory orders can be exercised to order the release, on a temporary basis, of persons in immigration detention. Or is the Minister correct when he contends that this power has been withdrawn in its application to such persons since the introduction in 1994 of s 196(3) of the Migration Act 1958 ("the Migration Act")?

BACKGROUND

3 The respondent to this appeal is a citizen of Afghanistan, and of Hazara ethnicity. On 21 March 2001 he arrived in this country by boat from Indonesia. He had no visa permitting him entry and he was therefore, upon arrival, an "unlawful non-citizen" for the purposes of the Migration Act. He was taken into immigration detention at the Curtin Immigration Reception and Processing Centre, in Western Australia.

4 On 27 July 2001 the respondent applied to the Minister for a protection visa. He claimed that he had a well-founded fear that, if required to return to Afghanistan, he would be persecuted because of his race, and religion.

5 The respondent's application was considered by Mr Steven Thompson, a case officer based in New South Wales, and attached to the Department of Immigration and Multicultural Affairs ("the Department") as it was then known. Mr Thompson was a delegate of the Minister.

6 After interviewing the respondent and giving careful consideration to the various matters raised in support of his claim, Mr Thompson signed, but did not date, an eleven page document headed "Protection Visa Decision Record" ("the decision record"). The evidence before the primary judge disclosed that this document was signed on 7 December 2001.

7 In the decision record Mr Thompson summarised each of the matters relied upon by the respondent, considered the criteria that had to be satisfied for the grant of a protection visa, and made findings in favour of the respondent in respect of each of those criteria. He stated that he was satisfied that the respondent had a well-founded fear of persecution.

8 Mr Thompson summarised his findings as follows:

"DECISION ON PROTECTION OBLIGATIONS
I find that [Applicant VFAD of 2002] is a person to whom Australia has protection obligations under the Refugees Convention.

DECISION ON PROTECTION (CLASS XA) VISA APPLICATION

I am satisfied that [Applicant VFAD of 2002] is a person to whom Australia has protection obligations under the Refugees Convention.

I am satisfied that [Applicant VFAD of 2002] satisfies all Regulations Schedule 2 Part 785 criteria. Accordingly I grant him a Protection (Class XA) temporary visa. The applicant also:

* has undergone medical examinations carried out by a Commonwealth Medical Officer (clause 785.224)

* where necessary, has undergone a chest x-ray (clause 785.225)

* has satisfied public interest criteria 4001 to 4003 (clause 785.226)

* has satisfied the Minister that the grant of the visa is in the national interest (clause 785.227)

* is in Australia (clause 785.411)

* has not been offered a temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC (clause 785.223)

Only one Protection visa can be held by a person at any one time. My decision to grant a Protection visa on all Protection visa applications before me from [Applicant VFAD of 2002] gives him only one Protection visa.

[Signed]

S Thompson

Position number: 6425

Delegate of the Minister for Immigration and Ethnic Affairs

for purposes of section 65 of the Migration Act 1958"

9 It was common ground before the primary judge that the respondent was not notified of the decision record signed by Mr Thompson. Indeed, it did not come to light until some months later, after a request for the respondent's file had been made under the Freedom of Information Act 1982 (Cth).

10 Mr Thompson gave evidence before the primary judge that the reason why the respondent had not been provided with the decision record was that it was nothing more than a draft assessment. In his affidavit he summarised his involvement, inter alia, as follows:

"6. On 27 July 2001 the applicant lodged an application for a Protection (Class XA) visa (´┐Żprotection visa application´┐Ż) with the Department. The applicant also lodged a completed Form 80 - Personal Particulars for Character Assessment.
7. I was assigned to process the protection visa application. On 29 July 2001, I interviewed the applicant in relation to his protection visa application.

8. Clause 785.226 is in Part 785 of Schedule 2 to the Regulations and requires the applicant to satisfy public interest criterion 4002.

9. Public interest criterion 4002 is in schedule 4 to the Regulations and provide(s):

4002 The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.

10. I travelled overseas on Sunday, 9 December 2001 on Departmental business and was not due to return to work until the New Year.

11. Prior to my departure, Ms Karen Dix, who was at the relevant time employed as the Team 4 Manager of the Onshore Protection Section, Sydney requested me to prepare a draft assessment of the applicant's case.

12. On Friday, 7 December 2001, in accordance with Ms Dix's request, I prepared a draft assessment in relation to the applicant's case. A copy of the document I prepared on that date is located at folios 86 to 96 of DIMIA file No. CLF2001/37297 which I am informed is Exhibit ND 2 to the affidavit of Ms Nichola Donovan sworn on 22 July 2002. The document was signed by me but not dated to indicate that it was not a decision. Decisions are always dated on the day that they are made.

13. I drafted my assessment presupposing that a clear PIC 4002 check would be received in relation to the applicant and that changes in Afghanistan would not impact the applicant's case. I did so only for the purposes of facilitating the finalisation of the case in the event that this became possible in my absence.

14. As at 7 December 2001, I was not satisfied that the applicant met all the criteria for the grant of Subclass 785 (Temporary Protection) visa. In particular, I was not satisfied that the applicant met clause 785.226 of the Regulations as I had not received the results of the PIC 4002 check.

15. In addition, I was also aware on 7 December 2001 that the changing circumstances in Afghanistan could impact on the finalisation of the applicant's case.

16. Following my departure from Australia on 9 December 2001, I had no further involvement in the further processing of the applicant's protection visa application.

17. I did not at any time make a decision in relation to the applicant's protection visa application or any record of any such decision and did not grant the applicant a Subclass 785 (Temporary Protection) visa or make a record of any such visa."

11 An examination of the respondent's file disclosed that Mr Thompson requested a security assessment on 9 November 2001 as a matter of urgency. However, that assessment was not provided until 18 December 2001. It concluded that the respondent was not a security risk.

12 The primary judge then explained at [8]:

"It appears that there was a change of policy within the Department which resulted in the suspension of the processing of protection visa applications by Afghan asylum seekers pending the receipt of further information about the security situation in Afghanistan as a result of the fall of the Taliban Government. On 18 January 2002 the Department informed the applicant that the processing of applications for protection visa applications which depended on the situation in Afghanistan was being suspended pending a stabilisation of the situation in that country."
13 After Mr Thompson's departure overseas on 9 December 2001 the respondent's file was transferred to a different delegate of the Minister, Ms Kirsty Bradbeer. She was located in Victoria. She considered the respondent's application for a protection visa afresh.

14 On 11 April 2002 Ms Bradbeer determined that the respondent's application should be refused. The primary judge considered that her decision had, in all likelihood, been influenced by the changed circumstances in Afghanistan. By that observation, his Honour plainly had in mind the overthrow of the Taliban regime and the reduction in overt military activity in that country.

15 On 12 April 2002 the respondent lodged with the Refugee Review Tribunal ("the Tribunal") an application for review of Ms Bradbeer's decision. Accompanying that application was the FOI request, to which reference was earlier made, for copies of all documents contained within the respondent's file. On 22 May 2002 the file was provided to the respondent. It contained Mr Thompson's decision record.

16 On 29 May 2002 the Tribunal conducted a hearing in relation to the respondent's application for review. On 26 June 2002 the Tribunal decided that Ms Bradbeer's decision refusing the respondent's application for a protection visa should be affirmed.

17 On 22 July 2002 the respondent instituted a proceeding in this Court pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In that proceeding the final relief sought was a declaration that, on or about 30 November 2001, he had been granted a protection visa and a further declaration that, as from that date, he was a lawful non-citizen. The respondent sought, by way of interlocutory relief, an order that pending the hearing and determination of his application he be released from immigration detention. It was the primary judge's decision to grant that interlocutory relief that gave rise to the present appeal.

THE LEGISLATION

18 In order to understand the issues raised in this appeal, it is first necessary to set out two statutory provisions which are of central importance. They are s 23 of the Federal Court Act, and s 196 of the Migration Act.

19 Section 23 provides as follows:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kind, as the Court thinks appropriate."
20 Section 196 is in the following terms:

"(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or

(b) deported under section 200; or

(c) granted a visa.


(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."

21 The meaning to be accorded to these provisions, and the relationship between them, can only be properly understood when regard is had to various other provisions of the Migration Act.

22 Section 13(1) of that Act provides that "a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen". Section 14(1) provides that "a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen". Section 5(1) contains a definition of "migration zone". It is sufficient, for present purposes, to note that any person within Australia is deemed to be within the "migration zone".

