Crossan and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 216 (3 April 2002)

Last Updated: 11 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 216

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/246

GENERAL ADMINISTRATIVE DIVISION )

Re Karl Crossan

Applicant

And Minister for Immigration Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 3 April 2002

Place Sydney

Decision The Tribunal refuses the Applicant's application for a Stay Order under s 41(2) of the Administrative Appeals Tribunal Act 1975.

..............................................

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Stay Order - effect of Stay Order on the decision of the Delegate for the Minister - whether detention impedes a detainees' ability to secure the effectiveness of a hearing and the determination of an application for review - conditions at Villawood Immigration Detention Centre - conditions found not to be ideal but adequate.

Migration Act 1958 ss 501(1) (6), 501F, 501G(2)

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

Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169

Re Gray and Minister for Immigration, Local Government and Ethnic Affairs [1992] AATA 109; (1992) 15 AAR 450

Re Dekanic and Tax Agents Board of New South Wales (1982) 6 ALD 240

REASONS FOR DECISION

3 April 2002 Mr R P Handley

1. This is an application by Karl Crossan ("the Applicant") for an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 ("the Act") to stay a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") dated 7 December 2001 to refuse Mr Crossan's application for a spouse visa. Mr Crossan was notified of the decision by departmental letter dated 18 February 2002. At the hearing of this preliminary matter, the Applicant was represented by Michael Jones, Solicitor, and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 501G(2) of the Migration Act 1958 ("the G documents"), together with the documents tendered by the parties. At the hearing, the Applicant and Kay Symons gave oral evidence.

BACKGROUND

2. Mr Crossan was born in Ireland on 25 November 1970 and is aged 31. He arrived in Australia on 14 June 1997 on a visitor visa, valid for a period of 3 months. On 11 September 1997, he lodged an application for a spouse visa to remain permanently in Australia. This application was based on his de facto relationship with Shane Power of Marrickville, Sydney. Ms Power bore a child by Mr Crossan, Padraig Crossan, who was born on 2 October 1998. Mr Crossan and Ms Power separated in November 1999.

3. By letter dated 21 February 2000 from the Department of Immigration and Multicultural Affairs ("the Department"), Mr Crossan was notified of the Respondent's intention to refuse the grant of a visa under subsection 501(1) of the Migration Act, on the ground that he did not pass the "character test" set out in s 501(6) by reason of his having a "substantial criminal record". A police certificate from Belfast records Mr Crossan as being convicted of possessing explosives with intent to endanger life on 13 February 1992, and of being sentenced to imprisonment for 10 years. Mr Crossan was released on parole on 25 February 1995. On the Australian incoming passenger card completed, dated and signed by Mr Crossan on 14 June 1997, he answered "No" to Question 14 "Have your any criminal conviction/s for which the sentence/s whether served or not totalled 12 months imprisonment?"

4. Despite submissions made by Mr Crossan's solicitor in response to the Department's letter of 21 February 2000, on 7 December 2001 a delegate of the Respondent decided to refuse the grant of a visa to Mr Crossan. The consequence of this refusal was that the bridging visa, with which he had been issued on the lodging of his application for a spouse visa on 11 September 1997, was cancelled by reason of the application of s 501F of the Migration Act. As a result, Mr Crossan was detained and has been held in Villawood Immigration Detention Centre ("Villawood") since late February 2002.

5. By letter dated 18 February 2002, Mr Crossan was formally notified of the decision to refuse him the grant of a spouse visa. On 19 February 2002, he lodged an application for a review of this decision by the Tribunal. On 11 March 2002, Mr Crossan's solicitor lodged an application for a Stay Order under s 41(2) of the Act with the Tribunal.

RELEVANT LAW

6. The Tribunal is empowered to make a Stay Order in proceedings before the Tribunal pursuant to s 41(2) of the Act. This provides as follows:

(2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any person who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

7. Section 501F of the Migration Act states as follows:

(1) This section applies if the Minister makes a decision under s 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

(2) ...

(3) If:

(a) the person holds another visa;

(b) that other visa is neither a protection visa, nor a visa specified in the regulations for the purpose of this subsection;

the Minister is taken to have decided to cancel that other visa.

(4) If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.

(5) ...

