FEDERAL COURT OF AUSTRALIA

Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1071

IMMIGRATION – objection to competency - application for review of decision to cancel visa – whether decision was made when applicant was in immigration clearance - whether “MRT-reviewable decision”.

Migration Act 1958 (Cth), ss 32, 103, 116, 166(1), 172(1), 338(3), 347(1), 475(2), 476(1).

Migration Regulations 1994 (Cth), reg 4.10; Sch 2, cl 444.

ALLY PING HAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 420 of 2000

SACKVILLE J

4 AUGUST 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The objection to competency be upheld.

2.                  The proceedings be dismissed.

3.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     The applicant seeks an order of review of a decision made by a delegate of the respondent (“the Minister”) to cancel her Special Category (Temporary) (Class TY) subclass 444 visa (“subclass 444 visa”).  The decision to cancel the applicant’s subclass 444 visa was made just after midnight on 28 April 2000, at Sydney Airport.  The delegate purported to cancel the visa pursuant to ss 103 and 116(1)(d) of the Migration Act 1958 (Cth) (“Migration Act”).  The reason given by the delegate for cancelling the visa was that the applicant was travelling on a fraudulently issued New Zealand passport.

2                     The applicant relies on a number of grounds specified in s 476(1) of the Migration Act, including the ground that the decision was not authorised by the Migration Act or the Migration Regulations (see s 476(1)(c)).  The Minister has filed a notice of objection to competency, contending that this Court has no jurisdiction to grant relief of the kind sought by the applicant.

3                     The Minister concedes that the delegate erred in concluding that s 116(1)(d) of the Migration Act authorised the cancellation of the applicant’s visa.  This concession is based on the language of s 116(1)(d), which reads as follows:

“(1)     …the Minister may cancel a visa if he or she is satisfied that

            …

(d)                if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivison C (incorrect information given by holder) if its holder had so entered and been immigration cleared”.

Section 103 of the Migration Act, which is within Subdivision C, provides that a non-citizen must not give an officer a “bogus document”.

4                     It is common ground that the applicant arrived in Australia on 16 May 1999 and that her visa was not cancelled until she attempted to leave Australia on a flight scheduled to depart Sydney Airport late on 27 April 2000.   The Minister says that the applicant was plainly “immigration cleared” on 16 May 1999, the date she arrived in Australia.  She had therefore been immigration cleared long before the purported cancellation of her visa.  Whatever other powers might have been available to the delegate, s 116(1)(d) of the Migration Act did not authorise her to cancel the applicant’s visa.

5                     The Minister’s concession is not as helpful to the applicant as might appear at first glance.  The Minister contends that the very fact that the applicant was not in immigration clearance at the time the visa cancellation decision was made deprives the Court of jurisdiction to grant any relief to the applicant.  Thus, despite the concession concerning the delegate’s misapprehension of her powers, the Minister’s position is that the Court has no jurisdiction to review the cancellation decision and that the objection to competency must be upheld.

THE LEGISLATION

6                     In order to understand the competing submissions, it is convenient to set out the relevant provisions of the Migration Act.

7                     The starting point for the Minister’s submissions is s 338(3) of the Migration Act, which defines the expression “MRT-reviewable decision”.  Section 338(3) provides as follows:

“(3)     A decision to cancel a visa held by a non-citizen who was in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:

(a)               …; or

(b)               is made at a time when the non-citizen was in immigration clearance; or

(c)                …”.

8                     Section 476(1) of the Migration Act, which is within Part 8 of the Act, provides that an application may be made for review by the Federal Court of a “judicially-reviewable decision” on any one of a number of specified grounds.  By virtue of s 475(2)(c) of the Migration Act, however, an “MRT-reviewable decision” is not a “judicially-reviewable decision”.  Section 485(1) of the Migration Act limits the jurisdiction of the Federal Court as follows:

“(1)     In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsections 475(2) or (3), other than the jurisdiction provided by this Part…”.

9                     The expression “immigration clearance” used in s 338(3) is defined in s 172(2) of the Migration Act.  Section 172 provides as follows:

“(1)     A person is immigration cleared if and only if:

(a)               the person:

(i)                 enters Australia at a port; and

(ii)               complies with section 166; and

(iii)             leaves the port at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention; or

(b)               ….