23 As already noted, the respondent arrived in Australia without a visa. It is common ground that he was, therefore, at that stage, an "unlawful non-citizen".

24 There are two sections of the Migration Act that are closely linked to s 196. The first is s 189(1), which provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. The second is s 198, which provides for the removal from Australia, as soon as reasonably practicable, of unlawful non-citizens.

25 Although the word "detention" is not defined in the Migration Act, s 5 defines the word "detain" as meaning:

"(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so."

26 Section 5 also provides a somewhat elaborate definition of the expression of "immigration detention". It means, inter alia, being in the company of, and restrained by an officer, or being held by, or on behalf of an officer, in a detention centre established under the Migration Act. The word "officer" is defined as meaning, inter alia, an officer of the Department, a person who is an officer for the purposes of the Customs Act 1901 (Cth), a member of the Australian Federal Police, or a member of the police force of a State or Territory.

27 The word "visa" is defined in s 5 as having the meaning given by s 29. That section provides that the Minister may grant a non-citizen "permission, to be known as a visa" to travel to and enter Australia, or to remain in Australia.

28 Section 31 provides for "prescribed classes of visas". One such class is the "protection visa". Section s 36(2) provides that a criterion for a protection visa is that the applicant be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.

29 Further criteria are set out in item 785 of Sch 2 to the Migration Regulations 1994 (Cth). Clause 785.5 provides that a Subclass 785 Temporary Protection Visa permits the holder to remain in Australia until a permanent visa is granted, or until the end of thirty-six months. Clause 785.226 refers to what are described as "public interest criteria", of which criterion 4002 deals with whether the applicant is assessed as being a risk to national security.

30 Section 46 sets out the criteria which must be met in order for a visa application to be valid. Section 47 requires the Minister to consider a valid application for a visa. That requirement continues until the application is withdrawn, or the Minister grants or refuses to grant the visa, or the further consideration is prevented by, inter alia, s 84. Section 84 empowers the Minister, by notice in the Gazette, to suspend the processing of visa applications of a specified class until a day specified in the notice.

31 Section 65 deals with the decision to grant or refuse a visa. That section relevantly provides:

"(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa."

The Minister's powers under the Migration Act may be delegated: s 496.

32 Section 66 requires the Minister, when he grants or refuses to grant a visa, to notify the applicant of the decision in the prescribed way. However, s 66(4) provides that failure to give notification of a decision does not affect the validity of the decision. Section 67 provides that a visa is to be granted by the Minister "causing a record of it to be made".

33 Section 68 relevantly provides:

"(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:

(a) specified in the visa; or

(b) when an event, specified in the visa, happens."

34 Section 70 provides that, subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen "evidence of the visa". Section 71 provides that evidence of a visa is to be given in the manner prescribed by the regulations.

35 Sections 65 to 71 make clear a number of matters. A visa is, as s 29 provides, simply the grant to a non-citizen of permission to travel to and enter Australia, or remain in Australia. Section 65 provides that upon reaching the requisite state of satisfaction in relation to the criteria required to be satisfied, the Minister or his delegate must grant the relevant visa. Sections 66 and 67 provide for notification of the Minister's decision and the way in which a visa is to be granted. It seems that a visa may be granted orally but s 67 makes it clear that, once granted, a record of it is to be made. Section 68 provides that a visa has effect "as soon as it is granted". Sections 70 and 71 provide for evidence of visas. It is essentially these provisions which form the basis of the respondent's contention that he was granted a visa by Mr Thompson when he signed the decision record in December 2001.

THE PROCEEDING BEFORE THE PRIMARY JUDGE

36 The application for interlocutory relief was heard by the primary judge on 2 August 2002. The Minister did not contend that the Court had no power to grant final relief, by way of declaration, if it concluded that the respondent had been granted a protection visa. However, it was submitted that the Court had no power to grant the interlocutory relief sought.

37 Put simply, the argument for the Minister was as follows. The respondent was, and always had been, an unlawful non-citizen. He would continue to be an unlawful non-citizen until the Court finally determined whether he had been granted a visa, as he claimed. Section 196 of the Migration Act provides that an unlawful non-citizen must be kept in immigration detention until one of three specified things occurred. Section 196(3) prevents even a court from ordering the release of an unlawful non-citizen from detention. It followed that until his claim to have been granted a visa was finally determined, this Court had no power to order his release.

38 When this submission was advanced on behalf of the Minister before the primary judge, it became clear that if accepted, it could work grave injustice. A person who claimed to have been granted a visa, and therefore to be entitled to release from detention, would have to remain in detention until that person's claim had been finally determined. Depending upon the circumstances of the particular case that could take a very considerable time. In order to avoid this consequence in the present case, it was indicated on behalf of the Minister that he was prepared to take any steps necessary to ensure that the matter received an expedited hearing so that the respondent's claim could be determined as quickly as possible.

39 The offer of an expedited hearing was rejected by the respondent. It was submitted on his behalf that the matter could not proceed to a final hearing until a number of inquiries had been completed. There were also certain interlocutory steps which had to be taken.

40 The primary judge accepted the submission on behalf of the respondent that the matter could not be ready for a final hearing in the near future. He therefore determined that he should hear, without delay, on 2 August 2002 the claim for interlocutory relief.

41 It was contended on behalf of the Minister that the Court had no power, under s 23 of the Federal Court Act, to grant the interlocutory relief sought because that power had been abrogated by s 196(3). It was contended, in the alternative, that assuming such power existed, this was not an appropriate case for its exercise as a matter of discretion.

42 After hearing extensive argument, the primary judge rejected the contention that the general power to grant interlocutory relief, pursuant to s 23, had been abrogated by s 196(3) of the Migration Act. In arriving at that conclusion, his Honour applied the same reasoning as he had in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609 at [54]-[55]. That case did not concern the power of the Court to grant interlocutory relief. However, it did involve s 196(3). In Al Masri, Merkel J held that the section did not apply to prevent a Court from ordering the release of an unlawful non-citizen from detention in circumstances where that detention was unlawful. In arriving at that conclusion his Honour agreed with an observation to the same effect by Beaumont J in NAMU of 2002 v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2002] FCA 907.

43 The primary judge reasoned as follows. If the respondent were to succeed in his application for a declaration that he had been granted a visa by Mr Thompson, as he claimed, the consequence would be that his detention since that date would have been unlawful. As s 196(3) could not prevent a court from ordering the release of a person from unlawful detention, it could not prevent a court, having found that the person had been granted a visa, from making final orders requiring that person's release. Although the respondent had sought only declarations by way of final relief, it was clear that the relief he sought contemplated the possibility that an order for his release would be made in the unlikely event that such an order was required.

44 Given that the Court plainly had power to grant both declaratory relief, and an order for release in the event that it became necessary for such an order to be made, the question was whether the Court's general power to grant interlocutory relief in otherwise appropriate cases had been abrogated, expressly or impliedly, by s 196(3).

45 His Honour noted that the respondent's application appeared to involve a challenge to a decision of an administrative character made under the Migration Act, which therefore constituted a privative clause decision under s 474(2). However, he doubted that s 474(1) was of any relevance. That was because the present case concerned the question whether a privative clause decision had actually been made. The section did not prevent the Court from determining that issue. Nor, in his Honour's view, did it prevent the Court from granting appropriate declaratory and injunctive relief on the basis of that determination. Indeed, his Honour observed that a determination by the Court of that issue, which would entirely resolve the dispute between the parties, was itself a precondition to the operation of s 474(1).

46 Neither party sought to argue, on the appeal to this Court, that the primary judge erred in concluding that s 474 was of no assistance in resolving the question whether s 196(3) abrogated the general power conferred by s 23. Accordingly, it is unnecessary to say anything further about this aspect of his Honour's reasoning.

47 The primary judge then turned to the question whether s 196(3) should be construed as either expressly or impliedly denying the power under s 23. His Honour noted a line of authority in this Court which holds that the general power conferred by the section can be exercised to order the release, on an interlocutory basis, of persons in immigration detention. The authorities include the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, a case to which we shall return. He also observed that the general power conferred by s 23 had been invoked even after the enactment of s 196(3) in 1994.

48 The primary judge also referred to passages in the judgments of Mason CJ and Toohey J in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 13 and 51 respectively in which their Honours accepted that s 54R of the Migration Act, as it then stood, which provided for mandatory detention of "designated persons" and that a court could not order their release, did not deny the Court's interlocutory power to do so.