EVIDENCE

Karl Crossan (the Applicant)

8. Mr Crossan told the Tribunal that he has been detained at Villawood for approximately four weeks. As a result of his detention, he has not had proper access to Mr Jones for his legal assistance. He has been placed in a dormitory of 38 people where there is no table for writing. To write, he sits on the edge of his bed with a tray on his knees or tries to find a table in the dining room when it is not otherwise being used, which is not often. He has written eight to ten pages for Mr Jones since he has been in detention. Mr Crossan said there are only three phones available for inmates to phone out and they are asked to limit their calls to ten minutes. For incoming calls, an announcement is made over the public address system. Faxing is at the discretion of the Officers to whom material to be faxed must be passed. Mr Crossan said this makes it difficult to maintain contact with his solicitor, Mr Jones. Mr Crossan's partner, Tracey, brings him lined paper because this is not available in Villawood and she takes material from him to give to Mr Jones. Mr Crossan finds it very difficult to concentrate. The lights stay on in the dormitory all night and a search is conducted three times a night. He is lucky to get two hours sleep a night without interruptions. All this has caused him considerable anxiety. He feels under psychological pressure because of being away from his family and not being able to see his son. His weight has fallen from 91 kilograms to 84 kilograms over the course of the past four weeks.

9. Mr Crossan said he needs to be able to contact others who may be called as witnesses in his case. He said this is practically impossible from Villawood. Mr Jones has visited him once at Villawood for between 30 and 45 minutes, and he also made a brief visit to see Mr. Crossan when attending Villawood to see another client. Mr Crossan has tried to phone Mr Jones on three occasions and Tracey has been to see Mr Jones more than once and spoken to Mr Jones on the phone on Mr Crossan's behalf. Tracey tries to visit Mr Crossan daily - about five or six times a week for as long as the guards allow, which varies from 30 minutes to 2 hours, with the visits taking place in a noisy room, at a table if they are lucky. Mr Crossan has also had other visitors, some of whom he might call to give evidence, but he has not been able to speak to them at any great length and they have not spoken to Mr Jones.

10. Mr Crossan said his employment has been terminated by reason of his detention. His partner, Tracey, does not work because she has three children to care for. Mr Crossan's detention is causing further financial pressure on her, as well as causing difficulties for him in making Child Support contributions for his son. Mr Crossan said that he had previously been receiving Workers' Compensation payments. His Workers' Compensation lawyers are looking into whether these can be continued while he is in detention.

11. Mr Crossan said he suffered two crush fractures to his thoracic spine in April 2001. When he returned to work after the accident, prior to his detention, he had a relapse of pain and was seeing a chiropractor twice a week and attending a physiotherapist once a week, the cost of which was covered by his Worker's Compensation insurers. Mr Crossan said, in Villawood, it took him three weeks to get any medical attention and when he did get to see a physiotherapist, he was given inappropriate treatment which has exacerbated his pain. The doctor he saw suggested he take heavy painkillers but he has tried to avoid this because he needs to deal with the exacerbated pain. In any event, painkillers make him drowsy and therefore affect his concentration.

Kay Symons

12. Ms Symons, who is a Compliance Liaison Officer at Villawood, had made a statement dated 21 March 2002 (R1). Ms Symons said she has been employed by the Department for 13 years and has held the position of Compliance Liaison Officer at Villawood for the past three years. Villawood is managed by a private company, Australasian Correctional Management (ACM), but, in addition to the ACM Officers, there are 12 departmental staff rostered on duty during the course of the week. Ms Symons said she had never personally had any dealings with Mr Crossan, in particular, because she had been away on leave for the previous two weeks. However, she had checked on his details in the departmental database.

13. Ms Symons said there are medical facilities available at Villawood, with male and female doctors and nursing staff operating the Medical Centre 24 hours a day, seven days a week. Detainees' medication is taken from them at the time of arrival when there is also a medical examination. Detainees can, where necessary, see external specialists. This has to be approved by the doctors at the Centre. Ms Symons agreed in cross-examination that requests for external treatment are not always approved by the medical staff and that access to medical staff is also sometimes "problematic".

14. Ms Symons said that incoming phone calls are permitted from 9:00 am until 11:00 or 11:30 am, from 1:30 pm until about 4:30 pm, and from 6:00 or 6:30 pm until 8:00 pm. For outgoing calls, detainees purchase a phone card. There are two phones available for outgoing calls and one for incoming calls and the use of the phones is restricted because of meal times, musters and lock-up in the evening. Ms Symons agreed that the phones often get broken by detainees who get angry. She agreed that information provided by Mr Crossan to Mr Jones that there had been six altercations involving the phones over the past four weeks was not an overly high number. Ms Symons said that arguments over the phones are one of the biggest problems at Villawood.

15. With regard to incoming calls, Ms Symons said the person's name is called over the public address system. She agreed that it is not uncommon for other detainees to respond to the call and that there is only one telephone number for incoming calls to the general switchboard. She acknowledged that the switchboard might not be answered if officers were processing visitors to the Centre. She said detainees wishing to send faxes are required to give these to ACM officers. There is no provision for confidential faxes. Incoming faxes are delivered through the day, generally within two hours of arrival. Ms Symons said that writing materials are available on request and that ruled paper can be requested from the departmental officers. Ms Symons said mail marked to detainees will not be opened unless it comprises a parcel or package.

