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Bondar, Anoushka --- "Detention of Asylum Seekers: Interpreting the Migration Act" [2002] AltLawJl 100; (2002) 27(6) Alternative Law Journal 287

  • Detention of asylum seekers: Interpreting The Migration Act
  • Detention of asylum seekers: Interpreting The Migration Act

    Anoushka Bondar[*]

    In four recent cases, the Federal Court has ordered the release of asylum seekers on the ground that their detention may be unauthorised or unlawful.

    In four cases currently before the Federal Court of Australia in which the legality of the detention of individual asylum seekers under the Migration Act 1958 (Cth) (the Migration Act) is contested, interlocutory orders have been made by the Court for the release of the asylum seekers, pending the hearing and determination of each substantive proceeding.

    The Migration Act provides for the mandatory detention of unlawful non-citizens (s.189(1)), drawing a distinction between lawful and unlawful non-citizens. An unlawful non-citizen is defined to be a non-citizen in the migration zone who is not a lawful non-citizen (s.14(1)), a lawful non-citizen being a non-citizen in the migration zone who holds a visa in effect (s.13(1)). In each case before the Court, the asylum seeker, the applicant to the proceeding,[1] contends that he has been granted a protection visa and thereby, as a lawful non-citizen, is entitled to immediate release from detention.

    The first interlocutory order for release was made on 27 August 2002 by Merkel J in:

    Applicant VFAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1062 (VFAD).[2]

    Subsequently, on 20 September 2002, Gray J ordered the release of an applicant in a case raising similar issues:

    VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 (VHAF).[3]

    On 11 October 2002, Marshall J followed the reasoning of Merkel and Gray JJ and made similar orders in two cases:

    VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253 (VJAB); and

    VJAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1254 (VJAC).[4]

    Factual background

    The facts of each of the four cases before the Court are substantially the same. In summary:

    • The applicant, a citizen of Afghanistan of Hazara ethnicity, arrived in Australia in 2001 without a visa. The applicant thereby became an unlawful non-citizen under the Migration Act and was properly taken into immigration detention.

    • A short time after being placed in detention, the applicant applied for a protection visa.

    • The protection visa application was considered by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister). The delegate signed a typed undated ‘decision record’[5] which purportedly recorded a finding that the applicant has a well-founded fear of persecution within the meaning of the Refugees Convention and is a person to whom Australia owes protection obligations (VFAD, paras 4-6; VHAF, paras 13-16; VJAB, paras 16-18 and VJAC, para 2).

    No notice was given to the applicant of the delegate’s purported decision. Nor was any formal visa document ever issued to him.

    Subsequently, there was a change of policy within the Department of Immigration and Multicultural and Indigenous Affairs (the Department) in relation to Afghan asylum seekers (VFAD, para 8). By circular dated 18 January 2002, Afghan asylum seekers awaiting decisions on protection visa applications were advised that where the situation in Afghanistan is relevant to the application, the processing of the application would be suspended (VHAF, para 21).

    Some time later, the applicant’s case was transferred to a second delegate who, having considered the case, refused the grant of a protection visa to the applicant (VFAD, para 9; VHAF, para 22; VJAB, paras 27-28).

    The applicant applied to the Refugee Review Tribunal (RRT) for a review of the second delegate’s decision. At the same time, a request was made for access to documents under the Freedom of Information Act 1982 (Cth) (FoI request). The RRT affirmed the decision of the second delegate (VFAD, para 9; VHAF, para 22; VJAB, paras 29-30). The applicant then commenced judicial review proceedings in the Court.[6]

    On receipt of the Department’s documents pursuant to the FoI request, the decision record signed by the first delegate came to the knowledge of the applicant and his representatives. The applicant thereby instituted a proceeding in the Court to challenge the legality of his detention. The applicant claimed that the decision record constituted the grant of a protection visa.

    Issues relevant to the interlocutory relief sought

    In each of the four cases, a number of central issues arose for consideration in relation to the interlocutory relief sought and, ultimately, granted.

    Does the court have the power to make an interlocutory order for release?

    In VFAD, the Minister contended that s.196 of the Migration Act must be construed so as to deny the Court power to grant the release of the applicant. Section 196 provides that an unlawful non-citizen, detained under s.189 of the Migration Act, must be kept in immigration detention until he or she is removed from Australia under s.198 or s.199, deported under s.200 or granted a visa.