49 Having concluded that the Court had the power to grant the interlocutory relief sought, his Honour turned to consider whether, as a matter of discretion, that relief should be granted. He found that there was a serious question to be tried as to whether the respondent had been granted a protection visa, as he claimed. He rejected the submission, put on behalf of the Minister, that because the decision record was nothing more than a "draft assessment", there was therefore no serious question to be tried. Having arrived at that conclusion, it was plain in his view that the balance of convenience favoured the grant of interlocutory relief, a point which was effectively conceded on behalf of the Minister.

50 Accordingly, the primary judge ordered that the Minister refrain from continuing to detain the respondent in immigration detention. Although that order was expressed in negative terms it was, in all but name, a mandatory injunction.

THE SUBMISSIONS ON THE APPEAL

The Minister's submissions

51 The Minister made it clear, when he sought leave to appeal, that for the purposes of this proceeding, he did not challenge the primary judge's finding that there was a serious question to be tried regarding the respondent's status.

52 The only issue the Minister sought to agitate was whether the primary judge erred in holding that the Court had power to order the respondent's release, on an interlocutory basis.

53 It was submitted that s 23 did not confer power upon the Court to make an order, on an interlocutory basis, that the respondent be released from immigration detention. That was because the section had to be read subject to s 196(3) which, it was contended, "expressly or impliedly" denied the s 23 power.

54 It was also contended, albeit ambiguously, that the Migration Act provided an "exhaustive code" of available remedies. The Minister did not refer in terms to such a "code", but it was implicit in his submissions that the Act should be so construed. Interlocutory injunctions were not included amongst these remedies. It was conceded, as it had been before the primary judge, that declaratory relief was available to the respondent as final relief. However, the fact that a declaration might be made, after a final hearing, did not mean that an injunction could be granted, prior to such a hearing. A declaration, by its very nature, was a final order which, when made, bound the parties forever, subject only to a right of appeal. It was not an interlocutory remedy: International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784 at 789; Bond v Sulan (1990) 26 FCR 580 at 590-591 and Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1 at 15.

55 It was submitted that the primary judge had erred by relying upon the reasoning of the Full Court in Msilanga (supra). That case, and the other authorities to which his Honour referred, were said to relate to different provisions of the Migration Act, and therefore to be of limited utility when considering the operation of s 196(3).

56 Msilanga concerned the operation of s 93(9), the legislative precursor to the present s 253(9) of the Migration Act. Section 93(9) conferred upon the Minister a discretionary power to order the release, at any time, of a person in detention awaiting deportation. Whether such a person should be kept in immigration detention, or in detention as a deportee was, and is, a matter of discretion. It followed, so it was submitted, that the statutory regime considered in Msilanga differed significantly from the mandatory detention scheme embodied in s 196.

57 The other cases to which the primary judge referred, and which were also said by the Minister to be distinguishable, nearly all concerned s 501 of the Migration Act. That section authorises the Minister to refuse to grant a visa to a person, or to cancel a visa, if that person does not satisfy the Minister that the person "passes the character test". It should be noted, however, that s 15 provides that once a visa has been cancelled, its former holder becomes, on the cancellation, an "unlawful non-citizen". At that stage, s 189 comes into effect. That section provides that an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain the person. Section 196 would then presumably require that person's continued detention. Accordingly, the same difficulty as arose in the present case would theoretically confront such a person seeking release.

58 It was never precisely articulated by counsel on behalf of the Minister why the many cases which have held that this Court has power to grant interlocutory relief in relation to a challenge brought against the Minister's decision to cancel a visa, on character grounds, were distinguishable from the present case. The legislative regime governing such decisions, pursuant to s 501, is not greatly dissimilar, in its effect, to that under s 196. It is significantly different to that which applies under s 253(9).

59 The next submission put by the Minister was that the primary judge had erred in failing to follow NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 999. In that case Hely J rejected an application for an interlocutory injunction seeking the release of the applicants pending the hearing of a challenge to the constitutional validity of s 196. The Minister relied, in particular, upon his Honour's statement at [30]:

"... s 196(3) is a legislative command to the Courts not to order the release of persons in the position of the applicants..."
60 It was submitted that this statement was to be regarded as being inconsistent with the reasoning of the primary judge in the present case.

61 The next argument advanced on behalf of the Minister turned upon the historical context within which s 196(3) had been enacted. It was submitted that the section had been introduced to overcome the difficulties created by the decision of the High Court in Lim (supra). That case had held that s 54R, a legislative precursor to s 196, was constitutionally invalid and it was submitted that the re-enactment of the section, in its modified form, was intended to make it clear to the Court that it could not, under any circumstances, order the release of persons who were unlawful non-citizens.

62 The submission was said to be supported by reference to the Explanatory Memorandum to the Migration Reform Act 1992, which dealt with the enactment of s 54ZD, the successor to s 54R, and the immediate precursor to s 196(3). That Memorandum stated:

"This section provides that a non-citizen detained under section 54W must be kept in immigration detention until he or she is removed, deported, or granted a visa (in which case he or she ceases to be an unlawful non-citizen). Where an application for a visa has been made, release cannot be effected unless and until the visa has been granted. The section also makes it clear that a court may not order the release of an unlawful non-citizen unless the non-citizen has made a valid application for a visa and the criteria for a visa have been satisfied by the non-citizen. The section makes it clear that the detention and non-release provision apply only in respect of non-citizen who is an unlawful non-citizen."
63 Presumably the Minister relied upon that part of the passage set out above which stipulated that "release cannot be effected unless and until the visa has been granted". In a case such as the present, however, where the very question to be determined is whether or not a visa was granted, we do not consider the passage to be of assistance.

64 The Minister put two further arguments before this Court, neither of which had been raised before the primary judge.

65 The first was a submission that turned upon s 482(2) of the Migration Act, a provision which was repealed in October 2001. The section provided that if an application were made in relation to what was formerly described as a "judicially reviewable decision", the Court could make orders staying or otherwise affecting the operation or implementation of the decision. However, it limited the power of the Court to make such orders by requiring them to be "appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal [sic]". (The reference to "the appeal" was plainly an error on the part of the legislature since an application for review under Pt 8 of the Act, as it then stood, was an "application" and not an "appeal".)

66 The Minister's argument was, essentially, that the repeal of s 482(2) deprived the Court of the power to grant interlocutory relief, since the power to grant such relief must have been attributable to that section. The argument assumed that s 23 of the Federal Court Act was not the source of the power to grant interlocutory relief in relation to decisions taken under the Migration Act. According to the Minister, the repeal of s 482(2) left s 196(3) unencumbered by the limited power to grant a stay, or other equivalent relief, which would have the effect of enabling a person kept in immigration detention to be released pending the hearing and determination of that person's claim for final relief. The argument appeared to proceed upon the basis that it was hardly conceivable that Parliament, while introducing the privative clause regime, would at the same time repeal a section limiting the power of the Court to grant interlocutory relief unless it was clearly of the view that the section being repealed was unnecessary. The only basis upon which that section could conceivably have been considered unnecessary was if s 196(3) were thought to achieve essentially the same object.

67 The second argument not put before the primary judge involved a challenge to that aspect of his reasoning whereby his Honour observed that if, as the respondent claimed, he had been granted a visa, his subsequent detention was unlawful. It was submitted that this conclusion did not follow and was flawed.

68 This second argument was based upon s 189. It was submitted that the effect of that section was to require the respondent to be detained, as an unlawful non-citizen, from the moment that he entered this country without a visa. Such detention would be lawful for so long as the officer responsible for that detention knew, or reasonably suspected, that the respondent was an unlawful non-citizen. It followed that even if the respondent had been granted a visa in December 2001, as he claimed, and was therefore no longer an unlawful non-citizen from that time, that fact alone would not render his subsequent detention unlawful: Goldie v Commonwealth of Australia (2002) 188 ALR 708.

The respondent's submissions

69 The respondent submitted that the primary judge had rightly held that the Court had power to grant the interlocutory relief sought in this case. It was submitted that his Honour had correctly applied Msilanga, and the many other cases in which Msilanga had been followed, all of which had held that the general power to grant interlocutory relief conferred by s 23 could be exercised to order the release of persons in immigration detention. In substance, the respondent sought to meet the Minister's primary contentions on the appeal by relying entirely upon the reasoning of the primary judge.