16. Ms Symons said in her statement that visiting hours are from 9:00 am to 11:00 am, from 1:00 pm to 4:00 pm, and from 6:30 pm to 7:30 pm. However, in cross-examination, when it was put to Ms Symons that the visiting hours are 9:30 am to 11:00 am, 1:30 pm to 4:00 pm and 6:15 pm to 7:00 pm, she said she was not sure. Ms Symons said visitors must produce 100 points of identification in order to be permitted to visit. Being processed to visit a detainee at the Centre can take can take 10 or 15 minutes, and it is sometimes necessary to put a limit on the number of visitors, with the result that people may be turned away. Visitors go to a room with tables. Ms Symons agreed that while there are sometimes as many as eight tables, at other times there are as few as four, which therefore have to be shared amongst the 25 or more visitors who may be present. Ms Symons agreed that areas with tables for working are very limited. The dining room is used most of the time for meals and for visitors. Even when it is not being used, people are coming and going all the time. There is a courtyard outside where there are tables which detainees can use and she said there are usually two tables with a television at the end of each dormitory. Ms Symons agreed that there is nowhere quiet for working.

SUBMISSIONS

Applicant

17. Mr Jones, for Mr Crossan, submitted that a Stay Order under s 41(2) should be granted by theTribunal. He said Mr Crossan is deprived of his income because he cannot work while being detained in Villawood. He can neither support his family, nor save to finance his case before the Tribunal. Mr Crossan has not received adequate medical treatment while he has been in Villawood, in particular for his thoracic spine. His Osteopath, Peter L Ray, has provided a report on Mr Crossan dated 20 March 2002 (A1) in which Mr Ray states that when he saw Mr Crossan on 14 March 2002, he found a "reduced range of motion and increased paravertabral tenderness". Mr Jones said his client is suffering anxiety from being detained and separated from his family, and because he is unable to sleep properly because of the security checks made at night. He is also unable to see his son whom his ex-partner refuses to bring to Villawood. Mr Jones has found contacting Mr Crossan by phone to be difficult and Mr Crossan's evidence is that his ability to instruct Mr Jones is being compromised. Mr Jones said that Ms Symons' view was largely about how the system should work but less about how the system actually works in practice. In a fax dated 27 March 2002, in submissions after the hearing, Mr Jones drew attention to recent "brawls" which had taken place at Villawood and which had resulted in further restrictions on detainees, including denial of visitors and limitations on outgoing telephone calls.

18. Mr Jones said the Tribunal is not being asked to make an order for the release of Mr Crossan from detention, as the Federal Court was in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169. Like the Federal Court, the Tribunal has no power to order the release of a person who does not have a visa. Moreover, the Tribunal is not being asked to reconsider a separate, discretionary decision of the Minister, as was the case in Re Gray and Minister for Immigration, Local Government and Ethnic Affairs [1992] AATA 109; (1992) 15 AAR 450. However, Mr Jones referred the Tribunal to the decision in Re Dekanic and Tax Agents Board of New South Wales (1982) 6 ALD 240, where Davis J said at 241:

...the jurisdiction of the Tribunal is wide and diverse and it is not practicable to lay down a principle or a set of specific principles applicable to every type of case in respect of which there may be an application for a stay.

19. Mr Jones said the effect of granting a "Stay Order" will be that the bridging visa held by Mr Crossan during the six years he has been pursuing his application to remain in Australia, will not be taken to have been cancelled pursuant to s 501F(3). However, the Tribunal will not have granted him a visa nor will it have reviewed a separate decision to cancel his bridging visa. Just as the cancellation and detention necessarily flowed from the s 501 refusal, the reinstatement of the visa and the release of the Applicant will necessarily flow from the Stay Order made in response to that refusal.

Respondent

20. Mr Cureton, for the Respondent, said the Applicant has not provided any evidence that his detention will adversely impact on the effectiveness of the hearing and the determination of the application. Mr Crossan can provide instructions to his legal representative from Villawood where Applicants in proceedings before both the Tribunal and Federal Court are regularly held.

21. Mr Cureton said Mr Crossan can be provided with medical treatment while in Villawood and there is no evidence to suggest that his medical condition impedes his ability to give instructions in this case. Moreover, working to support his family or to finance the proceedings did not go to securing the effectiveness of the review and there is no evidence that the proceedings cannot be funded without the Applicant working.

22. With regard to the incidents at Villawood which Mr Crossan alleged occurred over the previous weekend, resulting in restrictions on detainees, Mr Cureton contended that these would not prevent Mr Crossan from undertaking effective preparation for the review.