    Merkel J found that because s.196 does not authorise the detention of a lawful non-citizen,[7] the provision cannot be construed so as to deny the Court power to grant release by way of final relief if an applicant succeeds in establishing that he was issued with a visa and is therefore a lawful non-citizen. The relevant issue before the Court therefore was whether provisions of the Migration Act prevent the Court from making an interlocutory order for release, in circumstances where the applicant is challenging the legality of his detention (VFAD, para 31). That issue, according to Merkel J, turns on whether the Court’s power to make interlocutory orders under s.23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is expressly or impliedly denied by the Migration Act.

    Ultimately, Merkel J concluded that the Migration Act does not deny the Court’s power to order release on an interlocutory basis, in circumstances where the applicant is arguing that his detention is illegal. Giving a number of reasons for his conclusion, Merkel J first noted that when the legislature has sought to deny jurisdiction to a court, it has done so expressly and clearly, referring, by way of example, to ss.474, 475 and 476 of the Migration Act (VFAD, para 36).[8] Furthermore, his Honour noted that it is well established that ‘the courts should strictly construe any statutory provision purporting to allow the deprivation of liberty by administrative detention’ (VFAD, para 36).[9] After stating that s.196 has not clearly or expressly denied the s.23 power, Merkel J then stated that there is a well-established line of authority that has accepted that the discretionary or the mandatory detention provisions in the Migration Act do not expressly or impliedly deny the power in s.23 in a case where the applicant is challenging the legality of his detention (VFAD, paras 37,45, and 46).[10] When Parliament amended s.54ZD in 1994 to become s.196 in its present form, it can be taken to have been aware of those authorities yet did not introduce a provision to limit or remove the s.23 power in that context (VFAD, para 46). Finally, Merkel J noted that a literal construction of s.196 goes against the construction which the Minister put to the Court — the Minister having contended that a court cannot order release until it has made a finding that the non-citizen has been granted a visa and such a finding cannot be made on an interlocutory basis (VFAD, para 47).

    In VHAF, Gray J followed Merkel J’s reasoning in VFAD that the Court’s power to order the release of a person from immigration detention (in circumstances where the legality of that person’s detention is in issue), is not excluded by the mandatory detention provisions in the Migration Act.[11] In VJAB, Marshall J stated that he agreed with the analysis of Merkel and Gray JJ on point (VJAB, para 43).

    When will the Court make an interlocutory order for release?

    In VFAD, Merkel J stated that the Full Court decision in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169 (Msilanga) is ‘authority for the proposition that in determining whether or not to grant interlocutory relief, the Court should apply the ‘serious question to be tried’ and ‘balance of convenience’ tests, and while exceptional circumstances need not be shown to grant release, ‘immigration issues’ are relevant to the balance of convenience’.[12]

    In each of the four cases, their Honours accepted that having regard to the statutory regime regulating the grant of visas, the applicant has a strong prima facie case on the documentary evidence that he has been granted a visa (VFAD, para 50; VHAF, para 59; VJAB, para 45).[13] However, affidavit evidence of the relevant first delegate, filed by the Minister, which deposed to the effect that the purported decision was a draft assessment only, could lead, if accepted, to a finding against the applicant.[14] There was, according to their Honours, a serious question to be tried as to whether the first delegate to consider the applicant’s case had granted the applicant a visa.

    The grant of interlocutory relief therefore turned on the balance of convenience and, in each case, it was held that the balance of convenience favoured release. In particular, their Honours gave significant weight to the fact that the applicant is in detention, with Gray J noting that ‘the protection of individual liberty is of such fundamental importance to the Australian legal system that the mere fact that the applicant is in detention must be given considerable weight in assessing the balance of convenience’ (VHAF, para 95). Furthermore, for each applicant the continued deprivation of liberty was causing significant harm, mentally and emotionally.[15]

    On the balance of convenience issue, the Minister contended that the real risk that the applicant may abscond must be weighed against factors favouring release. Their Honours noted that while there was no evidence to show a real risk that the particular applicant may abscond, there is always some risk. However, the applicant’s undertaking to submit to and abide by stringent conditions, including reporting conditions, would, according to their Honours, reduce or minimise this risk (VFAD, para 52; VHAF, para 98; VJAB, para 51).

    Issues particular to the individual cases

    The privative clause — s.474

    In VFAD, both parties relied on s.474 of the Migration Act which precludes a court from granting relief in respect of a ‘privative clause decision’.[16] The applicant contended that s.474 precluded the Minister from calling into question the ‘decision’ of the delegate to grant the visa and the Minister contended that the same section of the Migration Act prevented the applicant from challenging the legality of his detention. Noting the difficulties with each of these contentions, his Honour stated that he doubted the relevance of the privative clause to the issue of whether the interlocutory relief sought should be granted (VFAD, para 28).