70 In answer to the first of the two arguments not put before the primary judge, it was submitted that the repeal of s 482(2) did not support the contention that the general power of the Court to grant interlocutory relief should be regarded as having been abrogated, in its application to migration matters, by s 196(3). Rather, it was submitted, the repeal of s 482(2) had precisely the opposite effect. Whatever limitations there may have been upon the scope of s 23, by reason of s 482(2), those limitations no longer operated after that section was repealed. In other words, the repeal of s 482(2) widened the Court's powers and certainly did not narrow them.

71 It was next submitted, in answer to the second of the new arguments, that whether the Court had power to grant the interlocutory relief sought did not, in the final analysis, depend upon whether the respondent could demonstrate that his detention after December 2001 was unlawful. He was not suing the Commonwealth for false imprisonment. His claim, put simply, was that he was not now, and had not been since Mr Thompson's "decision", an unlawful non-citizen.

72 It was submitted that, having found that there was a serious question to be tried as to whether the respondent had been granted a visa, and that the balance of convenience favoured the respondent's release, the primary judge had acted correctly in ordering the Minister to refrain from continuing to detain him, pending the final hearing of his application. It was submitted that his Honour had correctly observed that s 23 conferred upon the Court a wide power to make interlocutory orders. That power was unconstrained by s 196(3) because that section, upon its proper construction, had no application to a person who had either been granted, or arguably had been granted, a visa.

73 It was submitted that s 196(3) should not be read as abrogating the general power conferred by s 23 to grant interlocutory relief. A person kept in immigration detention, who is not in fact an unlawful non-citizen, would suffer a loss of liberty for which that person could never be adequately recompensed. It was said that a person who may arguably be in that situation ought, in principle, to be able to secure from this Court an order for immediate release. It was no answer for the Minister to say, as he did, that such a person could obtain final relief in due course. Nor was it an answer for the Minister to say that in a sufficiently strong case such relief could be obtained by way of summary judgment.

74 It should be noted that the respondent contended that in the event that the Court acceded to the Minister's submission that s 196(3) abrogated the general power to grant interlocutory relief, that section would be constitutionally invalid.

75 Two arguments were foreshadowed in support of the constitutional argument. It was first submitted that it was not open to the Parliament to prevent the Court from granting interlocutory relief, in an otherwise appropriate case, in circumstances where the Court unquestionably had power to grant final relief. A provision which had that effect would represent an impermissible interference on the part of the legislature with the manner in which a court exercising the judicial power of the Commonwealth was to exercise that power. This argument relied heavily upon the observations of the High Court in Lim (supra) at 27. See also Nicholas v The Queen (1998) 193 CLR 173 at 185-188 per Brennan CJ, 202 per Toohey J, 208-211 per Gaudron J, 224-225 per McHugh J, and 232-233 per Gummow J.

76 The alternative argument was that to construe s 196(3) as the Minister contended would mean that it would not be a law with respect to aliens, or to immigration, pursuant to ss 51(xix) and (xxvii) of the Constitution respectively. On that argument, s 196(3) would exceed the legislative power of the Commonwealth.

HREOC's submissions

77 The Human Rights and Equal Opportunity Commission ("HREOC") appeared, by leave, as an intervener on the hearing of the appeal. It argued that the primary judge had correctly determined that the Court had power to order the release of the respondent on an interlocutory basis.

78 HREOC submitted that s 196(3) was no bar to the Court exercising its general power under s 23 to order the release of a person from detention. The respondent claimed that he was not an unlawful non-citizen, and was able to demonstrate that he had an arguable case. It was implicit in his application that he sought an order for his release. It did not matter, in these circumstances, whether his detention since December 2001 had been unlawful, or whether s 189 operated to prevent that conclusion from being drawn.

79 It was contended that s 196(1) was confined in its application to persons who were, in fact, unlawful non-citizens. It did not apply to persons who may, or may not, be unlawful non-citizens. The section differed, in that respect, from s 189(1) which applied to persons reasonably suspected of being unlawful non-citizens. If s 196(1) was so confined, there was no reason to construe s 196(3) as having any wider application.

80 It was submitted that if the respondent had been granted a visa, as he claimed, he was not now, nor had he been since December 2001, an unlawful non-citizen. The question whether he had in fact been granted such a visa had not yet been judicially determined. It was not yet established, therefore, that s 196(3) required that he be kept in detention.

81 It was submitted, in the alternative, that whether the respondent had been granted a visa raised a "jurisdictional fact" for determination. It was for the Minister, who sought to keep the respondent in detention, to establish the fact that he was an unlawful non-citizen. Once the respondent adduced cogent evidence that supported his contention that he was a lawful non-citizen, the existence or otherwise of that jurisdictional fact had to be determined by the Court. It was not a matter to be determined by the Minister.

82 Finally, it was submitted that s 196 should be interpreted and applied, so far as its language permitted, in a manner which was consistent with established rules of international law and which accorded with Australia's treaty obligations. It was submitted that when the section was construed in that manner, it did not abrogate the general power of the Court to grant interlocutory relief. HREOC referred in particular to rights conferred by the International Covenant for Civil and Political Rights by arts 2(3), 9(1) and 9(4).

REASONING ON THE APPEAL

The question of standing

83 There is one preliminary matter which should be addressed before we turn to the other issues raised on this appeal. That is the question of standing. Although not raised before the primary judge, or during the hearing of the appeal, it emerged as an issue of potential significance after oral argument had been completed.


84 The question arises because of the operation of s 486C of the Migration Act, which came into effect on 2 October 2001. That section relevantly provides:

"(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Court or the Federal Magistrates Court that raises an issue:
(a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens; and

(b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations;

(whether or not the proceeding raises any other issue).

(2) Those persons are:

(a) a party to a review mentioned in section 479; or

(b) the Attorney-General of the Commonwealth or of a State or a Territory; or

(c) a person who commences or continues the proceeding in performing the person's statutory functions; or

(d) any other person prescribed by the regulations."

85 The question is whether the proceeding brought by the respondent raises an issue of the type prescribed in s 486C(1) and, if so, whether either the respondent or the Minister is a person mentioned in s 486C(2).

86 The potential relevance of s 486C to the present proceeding was not appreciated until the existence of that section was noted by Gray J in VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243. That case was decided shortly after the appeal in the present case was heard.

87 VHAF involved virtually the same facts as the present appeal. Indeed, it concerned a decision record prepared and signed by Mr Thomson on the same day as that on which he signed the decision record in the present case.

88 In VHAF, it was accepted by the Minister that s 486C did not deprive the applicant of standing. When invited to make further submissions to this Court regarding the operation of that section the Minister adopted the same position. A similar approach was taken on behalf of the respondent, and on behalf of HREOC.

89 VHAF concerned the standing of the applicant only, and not that of the Minister. However, in the present case the standing of both the respondent, at first instance, and the Minister, on appeal, appeared to be in issue. Nonetheless, all parties filed extensive written submissions dealing with this point, and it was common ground that s 486C did not deprive either the respondent, or the Minister, of standing.

90 In these circumstances, we consider that, apart from noting the helpful exposition of s 486C by Gray J in VHAF, it is unnecessary to say anything further about this question.

The power of the Court to grant interlocutory relief

91 Power to grant interlocutory relief is conferred by s 23 of the Federal Court Act. That section has been considered by the High Court on a number of occasions, including, most relevantly, the decision in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1.

92 One question which arose in that case was whether s 23 empowered the Court to grant interlocutory relief in any proceeding in which it had jurisdiction. Alternatively, did the Workplace Relations Act 1996 (Cth) provide an exhaustive code of remedies which excluded the granting of an interlocutory injunction?

93 In a joint judgment, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said at 29:

"Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) ... to make "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction." (emphasis added)
94 Their Honours cited with approval, at 32, a passage from the judgment of Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 where his Honour said at 622:

"Wide though that power [the power under s 23] is, it is subject to both jurisdictional and other limits. It exists only "in relation to matters" in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the "kinds" of order, whether final or interlocutory, which are capable of properly being seen as "appropriate" to be made by the Federal Court in the exercise of its jurisdiction."
95 Their Honours went on to say that one limitation on the powers of this Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. One such example would be to prevent the abuse or frustration of the Court's process. The Mareva injunction was a paradigm illustration of an order made to prevent such abuse or frustration. However, other examples could also be found. Their Honours said at 33:

"The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked: (Tait v The Queen (1962) 108 CLR 620)."
96 More recently, in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, the High Court held that s 23 conferred power upon the Court to grant what was described as a "Mareva order" against a third party. It was stressed, as it had been in Patrick, and also in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425-426, that the section did not authorise this Court to grant injunctive relief where jurisdiction was acquired under another statute which provided an exhaustive code of the available remedies, and that code did not authorise the grant of an injunction. It was also stressed that s 23 did not provide authority for the granting of an injunction where, whether under the general law, or by statute, there was otherwise no case for injunctive relief: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161.