23. Mr Cureton said the Respondent submits, with reference to Msilanga (supra), that the Tribunal does not have power to order the release of Mr Crossan from immigration detention. However, he acknowledged that the Tribunal's power under s 41(2) would permit the Tribunal to stay the operation and implementation of a refused decision which, in turn, in appropriate circumstances, might have the effect of the cancellation of the bridging visa also being stayed. As a result, the Applicant would have to be released from detention because he has a bridging visa and is a lawful non-citizen. This occurs by operation of law: the Tribunal could not and would not need to make an order for release.

24. However, Mr Cureton submitted that the Tribunal does not have power in this case to make a Stay Order because that power can, pursuant to s 41(2) only be exercised "for the purpose of securing the effectiveness of the hearing and determination of the application for review". The Respondent submitted that this requirement is not satisfied in Mr Crossan's case. Mr Cureton said there is no evidence suggesting that releasing Mr Crossan from detention is necessary for the purpose of securing the effectiveness of the hearing and, similarly, any discomfort claimed by Mr Crossan in detention does not obstruct that purpose.

25. Mr Cureton said that even if the Tribunal was of the opinion that it is desirable to issue a Stay Order for the purpose of securing the effectiveness of the hearing and the determination for the application for review, the Tribunal would still need to consider, as a further question, whether it is desirable to make the orders and whether they are appropriate. The Respondent submits that the orders sought would be neither desirable nor appropriate. The inconvenience claimed by the Applicant from being in detention is outweighed by the public interest in protecting the Australian community from the Applicant. Mr Cureton referred the Tribunal to the decision under review in which the delegate found Mr Crossan's criminal conviction in Ireland to be a very serious crime and that his concealment of this offence and of a negligent driving conviction in Australia, were also serious matters. The delegate was not satisfied that Mr Crossan would not repeat such behaviour.

26. Mr Cureton also referred the Tribunal to the decision in Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320, where Marshall J stated at paragraph 13, referring to the Full Federal Court Decision in Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250, that in his view the effect of the Full Court Judgment is to:

emphasize that securing the effectiveness of the hearing and determination of the application is tied to the processes of the hearing and the processes of the determination.

Mr Cureton said the Respondent submits that the mere fact of an applicant being in detention is not of itself enough to hinder the processes of the hearing and processes of the determination. The Respondent therefore submits that the application for a Stay Order should, therefore, be denied.

CONSIDERATION OF LAW AND FINDINGS

27. The issue for the Tribunal to determine in this case is whether, pursuant to s 41(2) of the Act, it is desirable to make a Stay Order "for the purpose of securing the effectiveness of the hearing and determination of the application for review". The Tribunal notes what Marshall J said in Madefferi (supra), that this "is tied to securing the processes of the hearing and the processes of the determination". Marshall J went on to give the examples of a Stay Order being granted: to prevent the removal of an applicant from Australia, or where the Applicant's detention might prevent him or her giving required instructions to an advocate.

28. In the present case, the Tribunal finds that Mr Crossan is suffering discomfort and inconvenience as a result of his detention in Villawood. He is also suffering anxiety as a result of his detention and the separation from his family and from lack of sleep as a result of the inspection regime at Villawood during the night. The Tribunal relies on Mr Crossan's evidence in making these findings. The Tribunal also finds that he has access to medical treatment at Villawood and has been visited by his osteopath for treatment. Nevertheless, the Tribunal recognises that the treatment received by Mr Crossan from the resident medical staff may not be as beneficial as he might receive from his own general practitioner and specialist if he were not being detained.

29. With regard to Mr Crossan's contact with his solicitor and whether he is able to give his solicitor full and proper instructions and otherwise make necessary preparations for the conduct of the review of the decision to refuse him a visa, the Tribunal finds that communication between a detainee in Villawood and his or her solicitor, whilst more restricted than that of a person not in detention, is, nevertheless, adequate in terms of phone, fax and mail, and also in terms of Mr Crossan's solicitor visiting him at Villawood. In Mr Crossan's case, he also has the assistance of his partner, Tracey, who visits him at Villawood some five to six times per week and can pass documentation and messages to his solicitor. Tracey is also able to visit Mr Crossan's solicitor, which she has done on a number of occasions in the past.

30. The Tribunal concludes that, in its opinion, it is not necessary to issue a stay order to secure the effectiveness of the hearing and determination of the application for review, and therefore, denies the application sought.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

Signed: .....................................................................................

Associate

Date of Hearing 19 March, 22 March 2002

Date of Decision 3 April 2002

Solicitor for the Applicant Mr M Jones

Solicitor for the Respondent Mr N Cureton, Blake Dawson Waldron