    In VHAF, Gray J considered the privative clause issue in the context of whether the Court’s jurisdiction to hear the proceeding conferred by s.39B(1A)(c) of the Judiciary Act 1903 (Cth) is removed. His Honour stated that ‘although a decision to grant such a visa is a privative clause decision, within the terms of the definition in s.474(2), it is not a primary decision, within the definition of that term in s.476(6)’ (VHAF, para 46) concluding that a decision to grant a protection visa is not excluded from the jurisdiction of the Court.[17]


    In VFAD, the Minister contended that the applicant’s conduct in instituting judicial review proceedings is inconsistent with the position taken in the principal proceedings that he was granted a visa at an earlier time. Such inconsistency has the result that the judicial review proceedings amount to a waiver of the applicant’s right to a visa.

    On this issue, Merkel J doubted firstly that there had been any inconsistent conduct on the part of the applicant, particularly considering the Minister’s denial that the applicant has a visa and the statutory requirements for, and limitations on, the applicant’s right to institute review proceedings, and secondly, that estoppel, waiver or acquiescence could operate to contradict a statute.[18] His Honour concluded on point that it was ‘sufficient for present purposes that I am of the view that the Minister’s waiver argument is not of sufficient strength or cogency to warrant a conclusion that there is a serious issue to be tried (VFAD, para 51).


    In VHAF, Gray J stated that after adjourning the hearing of the interlocutory application on 18 September 2002, he became concerned that s.486C of the Migration Act might, on one construction, ‘deprive the applicant standing to bring the proceeding’ (VHAF, para 48). Section 486C contains provisions relating to standing and His Honour was concerned that the applicant is outside the class of persons in s.486C(2). His Honour invited the parties to make submissions on the point.

    The applicant contended that he fell within the class of persons in s.486C(2)(a), that is, ‘a party to a review mentioned in section 479’. The applicant submitted that the proceeding before the Court was one for a ‘review’ of a privative clause decision. The Minister chose to make no submissions.

    Gray J agreed that there is a case for a broad construction of the word ‘review’ as used in the context of the Migration Act (VHAF, para 51) and found that a purposive construction of s.486C leads to the same conclusion.[19] Noting further that unless s.486C(2) could be construed so as to include a person in the position of the applicant, anomalies might ensue, such as the applicant in VFAD having standing because his judicial review proceedings were still on foot, but the applicant in the principal case being denied standing because he had discontinued those proceedings (VHAF, para 53), Gray J concluded that the preferable construction of s.486C does not deprive the applicant of standing to bring the proceeding. At the very least, his Honour found there was a serious question about standing to be tried and given that the Minister indicated he did not wish to contest the applicant’s standing in the principal case, it was appropriate to presume the applicant does have standing (VHAF, para 54).


    At the time of writing, the outcome of the Minister’s appeal from the judgment of Merkel J in VFAD was unknown, the Full Court’s decision standing reserved. Until the judgment is handed down, the four applicants face uncertainty as to whether their release from detention on an interlocutory basis will persist. The judgment of the Full Court may also have implications in relation to the substantive relief sought in each case. Nevertheless, as Gray J noted in VHAF in the context of assessing the balance of convenience in the circumstances, ‘[I]t is no surprise to be told that a year and a half of detention has had a mind-numbing and soul-destroying effect … there can be little doubt that release subject to the undertakings given will be of significant benefit to the applicant’ (VHAF, para 96).

    [*] Anoushka Bondar is Associate to Marshall J, a judge of the Federal Court of Australia.

    Any views expressed herein are her own and do not represent the views of the Federal Court of Australia.

    ©2002 Anoushka Bondar (text)

    [1] Section 91X of the Migration Act 1958 (Cth) prevents the publication by the Court of the name of applicants for protection visas. As a matter of practice, pseudonyms are used by the Court in the title of the proceedings. This case note will use the term ‘applicant’ and ‘applicants’ when talking about the asylum seekers in the cases below.

    [2] 27 August 2002, Merkel J. At the time of writing, Merkel J’s judgment had been appealed to a Full Court of the Federal Court (Black CJ, Sundberg and Weinberg JJ). The appeal had been heard in full, however, the judgment of the Full Court remained reserved.