97 In the joint judgment of Gaudron, McHugh, Gummow and Callinan JJ in Cardile at 401, their Honours referred specifically and with approval to the passage from Patrick at 29, set out above. They observed that, subject to two matters, neither of which is relevant here, that passage should be accepted as a correct statement of principle.

98 In general terms, therefore, the High Court has held that the power conferred upon this Court by s 23 may be exercised in any proceeding in which this Court has jurisdiction. That power is subject only to the limits specifically identified by the High Court, particularly the limits to which reference was made in Patrick, as set out above. It is at least implicit in what was said in that case that the section should be construed as conferring power on this Court to ensure that it can exercise effectively the jurisdiction which it otherwise possesses. That conclusion is generally consistent with the broad ambit of the power conferred upon this Court in its original jurisdiction by ss 19 and 21.

99 It should be noted that the wide interpretation accorded to s 23 by the High Court is, in general terms, consistent with the approach traditionally taken to the power of superior courts of record to grant interlocutory injunctions. Such injunctions may be granted to protect equitable rights and, in what is sometimes described as the "auxiliary jurisdiction", to restrain the threatened infringement of some legal right (that is, some breach of contract, tort or invasion of statutory right).

100 Historically, injunctive relief would only be granted to protect a right that was proprietary in nature, in circumstances where damages would not be an adequate remedy. It is now no longer necessary to demonstrate that the legal right which is threatened is proprietary: Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [27]; Egan v Willis (1998) 195 CLR 424 at [5] and Cardile (supra) at [30], citing Bradley v The Commonwealth (1973) 128 CLR 557.

101 In modern times, there is nothing peculiar about the notion that an interlocutory injunction can be granted by the courts to restrain what is said to be an unlawful detention. In Aronson & Dyer, Judicial Review of Administrative Action, (2nd ed), the learned authors observe, at 670:

"There is no reason in principle against the possibility of terminating an imprisonment by means of a mandatory injunction, but no decision expressly so holds."
102 Although habeas corpus will generally be available to secure release from such detention, there is no reason, in principle, why the two remedies may not overlap. Indeed, it has been held that habeas corpus can overlap with the remedies of declaration, certiorari and prohibition: R v Home Secretary; Ex parte Khawaja [1984] AC 74 at 99, 111 and 128. The Canadian courts have held, in circumstances where habeas corpus cannot be granted, that injunctive and declaratory relief may be available: Hinks v National Parole Board [1972] FC 925. Moreover, there is some support for the proposition that declaratory relief, or mandamus, may be obtained to prevent a future unlawful detention: Sedore v Commissioner of Penetentiaries [1972] FC 898; Re Weston and Superintendent of the Prison for Women [1972] 1 OR 342 and Re Ellis & The Queen (1972) 9 CCC (2d) 149 (Fed. Ct.).

103 In R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518, a case which concerned the power of deportation under the Immigration Act 1901 (Cth), Isaacs J observed at 538 that the right to personal liberty was second only to a claim to life itself. His Honour contemplated that an injunction might lie to protect liberty by preventing a threatened illegal imprisonment. He also said, at 550, that although habeas corpus might be the "appropriate remedy", in a suitable case a quia timet injunction might be "possible as preventive". See generally Ruddock v Vadarlis (2001) 110 FCR 491.

Does s 196(3) expressly or impliedly deny the s 23 power?

104 The Minister's submission that s 196(3) expressly abrogated the s 23 power in relation to persons kept in immigration detention must be rejected. Section 196(3) is silent as to the power of this Court to grant interlocutory relief in circumstances where a person in detention claims not to be an unlawful non-citizen. Moreover, s 196(2) makes it clear that persons who are lawful non-citizens are not caught by s 196, and are not to be detained.

105 The alternative argument advanced on behalf of the Minister was that s 196(3) should be construed as impliedly denying to the Court the s 23 power. To evaluate that argument, it is necessary to bear in mind some fundamental principles of statutory interpretation.

106 It is plain that s 196(3) is intended to limit the power of the Court by preventing it from ordering the release of persons who are unlawful non-citizens. However, whether a person is an unlawful non-citizen is, as the Minister rightly conceded, ultimately a matter for the Court to determine.

107 The difficulty which arises in the present case is that the respondent contends that he has presented cogent evidence that he is not an unlawful non-citizen, but the Minister does not accept that contention. Inevitably, it will take some time to resolve that issue. Does s 196(3) require the continued detention of the respondent pending the final determination of that question? Or is the Court empowered, in the ordinary way, to grant interlocutory relief pending that final resolution, assuming that it is otherwise appropriate to adopt that course?

108 In construing s 196(3), it is important to appreciate that the effect contended for by the Minister would be to require persons who might otherwise be at liberty to be detained. The right to personal liberty is, as Fullagar J described it, "the most elementary and important of all common law rights": Trobridge v Hardy (1955) 94 CLR 147 at 152.

109 In Williams v The Queen (1986) 161 CLR 278 Mason and Brennan JJ said at 292:

"Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England `without sufficient cause'...
The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes."

110 Section 196(3) should, in our view, be construed consistently with the principles discussed in Coco v The Queen (1994) 179 CLR 427 by Mason CJ, Brennan, Gaudron and McHugh JJ at 437-438:

"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. (See Chu Kheng Kim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at p 12, per Mason CJ.)
,,,

[C]urial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights." (emphasis added)


111 Reference should also be made to Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 where Brennan J said:

"The law of this country is very jealous of any infringement of personal liberty (Cox v Hakes (1890) 15 App Cas 506, at p 527) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right: R v Cannon Row Police Station (Inspector) (1922) 91 LJKB 98, at p 106. ... The Constitution of the Australian Commonwealth does not contain broad declarations of individual rights and freedoms which deny legislative power to the Parliament, but the courts nevertheless endeavour so to construe the enactments of the Parliament as to maintain the fundamental freedoms which are part of our constitutional framework. It is presumed that that is the intention of Parliament, though the courts acknowledge that the balance between the public interest and individual freedom is struck not by the courts but by the representatives of the people in Parliament. Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation. ..." (emphasis added)
112 The references to "a fundamental freedom" in Coco and Re Bolton must be understood against the background of the particular provisions under consideration in those cases. The restriction upon the Court's power to order release under s 196(3) may be seen as being of a different order, being one step removed from the more direct protections involved in those cases. Nevertheless, we consider that the general statements of principle set out above are applicable to the construction of that section.

113 We are unable to accept the Minister's submission that s 196(3), upon its proper construction, impliedly denies the s 23 power to this Court. In our opinion, Parliament has not made "unmistakably clear" its intention to abrogate the power of this Court to protect a "fundamental freedom" by ordering the release, in appropriate circumstances, on an interlocutory basis, of persons in detention who have seriously arguable claims to be lawful non-citizens and thus to have their liberty.

114 We are fortified in our conclusion by reference to the principle that s 196 should, so far as the language permits, be interpreted and applied in a manner consistent with established rules of international law and which accords with this country's treaty obligations: Polites v The Commonwealth (1945) 70 CLR 60 per Latham CJ at 68-69, Dixon J at 77, and Williams J at 80-81; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 per Mason CJ and Deane J at 287 and Kartinyeri v The Commonwealth (1998) 195 CLR 337 per Gummow and Hayne JJ at [97]. In this case arts 2(3), 9(1) and 9(4) of the International Covenant for Civil and Political Rights are pertinent.

115 We are also fortified in our conclusion by the fact that the two members of the High Court in Lim (supra) who addressed the issue of interlocutory relief, Mason CJ and Toohey J, considered that the legislative precursor to s 196(3) did not deny the s 23 power.

116 The further submission advanced on behalf of the Minister was that the Migration Act contained an exhaustive code of the remedies available to persons in immigration detention and by implication, therefore, did not authorise the grant of interlocutory relief. This further submission was not articulated with any precision. The Minister relied upon the passage from Patrick Stevedores set out in par [93] above, which was emphasised in bold in the written submissions, and which was said to support the conclusion that s 196(3) operated to deny the s 23 power to the Court. That passage included as the second limb of the principle adopted by the Court the "exhaustive code" doctrine.