   (2)    A person is in immigration clearance if the person:

(a)               is with an officer for the purposes of section 166; and

(b)               has not been refused immigration clearance.”

10                  Section 166 of the Migration Act, which is referred to in s 172, imposes requirements on persons entering Australia.  It is in the following form:

“(1)     …a person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay:

(a)               show a clearance officer:

(i)                 …; and

(ii)               if the person is a non-citizen, evidence of the person’s identity and of a visa that is in effect and is held by the person; and

(b)               give the clearance officer any information required to be given by this act or the regulations”.

11                  The requirements for a subclass 444 visa, of the kind granted to the applicant, are specified in s 32(2)(a) of the Migration Act.  They are, relevantly, that the applicant is a New Zealand citizen; that the applicant holds and has shown an officer a New Zealand passport that is in force; and that the applicant is neither a “behaviour concern non-citizen”, nor a “health concern non-citizen”.  The visa may be granted when the applicant is in Australia or when he or she is in immigration clearance at a port outside Australia at which pre-clearance procedures are carried out: Migration Regulations, Sched 2, cl 444.411.  If, however, the grant of the visa is made in immigration clearance in Australia, it is evidenced by a port and date stamp placed in the passport of the visa holder: cl 444.711(a).  A subclass 444 visa permits the holder to remain in Australia while he or she is a New Zealand citizen: cl 444.511.

THE FACTS

12                  Although the parties disagreed as to the inferences that should be drawn from the evidence, the primary facts were not in dispute.

13                  The applicant arrived at Sydney Airport from New Zealand on 16 May 1999.  She presented New Zealand passport number N577034 to immigration officials.  I infer from the stamp in her passport that after her arrival on 16 May 1999 and while she was in immigration clearance, she was granted a subclass 444 visa.

14                  There was no dispute that the applicant was permitted by immigration officers to enter Australia on 16 May 1999.  A record of interview conducted with the applicant on 2 May 2000 indicates that she worked in Australia since about the date of her arrival nearly a year earlier.  In any event, it was common ground that she remained in Australia between 16 May 1999 and the date of the visa cancellation decision, 28 April 2000.

15                  At some stage while the applicant was in Australia, the New Zealand authorities advised their Australian counterparts that a number of New Zealand passports had been fraudulently sold to illegal immigrants. The New Zealand authorities supplied a list of passports said to have been distributed in this manner. 

16                  On 27 April 2000, the applicant arrived at Sydney Airport in order to catch an Air China flight to Beijing.  She presented New Zealand passport number N577034 to an Australian Customs Officer preparatory to boarding her flight.  An officer of the Department of Immigration inspected the passport and determined that it was one of those that had been unlawfully distributed in New Zealand.  The officer, acting under delegated authority, purported to cancel the applicant’s visa.  For this purpose, the officer used a form headed “Cancellation of a temporary visa under s 116 of the Migration Act 1958”.  The completed form recorded the grounds of the delegate’s decision as follows:

“NZ passport.

Fraudulently obtained passport”.

17                  The form used by the officer was appropriate for the cancellation of the visa of a person in immigration clearance, but not for the case where the visa holder was not in immigration clearance.  The printed form provides for the visa holder to be given an opportunity to comment on the intention to cancel the visa and to give reasons why it should not be cancelled.  The form contains this warning:

“If you choose not to comment, the immigration officer may make his/her decision based on the information available to them.  If a decision is made to cancel your visa, you will be refused immigration clearance and removed as soon as practicable.  If a decision is made not to cancel your visa you will be immigration cleared and allowed to enter Australia.”

18                  Under the heading “Notification of decision to cancel visa”, the form contains the following printed advice:

“As you are no longer the holder of a visa, you have been refused immigration clearance and will be removed from Australia as an unlawful non-citizen.  Your visa evidence in your passport has been stamped ‘inoperative’ due to the cancellation. Please note the decision to cancel is not merits-reviewable under the Migration Act.”

THE MINISTER’S SUBMISSIONS

19                  As I have noted, Mr Markus conceded that the Minister’s delegate had purported to act under a power that was not available for the purpose of cancelling the applicant’s subclass 444 visa.  He also accepted that the form used by the delegate was misleading in at least two important respects.  First, it clearly implied that the applicant was in immigration clearance at the time that the decision was made.  Secondly, the form explicitly (and, on the Minister’s submissions, incorrectly) stated that the decision to cancel the visa was not merits-reviewable under the Migration Act.