    [3] 20 September 2002, Gray J. While the orders were made on 20 September 2002, the reasons for judgment are dated 8 October 2002. At para 4 of his judgment, Gray J states that he reserved his reasons so as to ‘express them with greater clarity and precision than would otherwise have been possible’.

    [4] 11 October 2002, Marshall J. At paras 1 and 2, Marshall J said that the reasons for judgment in VJAB should be read together with the reasons in VJAC, as the factual and legal matters in each case are not materially different.

    [5] See VFAD, para 4. In VFAD and VHAF, the documents were entitled ‘Protection Visa Decision Record’. In VJAB and VJAC, the respective documents were entitled ‘Article 1A and Effective Protection Preliminary Assessment and PV 785 Decision (Iraqi and Afghani cases — grants only)’. In VJAB, Marshall J noted, at para 37, that the relevant facts in VFAD and VHAF are not materially different from those in the principal case, save that the ‘decision record’ in those cases was more elaborate than the typed form signed by the delegate in VJAB.

    [6] In VHAF, the applicant commenced two judicial review proceedings. He later discontinued both proceedings and signed a form consenting to his return to Afghanistan: VHAF, para 23.

    [7] In VFAD, para 33, Merkel J considered Al Masri v The Minister for Immigration and Multicultural and Indigenous Affairs to be on point. See also VHAF, paras 76-80, where Gray J considered the Minister’s submission that even if the applicant succeeded at trial on the issue of the grant of the visa, he would not be entitled to a declaration that he has been unlawfully detained since that grant. At para 80, Gray J stated that in his view, s.189 provides no authority for the continued detention of a lawful non-citizen and ‘(i)f 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’.

    [8] Those sections were introduced by the amendments to Part VIII of the Migration Act which came into effect on 2 October 2001; Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

    [9] Referring to Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] UKPC 5; [1997] AC 97 at 111 and Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169 at 188 (Msilanga).

    [10] Those authorities commenced with the Full Federal Court decision in Msilanga and are discussed at set out at VFAD, paras 38-44.

    [11] VHAF, para 84, where His Honour stated that he was far from convinced that Merkel J was wrong on point.

    [12] VFAD, para 49, referring to Msilanga [1992] FCA 41; (1992) 34 FCR 169, 170 (Black CJ), 182-183 (Beaumont J) and 189 (Burchett J).

    [13] In VHAF, para 57, Gray J notes that it is clear from s.67 of the Migration Act, which provides for the way in which a visa is to be granted, that a visa is granted once a record is made of the grant. Notification of the grant of the visa to the applicant under s.66 of the Migration Act and the requirement to give evidence of the visa under s.70 of the Migration Act, are consequent to the grant, and not a necessary part of the grant.

    [14] In VFAD and VHAF, the delegate deposed to the effect that the ‘decision record’ was a draft assessment only for reason that the applicant had not satisfied the public interest criterion 4002 in the Migration Regulations 1994 (Cth), namely that the applicant is assessed to not be a direct or indirect risk to Australian national security. Additionally, the delegate deposed that he was aware that the changing circumstances in Afghanistan could impact on the finding of a fear of persecution. In VHAF, para 74, Gray J looked at the affidavit evidence of the particular delegate and the issues it raised in relation to performance of the statutory duties regarding the grant of protection visas. His Honour noted that it is ‘strongly arguable that the existence of a signed record of a decision is sufficient to show that a visa has been granted’.

    [15] In VHAF, para 95, Gray J stated that, while the fact of detention must be given considerable weight, ‘it is not necessary for the applicant to show that he is suffering the effects of detention to a greater extent than other detainees, or even that he is suffering physically or mentally. Deprivation of liberty is never to be regarded lightly’.

    [16] On the operation of the privative clause, see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 228.

    [17] VHAF, para 46. Additionally, his Honour noted that s.21 of the FCA Act makes it clear that the Court can entertain the proceeding, even though the only relief sought consists of declarations of right.

    [18] See VFAD, para 51, where Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98, 107 was applied. See also VJAB, paras 54-5, where Marshall J considered the waiver issue in the circumstances of that case and stated that he did not find it to be ‘persuasive or a matter which outweighs countervailing factors relevant to the balance of convenience’.

    [19] VHAF, para 52. Gray J therein stated that the ambiguity surrounding the construction of s.486C of the Migration Act allows reference to extrinsic materials, pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth). His Honour referred to the Explanatory Memorandum to the Bill by which s.486C was enacted in its present form, which provides that the section is primarily directed to exclude ‘busybodies’ from making challenges to visa decisions which are not about him or her.

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