117 The further submission cannot be sustained for the reason that the Migration Act in its present form does not contain an "exhaustive code" of the remedies available to persons who may be aggrieved by decisions of the Minister. There is nothing to indicate that the provisions of the Migration Act constitute an exhaustive code of the remedies available to protect the rights of persons detained under that Act. Indeed, it is plain that no such code was intended. The remedies available pursuant to s 39B of the Judiciary Act 1903 (Cth) are expressly preserved by s 475A of the Migration Act. Even if one were to consider the Act in its previous form, the authorities clearly establish that it did not provide for such an "exhaustive code".

118 In Msilanga (supra) the Full Court held that this Court had power, by virtue of ss 19 and 23 of the Federal Court Act, read (if need be) in conjunction with s 15 of the Administrative Decisions (Judicial Review) Act to grant an interlocutory injunction requiring the release from custody of a person detained under the Migration Act pending a challenge to a decision that he should be deported from this country by reason of his having been convicted of a serious criminal offence.

119 Counsel for the Minister did not invite this Court to hold that Msilanga was incorrectly decided. He sought, rather, to distinguish that case. We do not consider the reasoning in Msilanga to have been erroneous. Nor do we consider that case to be readily distinguishable from the present case, as the Minister contends.

120 Further support for the conclusion that there is no exhaustive code may be drawn from cases decided in relation to different legislation. In Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 it was held by French J that, notwithstanding the specific power contained in s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Court had the general power, under s 23, to grant interlocutory relief in proceedings brought under that Act.

Did the primary judge misconceive the authorities from Msilanga onwards?

121 The primary judge did not deal with the question whether s 196(3) denied the Court the s 23 power in any abstract manner. His Honour observed that there was a well-established body of authority in this Court in support of the proposition that the section conferred general power, in an appropriate case, to grant interlocutory relief requiring the release of a person in immigration detention.

122 As the primary judge noted, Kenny J considered many of the relevant authorities in Peniche v Vanstone (1999) 96 FCR 38 at 44-46. They included Msilanga (supra); Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158; Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123; Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389; Omar v Department of Immigration and Multicultural Affairs (1997) 48 ALD 607; Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483 and Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504.

123 Msilanga is of critical importance to this appeal. In that case, the applicant sought judicial review of two decisions by the Minister, the first to detain him in custody, and the second to continue his detention. He sought an order, on an interlocutory basis, that the Minister be directed to release him from detention.

124 The Minister opposed that application upon the ground, amongst others, that the Court had no power to grant the interlocutory relief sought. Beaumont J (with whom Black CJ agreed) held that there was such power by virtue of, inter alia, s 23. His Honour acknowledged the limits upon the power conferred by that section, accepting that an interim order granted under s 23 could not travel beyond the jurisdiction or powers available by way of final relief. As his Honour noted, the stream could not rise higher than its source. However, it was plain that final relief by way of release from custody could be ordered. If as a matter of power, and jurisdiction, release could be ordered at the final hearing, it must also be within the power of the Court to make such an order on an interlocutory basis, provided it was otherwise appropriate to do so.

125 Msilanga has been followed in many cases but as previously indicated, it was submitted on behalf of the Minister that all those cases fell within one or other of two distinct categories, neither of which was applicable to the present case.

126 The first category was described as "deportation decisions under s 200" of the Migration Act. Included in that category were those cases in which the Minister had declined to exercise a discretion to order the release of a person detained pending deportation, pursuant to s 253(9) and its legislative precursors.

127 The cases identified as falling within this category included: Piroglu v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 99 per Northrop J; Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 per Lockhart J; Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 per Gummow J; Habal v Minister for Immigration Local Government and Ethnic Affairs (unreported, 12 September 1990) per Lockhart J; Towers v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 88 per Carr J; Betkhoshabeh v Minister for Immigration and Multicultural Affairs (supra) per Weinberg J; Tuaoi v Minister for Immigration and Multicultural Affairs (supra) per Kiefel J; and Luu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 161 per Marshall J.

128 The second category was said to consist of those cases where the Minister had exercised a discretion to refuse to grant, or to cancel a visa, on character grounds, pursuant to s 501. They included: Ho Song Lu v Minister for Immigration and Multicultural Affairs [1998] FCA 1723 per Dowsett J; Long v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 366 per Nicholson J; Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 per Hill J; Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 per Madgwick J; and Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320 per Marshall J.

129 Many of the cases in both categories were decided at a time when s 482(2) operated, prior to its repeal in October 2001. That section did not apply to deportation cases, but was applicable to cases under s 501 and it was understood to impose limits upon the breadth of the power to order interlocutory relief. For example, in Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76 a Full Court recognised the power of this Court to intervene on an interlocutory basis in an application for judicial review of a decision of the Minister under s 501A of the Migration Act. However, their Honours considered that s 482(2) limited the power of the Court to intervene, permitting injunctive relief only for the purpose of securing the effectiveness of the hearing and determination of what the Migration Act called "the appeal".

130 It is true that the deportation cases to which we have referred all involved provisions of the Migration Act which conferred upon the Minister a discretion as to whether to detain a person subject to deportation, and not a provision such as s 196 which denied both the Minister in s 196(1), and the Court in s 196(3), the power to release an "unlawful non-citizen". In none of those cases was it suggested, however, that the s 23 power was denied, though s 196 was, of course, not applicable to them.

131 It will be recalled that the Minister argued that the repeal of s 482(2) deprived the Court of the power to grant interlocutory relief since the power to grant such relief must have been attributable to that section. That argument presupposes that the source of power to grant interlocutory relief, since the enactment in 1994 of s 196(3), was s 482(2), and not s 23. The argument finds little support in the text of the Migration Reform Act 1992, given that neither s 482(2), nor s 196(3) specifically addressed the Court's more general power to grant interlocutory relief conferred by s 23. More fundamentally, the argument that s 196(3) denies the s 23 power is based upon a reading of the section which does not accord the language its ordinary and natural meaning.

132 If we have misunderstood the Minister's argument, and he was contending that the repeal of s 482(2) in some way triggered the abrogation of the general power to grant interlocutory relief under s 23, the same conclusion must follow for there is no reason why the repeal of s 482(2), which the authorities had held limited the scope of s 23, should have the apparently perverse effect of abrogating the latter section in its entirety. If the power to grant interlocutory relief under s 23 was able to co-exist with s 482(2), notwithstanding the presence of s 196(3), it is difficult to see why the repeal of s 482(2) should suddenly cause s 196(3) to be construed more broadly than had previously been the case, and as abrogating s 23 in its entirety.

133 The analysis of the case law stemming from Msilanga to the present day undertaken by the primary judge has not, in our view, been shown to be in error. Nor is that line of authority, much of it decided during the period that s 482(2) applied, diminished in its significance by the repeal of that section. If anything, that repeal seems to us to add weight to the conclusion that the s 23 power has not been relevantly abrogated.

134 As noted earlier, it was submitted on behalf of the Minister that the decision of the primary judge in the present case was inconsistent with that of Hely J in NAMU (supra). There his Honour considered, and rejected, an application for a mandatory interlocutory injunction for the release of the applicants from detention. They were seeking that release pending the final determination of an appeal from the judgment of Beaumont J in NAMU of 2002 v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (supra).

135 Hely J referred to the decision of the High Court in Lim (supra) where it was held, by majority, that s 54R of the Migration Act (which provided that a court was not to order the release from custody of a "designated person") was constitutionally invalid. The section had the potential to include persons who were lawfully within Australia. The basis upon which it was held to be invalid was that it purported to prevent the courts from ordering the release of such persons, notwithstanding that it may have been unlawful, or beyond power, to keep particular designated persons in custody.

136 Hely J, after summarising Lim, said at [21]-[22]:

"21. What is important for present purposes is that the majority held that notwithstanding their conclusion in relation to s 54R, the detention of the plaintiffs was lawful, as s 54L required that the plaintiffs, as "designated persons", must be kept in custody until removed from Australia, or until the occurrence of the other events specified in Division 4B. Hence, question 2 did not arise, as provisions of the legislation which were constitutionally valid required that the plaintiffs must be kept in custody. If persons are required by a valid law to be kept in custody, they are not entitled to be released.
22. McHugh J was in the minority in Lim. At p 68 his Honour noted that, in the absence of a statutory power, courts have no general power to order the release of persons kept in custody pursuant to statutory enactments. At p 69 his Honour said:

"In Minister for Immigration, Local Government and Ethnic Affairs v Msilanga, however, the Full Court of the Federal Court held that a judge of the Court has jurisdiction to order the release of a person, detained in custody pending the execution of a deportation order, until the person's application for review under the A.D.(J.R.) Act is determined. By reason of this decision, the draftsperson may have concluded that s. 54R was necessary to ensure that designated persons were kept in custody until released or removed in accordance with Div. 4B. If so, he or she was mistaken because, having regard to the terms of s. 54L(2), no court could order the release of a designated person except in those cases where Div. 4B requires that the custody of the designated person should cease. The terms of s. 54L(2) make it impossible to exercise the jurisdiction, recognized in Msilanga, in relation to designated persons."