20                  Nonetheless, Mr Markus submitted that the errors made by the delegate were irrelevant to the question of the Court’s jurisdiction.  He contended that the combined effect of  ss 338(3), 475(2)(c), 476(1) and 485(1) of the Migration Act is that the Federal Court has no jurisdiction to review the decision to cancel the applicant’s visa.  According to Mr Markus, at the time the cancellation decision was made, the applicant was not in immigration clearance for the purposes of s 338(3)(b).  It followed that the cancellation decision was an “MRT-reviewable decision” and that Part 8 of the Migration Act denied the Federal Court jurisdiction to review the visa cancellation decision.

21                  As Mr Markus pointed out, this does not mean that an “MRT-reviewable decision” is not subject to any form of review.  Under Part 5 Div 3 of the Migration Act, an MRT-reviewable decision, subject to certain exceptions, may be reviewed by the Migration Review Tribunal.  (The jurisdiction of the Tribunal is, however, subject to stringent time limitations imposed by the Migration Act: see s 347(1)(b)(i) and reg 4.10, imposing a time limit in a case covered by s 338(3) of two working days after the visa holder receives notice of the cancellation.) Decisions of the Migration Review Tribunal are themselves “judicially-reviewable decisions”: s 475(1)(a).  The Federal Court therefore has jurisdiction to review decisions of the Migration Review Tribunal on the grounds specified in s 476(1) of the Migration Act.  But a decision of the delegate to cancel a visa, if within s 338(3) of the Migration Act, is not directly subject to judicial review by the Federal Court.

22                  It should be noted that it appears that the Migration Review Tribunal has no jurisdiction to review the visa cancellation decision in the present case, since no application was made to it within the prescribed time limit.

THE APPLICANT’S SUBMISSIONS

23                  There was some variation between the applicant’s written submissions and Mr Killalea’s oral submissions on behalf of the applicant on the notice of objection to competency.  As I understood Mr Killalea, he ultimately accepted that the Minister’s submissions were correct on the assumption the applicant had not been “in immigration clearance” when the visa cancellation decision was made on 28 April 2000.  He also accepted that the applicant could not have been in immigration clearance at that time if she had been “immigration cleared” on 16 May 1999, the date of her arrival in Australia.

24                  Mr Killalea contended, however, that the appropriate inference from the documentary evidence was that the applicant had been in immigration clearance at the time the visa cancellation decision was made.  He said that this inference should be drawn from the terms of the form used by the delegate to notify the applicant of the decision.  The form plainly assumed that the applicant was in immigration clearance at the time the decision was made.  It was therefore appropriate to infer that the delegate, or the officer acting on her behalf, was aware of some circumstance that had prevented the applicant from being immigration cleared on 16 May 1999.  While Mr Killalea was unable to suggest what that circumstance might have been, he said that it was open to infer that on 16 May 1999 the clearance officer had required the applicant to give certain information and that she had not complied with the requirement by 28 April 2000.  Thus she had never satisfied s 166(1)(b) of the Migration Act and had never been “immigration cleared” as that term is defined in s 172(1) of the Migration Act.

REASONING

25                  If the documentary evidence is examined, independently of the form used by the delegate responsible for the visa cancellation decision, the inference is irresistible that the applicant was “immigration cleared” on 16 May 1999, within the meaning of s 172(1) of the Migration Act.  The evidence supports the following findings as to the events of that day:

·        The applicant presented an apparently valid New Zealand passport to a clearance officer at Sydney Airport on her arrival from New Zealand.

·        The clearance officer was satisfied that the applicant met the criteria for the grant of a subclass 444 visa.  Accordingly, the clearance officer issued the applicant with a subclass 444 visa, as evidenced by the stamp in her passport.

·        So far as the clearance officer was concerned, the subclass 444 visa entitled the applicant to reside in Australia so long as she remained a New Zealand citizen.

·        The clearance officer permitted the applicant to leave Sydney Airport in accordance with the entitlement created by the grant of the visa.

