Detention of Asylum Seekers

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.

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.

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’.

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.

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.

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.

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’.

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).

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

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

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

VFAD, para 49, referring to Msilanga (1992) 34 FCR 169, 170 (Black CJ), 182–183 (Beaumont J) and 189 (Burchett J).

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.

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’.

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’.

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

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.

See VFAD, para 51, where Minister for Immigration and Ethnic Affairs v Polat (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’.

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.