137 It is clear that the judgment of Hely J in NAMU had nothing to do with the power of this Court to order the release, on an interlocutory basis, of a person in immigration detention. More particularly, there was no claim by the applicants in that case, as there is in the present, that they were not unlawful non-citizens.

138 In our opinion, there is nothing in the judgment of Hely J which is inconsistent with the reasoning of the primary judge regarding the relationship between s 23 and s 196(3). As Hely J noted, even if the applicants in NAMU were to succeed in their appeal, and demonstrate that s 196(3) was unconstitutional, that would not mean that their detention was unlawful: nor would it entitle them to be released. They would continue to be unlawful non-citizens, and remain in immigration detention by reason of s 196(1).

139 The position of the respondent in the present case is, as the primary judge correctly noted, entirely different. If his application for declaratory relief succeeds, he will not be an unlawful non-citizen. He will instead be regarded as having been granted a visa in December 2001, and recognised as having been a lawful non-citizen from that time onwards.

140 We consider that the reasoning of the primary judge is supported, at least in part, by the judgment of Beaumont J in NAMU (supra). As noted above, in that case the applicants sought a declaration that s 196 was invalid to the extent that it purported to derogate from the jurisdiction vested in this Court by s 39B of the Judiciary Act. That was because s 196 supposedly directed this Court as to the manner in which it was to exercise that jurisdiction. His Honour rejected that argument. He held that s 196 was a valid law made under the aliens power conferred by s 51(xix) of the Constitution. Importantly for present purposes he observed:

"15. Further, in my view, it is clear on the face of [s 196(3)] that it is not intended to direct or control the manner of exercise of any judicial power; rather, it makes it clear that there is no jurisdiction in a court to direct the release of a person lawfully detained. But this is not to say that the question whether or not a person is an "unlawful non-citizen" is not justiciable or not examinable by a court; it would be open to a court to order, for example, that a person judged not to be an "unlawful non-citizen", be released; that is to say, the ability of the courts to determine the lawfulness of any detention remains unaffected by the provisions of Division 7".
141 NAMU did not concern the power of the Court to grant interlocutory relief. The judgment of Beaumont J was the subject of an appeal regarding the challenge to the constitutional validity of s 196(3). In NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 this Court dismissed the appeal, and upheld the validity of that section. We would add the comment that the observation expressed by Beaumont J, in that case, that it would be open to this Court to order that a person judged not to be an unlawful non-citizen be released is, with respect, in accordance with well-established authority, and plainly correct. That observation is also supportive, in a general sense, of the conclusion that s 196(3) does not of itself deny the s 23 power.

142 As noted earlier, the judgment of Beaumont J in NAMU was referred to with approval by Merkel J in Al Masri (supra). In Al Masri, having found that there was no likelihood that the applicant would be able to be removed from Australia, at least, in the foreseeable future, Merkel J ordered that he be released forthwith from immigration detention. The order that his Honour made was not interlocutory, but was in the nature of final relief. His Honour's judgment turned upon the fact that the applicant was being detained unlawfully. Accordingly, and consistently with Lim, s 196(3) presented no obstacle to his release.

143 It was submitted, on behalf of the Minister, that the judgment of Merkel J in Al Masri was plainly incorrect, and that the case should not be followed. It should be noted that his Honour's judgment in that case has since been followed by Mansfield J in Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369. Al Masri itself is presently the subject of an appeal to the Full Court. In our view, the reasoning adopted by Merkel J in that case was not central to his Honour's reasoning in the present case. It follows that even if Al Masri was decided incorrectly (and we refrain from commenting upon that point) it would not mean that his Honour's more general reasoning in the present case should be impugned.

VHAF and VJAB - Cases decided since the hearing of this appeal

144 After this appeal had been heard, two further applications were made to judges of this Court for interlocutory relief in circumstances not dissimilar to those in the present case.

145 In VHAF (supra) Mr Thompson, the same delegate of the Minister, prepared a decision record which was, in all material respects, almost indistinguishable from that which gave rise to the proceeding before the Court in this case. That decision record was signed on 7 December 2001, the same date as the decision record in the present case. It too was not dated. Mr Thompson swore an affidavit in virtually the same terms as the affidavit he swore in this case, explaining that the document was nothing more than a "draft assessment". As in the present case, the decision record only came to light after a request had been made for access to documents under the Freedom of Information Act.

146 As in the present case, the applicant submitted that the decision record constituted the grant of a visa, and that he was therefore not an unlawful non-citizen. It was common ground that the Court had jurisdiction to deal with the applicant's claim for declaratory relief, that being a claim for relief on a final basis. The question was whether the Court had power as well to grant interlocutory relief.

147 The approach taken by Gray J in resolving that question differed somewhat from that taken by the primary judge in this case. His Honour first considered whether, having regard to the statutory duties imposed upon the Minister by ss 47 and 65 of the Migration Act, it was open to the Minister, or his delegate, to defer consideration of applications of a particular kind, at the request, or on the direction, of another officer of the Department, as Mr Thompson had apparently done. He also queried whether officers of the Department had authority to make the requests, or give the directions. He drew attention to the notice requirements for the suspension of the processing of visa applications contained in s 84, and the fact that it appeared that these requirements had not been met. He concluded that these matters strengthened significantly the applicant's claim that he had been granted a visa.

148 Gray J then turned to the question of power to grant interlocutory relief. What is of particular significance in his Honour's judgment, at least so far as this appeal is concerned, is that he dealt specifically with the second of the two additional arguments advanced by the Minister which had not been raised before the primary judge in this case.

149 It was submitted before Gray J, as it had been before this Court, that the s 23 power had been abrogated because, even if the applicant were to succeed in proving, at a final hearing, that he had been granted a visa in December 2001, he would not thereby be entitled to a declaration that he had been detained unlawfully since that time. In other words, it was submitted that the decision of the primary judge in the present case was flawed because it failed to take into account the fact that s 189 rendered the detention lawful irrespective of whether the detainee was an unlawful non-citizen.

150 Gray J dealt with that argument in the following manner:

"77. It will be seen that that definition has two parts. "Detain" can mean the act of taking into detention. It can also mean the continued holding of a person in detention. On this basis, counsel for the Minister submitted that the effect of s 189 is twofold. Not only is there a power, and a duty, to take a person into detention if an officer knows or reasonably suspects that the person is an unlawful non-citizen, but there is also a power, and a duty, to keep that person in detention until the reasonable suspicion has been allayed. Thus, counsel for the Minister submitted, it cannot be said that the detention of the applicant became unlawful if a visa was granted on 7 December 2001 unless the applicant can show that no relevant officer of the Department held a reasonable suspicion that the applicant was an unlawful non-citizen.
78. To construe s 189 in that way would be productive of serious practical difficulties. It would be almost impossible to know whether, somewhere in the Department, there existed an officer, perhaps ignorant of recent developments or other facts, harbouring a suspicion that could therefore be considered to be reasonable, so that continued detention of a person was required. Even if the officer responsible for the original detention no longer had a reasonable suspicion that the person detained was an unlawful non-citizen, that officer would be powerless to arrange the release of the person unless he or she became satisfied that no other officer held such a reasonable suspicion. It would be almost impossible for a person in detention to know whom to contact for the purpose of providing information that would allay a reasonable suspicion.