·        From her arrival on 16 May 1999 until the visa cancellation decision, the applicant lived in Australia.

26                  These findings strongly suggest that each of the requirements specified in s 172(1) of the Migration Act was satisfied on 16 May 1999.  Indeed, the only basis put forward by Mr Killalea for contending to the contrary was that the applicant may have been required by the clearance officer to give information and she may not have complied with that requirement by the time the visa cancellation decision was made.  If this was the case, she would or might not have complied with s 166(1)(b) and, therefore, s 172(1)(a)(ii) may not have been satisfied.

27                  Mr Killalea was unable to suggest what further information the clearance officer might have required the applicant to provide on 16 May 1999.  It is difficult to understand why, if the clearance officer had required the applicant to provide further information, the officer was nonetheless prepared to grant her a visa entitling her to remain in Australia indefinitely.  Moreover, the applicant herself gave no evidence to suggest that there was some request for information with which she had not complied.  If this were the case, she might have been expected to give evidence of it since it would be a matter within her own knowledge.  And there is nothing in the documentary evidence (leaving the form recording the visa cancellation decision to one side) to support the suggestion that the applicant had not satisfied all requirements of the clearance officer at the time of her arrival in Australia.

28                  The fact that the delegate used a printed form appropriate to the cancellation of the visa of a person in immigration clearance does not lead me to any different conclusion.  The obvious and most likely reason for the use of the form is that the delegate simply misunderstood the correct legal position.  The decision to cancel the applicant’s visa was made within a very short time span.  The applicant was invited to provide comments on the proposed cancellation decision at 11.32 p.m. on 27 April 2000.  The form was completed and signed at 12.10 am on 28 April 2000.  There was little time for careful consideration of the correct legal position (although this does not by any means excuse the use of a seriously misleading form).

29                  Neither the form itself, nor any of the accompanying documentation, suggests that the officer concerned or the delegate directed attention to whether the applicant had been immigration cleared on 16 May 1999.  It seems simply to have been assumed, despite the fact that the applicant was attempting to leave Australia rather than enter it, that the printed form was appropriate to cancel the visa of someone found at an Australian airport in possession of an apparently fraudulently issued passport.

30                  In my view, the proper inference from the evidence as a whole is that the applicant was immigration cleared on 16 May 1999.  On that basis, as the applicant conceded, she was not in immigration clearance at the time the visa cancellation decision was made on 28 April 2000.  It follows that the visa cancellation decision was “an MRT-reviewable decision” within s 475(2)(c) of the Migration Act.  The Court therefore has no jurisdiction to review the visa cancellation decision.  The objection to competency must be upheld.

COSTS

31                  Mr Killalea submitted that there should be no order as to costs.  He said that the use of an inappropriate form to cancel the applicant’s visa was seriously misleading and, indeed, that the applicant had been misled.  Her application to this Court was filed on 1 May 2000.  There was no evidence to support the contention that the applicant had actually been misled, although it would hardly be surprising if she had, since she was allowed only a very short time to seek review in the Migration Review Tribunal.

32                  Even though the applicant had legal advice before proceedings in this Court were commenced, I think it is appropriate that there be no order for costs.  It is an unsatisfactory state of affairs when a visa cancellation decision is recorded on a form that, as the Minister has conceded, is seriously misleading.  By this comment I do not mean to level criticism at the particular officers concerned, since they presumably operate within a system for which others must bear responsibility.  Even so, the cancellation of a visa is an extremely serious step, the more so when the person concerned has been living in Australia for a considerable period.  It is of great importance that care be taken not to mislead persons adversely affected by such administrative decisions.  There seems to me to be a sufficient relationship between the proceedings in this Court and the misleading statements in the form handed to the applicant to warrant departing from the usual costs order.

33                  I should add that I have not overlooked Mr Markus’ submission that, at least by the time the notice of objection to competency was filed, the applicant was well aware of the jurisdictional difficulties she faced.  By the time the notice was filed, however, the applicant had lost the opportunity to seek merits review in the Migration Review Tribunal.  She may have had little choice but to proceed with her application in this Court.

34                  In the circumstances, it is appropriate that there be no order as to costs.

conclusion

35                  The objection to competency must be upheld and the proceedings dismissed. 

Associate:

Dated:              4 August 2000