79. Fortunately, s 189 is susceptible of a construction that could avoid such dramatic results. It should be noted that the definition of "detain" in s 5(1) of the Migration Act is expressed in the alternative. The use of the disjunctive between the two arms of the definition appears to have been a deliberate step by the drafter, for the purpose of making the definition useful in a variety of contexts. It is also worth noting that, in the terms of s 5(1), the definition is applicable throughout the Migration Act "unless a contrary intention appears". An examination of the context of s 189 makes it clear that the word "detain" in s 189 has the meaning given by the first limb of the definition of "detain" in s 5(1), namely to take into immigration detention. It is s 196 that provides for the keeping of such a person in immigration detention until one of the events referred to in s 196(1) occurs. Counsel for the Minister pointed out that s 196(2) is expressed in permissive terms, rather than in terms that mandate the release from detention of a citizen or a lawful non-citizen. This is so. It is also true that s 196(2) contains no reference to s 189. The clear assumption underlying these provisions is that detention of a citizen, or a lawful non-citizen, is unlawful unless justified. The taking into detention of such a person may be justified on the basis of a reasonable suspicion that the person is an unlawful non-citizen. If, in fact, the person is a lawful non-citizen, there is an entitlement to immediate release."

151 His Honour went on to say:

"80. In my view, s 189 of the Migration Act provides no authority for the continued detention of a lawful non-citizen. If the applicant succeeds at the trial in establishing that a protection visa was granted to him on 7 December 2001, it will be possible for him to succeed in his claim for a declaration that his detention since that date has been unlawful. Nothing in Goldie v Commonwealth of Australia [2002] FCA 433 at [6] and [20] per Gray and Lee JJ and [45] - [47] per Stone J, or in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [367] per Wilcox J, [454] and [580] per French J and [645] per von Doussa J, with whom Black CJ and Beaumont J agreed, on both of which counsel for the Minister relied, contradicts this proposition. The comments made in Goldie were directed to the process of taking into detention, not to the question of continued detention. Indeed, at [20], Gray and Lee JJ expressed the view that arrest and detention not justified by reasonable suspicion pursuant to s 189(1) was unlawful. Similarly, at [45], Stone J cited the comment of Deane J in Kioa v West (1985) 159 CLR 550 at 631 that:

"An alien who is unlawfully within this country is not an outlaw. Neither public officer nor private person can physically detain or deal with his person ... without his consent except under and in accordance with the positive authority of the law."
81. Some modification might need to be made to the general proposition that detention is unlawful without statutory authority, in the light of Ruddock v Vadarlis [2001] FCA 1329 (2001) 110 FCR 491 at [7] per Black CJ and at [193] - [197] per French J (with whom Beaumont J agreed). There are suggestions in those passages that an executive power to prevent the entry, or compel the expulsion, of non-citizens includes a power to detain. As a general rule, however, it is plain that detention without lawful authority is itself unlawful, particularly of a person who is in Australia, where there exists a statutory regime regulating detention. As I have said, that statutory regime is based on the assumption that detention without statutory authority is unlawful."

152 We consider that his Honour's analysis provides an answer to this additional argument advanced on behalf of the Minister in this appeal. His discussion of the distinction between the scope of s 189, and that of s 196(1), in the context of the word "detain" is persuasive. In our opinion, there is no substance in the contention that the primary judge fell into error because he failed to appreciate the effect of s 189 upon the lawfulness, or otherwise, of the respondent's detention.

153 Gray J ultimately expressed his agreement with the decision of the primary judge, and concluded that s 23 had not been abrogated by s 196(3). He said:

"83. Counsel for the Minister submitted in the present case that the judgment of Merkel J in VFAD was wrong and should not be followed. He submitted that Merkel J misapplied the principle derived from Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] 34 FCR 169, and that s 196 of the Migration Act constitutes a bar to what would otherwise be the power of the Court to order the release of a person taken into detention pursuant to s 189.
84. I have examined the reasoning of Merkel J in VFAD. I am far from convinced that his Honour was wrong. Until such time as the Full Court holds that his Honour was wrong (if that should occur), the reasoning in VFAD represents the law and I should follow it.

85. The difficulty about regarding s 196 of the Migration Act as an absolute bar to the exercise by the Court of its ordinary power to grant interlocutory orders is that s 196 is not expressed in absolute terms. As I have said, this section is not intended to justify the continued detention of a citizen or a lawful non-citizen. Whether the applicant is a lawful non-citizen is the central issue in the present case. The applicant has made out a serious question to be tried on that issue. If he is a lawful non-citizen, his detention should have ceased on the grant of his visa on 7 December 2001, when the visa took effect by virtue of s 68(1) of the Migration Act. A clear expression of a legislative intention to deprive the Court of power to release a person from detention in those circumstances would be required. Despite the general tenor of the Act, which favours the detention of unlawful non-citizens, there is no clear provision that a person who has established a serious claim to be a lawful non-citizen should be unable to obtain interlocutory relief from the Court.


85. I am therefore of the view that the Court has power to make the interlocutory order sought by the applicant."
154 The question whether the s 23 power had been abrogated by s 196(3) was also considered by Marshall J in VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253, after oral argument in this appeal.

155 In that case, the applicant sought interlocutory relief arising out of very similar circumstances to those which gave rise to the present proceeding. Once again, an undated decision record had been signed by a delegate of the Minister, although not on this occasion by Mr Thompson, but by a Ms Flora Vigors. It was again submitted on behalf of the Minister that the Court had no power to grant the interlocutory relief sought. Essentially, the same arguments were advanced as had been put before this Court, and also before Gray J. Marshall J too rejected those arguments.

156 His Honour referred to both the judgment of the primary judge in this case, and the judgment of Gray J in VHAF. He said at par [43]:

"I respectfully agree with those views and consider that I should not depart from the reasoning of Merkel J in VFAD unless I am of the opinion that they are clearly wrong. I do not hold that opinion. On the contrary I agree with the analysis of each of Merkel J and Gray J for concluding that the Court has power, in effect, to order (by way of interlocutory relief) the release from detention of a non-citizen where the legality of that detention is in issue, in the substantive proceeding. ..."
157 It may be seen, therefore, that the reasoning of the primary judge which is challenged in this appeal has since been twice considered, and approved, by other judges in this Court.

Final Conclusion

158 The Minister has failed to demonstrate that the primary judge was in error.

159 There is nothing in the language of s 196(3) which, expressly or impliedly, prevents this Court from ordering the release, on an interlocutory basis, of a person who establishes that there is a serious question to be tried regarding the lawfulness of that person's detention. Regrettably, though perhaps inevitably, the task of finally resolving that question may involve a lengthy process. The right to be free from arbitrary and unlawful detention is as fundamental a freedom as our system of values recognises. It is of such paramount importance that it would be remarkable if this Court, in which is vested the judicial power of the Commonwealth, could not, in an appropriate case, order the release of a person from detention, at least on an interlocutory basis. It would require language of much greater clarity than any contained in s 196(3) to deprive the Court of the general power to grant interlocutory relief which is conferred by s 23.

160 The respondent in the present case is in a position not dissimilar in certain respects to that of the applicants in Msilanga. While we accept that at a formal level that case, and the many other cases which have subsequently followed it, can be distinguished, the principles which underlie those cases are not distinguishable. Those principles, in our opinion, remain correct, and are applicable to this case.

161 If the respondent, at a final hearing, succeeds in obtaining the declaratory relief sought, his continued detention will, at least from that moment, be unlawful. Whether it would also be a consequence of a finding that he was granted a visa in December 2001 that his detention has been unlawful since that time, as the primary judge appeared to think, or whether s 189 would render that detention lawful, as the Minister contended, need not be determined in this appeal.

162 It must be emphasised that this is not a case in which the interlocutory relief granted exceeded the final relief to which the respondent would be entitled if successful at trial. It is true that the respondent has not sought an injunction requiring his release, as part of the final relief claimed. That seems to us be of little consequence. Absent any lawful reason he would not be kept in detention if he were to succeed in his claim for declaratory relief. In the unlikely event that he were to be so detained, habeas corpus would be available to secure his immediate release. So to would an injunction, whether mandatory or prohibitory.

163 Having regard to our conclusion regarding the proper construction of s 196(3), it is unnecessary to say anything more about the constitutional challenge mounted against that section.

ORDERS

164 The orders of the Court are that the appeal be dismissed, and that the appellant pay the respondent's costs.

I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 9 December 2002

Counsel for the Appellant:
Mr C. Gunst QC and Mr W. Mosley






Solicitors for the Appellant:
Australia Government Solicitor






Counsel for the Respondent:
Ms D.S. Mortimer and Mr R.M. Niall






Solicitor for the Respondent:
Mallesons Stephen Jaques







Mr C.J. Horan appeared for the Human Rights and Equal Opportunity Commission as intervener






Date of Hearing:
17 September 2002






Date of Judgment:
9 December 2002


Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia