FEDERAL COURT OF AUSTRALIA

Yusuf v Minister for Immigration & Multicultural Affairs [2002] FCA 737

MIGRATION – notice of objection to competency – whether the alleged “decisions” are judicially-reviewable decisions pursuant to s 474 and s 475 of the Migration Act 1958 (Cth) – applicant was a lawful non-citizen and the holder of a valid visa in the migration zone – applicant held in questioning detention and temporary visa cancelled – decision to not specify the time at which the applicant was to provide comment on the intention to cancel the visa and to give reasons why the visa should not be cancelled – decision to not permit the applicant a reasonable “period of grace” within which to obtain another sponsor – decision by respondent to allow sponsorship to be withdrawn – whether made under Act or Regulations – whether reviewable by the Migration Review Tribunal

WORDS AND PHRASES – “decision”, “made under the Act or Regulations”,  “relating to visas”, “along the way”

Migration Act 1958 (Cth), ss 474 (repealed), 475 (repealed),  119, 116,  338,  192

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, applied

Molisi v MIMA [2001] FCA 420, cited

Attorney-General of the Commonwealth v Queensland 25 FCR 125, cited

Evans v Friemann (1981) 53 FLR 229, cited

Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301, cited

Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 108 ALR 77, cited

Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322, distinguished

Cardenas v MIMA [2001] FCA 17, cited

OLUWATOYIN OLUWASANMI YUSUF v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

No Q 152 of 2001

SPENDER J

BRISBANE

12 JUNE 2002

THE COURT ORDERS THAT:

1.             The Notice of Objection to Competency be dismissed in respect of the decision referred to as B in the Amended Application, and be upheld in respect of the decisions referred to as C, D and E in the Amended Application.

2.       The respondent on the substantive application pay the applicant’s costs of and incidental to this motion, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     This is a Notice of Objection to Competency filed by the respondent on the basis that the Application for an Order of Review and other Relief pursuant to the Migration Act 1958 (Cth) (“the Act”) seeks review of decisions that are not judicially-reviewable decisions as defined in the now repealed and substituted s 474 and s 475 of the Act.  The Application for an Order of Review relates to “decisions” of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) made on 13 June 2001, by which the applicant was held in questioning detention and his temporary visa, issued pursuant to s 116(1)(a) of the Act, was cancelled.  The applicant claims he is aggrieved by the decisions as he wishes to remain in Australia, and the cancellation of his temporary visa renders him liable to deportation.

Facts

2                     The applicant was born in Nigeria on 9 December 1960 and was educated to the level of Bachelor of Medicine, Bachelor of Surgery in the English language.  He arrived in Australia on 9 June 2001 after responding to an advertisement in the South African Medical Journal and obtaining sponsorship by One Stop Medical Services Pty Ltd (“One Stop”) which sponsorship, under Visa Sub-Class 422 – medical practitioner, was approved by the respondent on 15 March 2001.  On 19 April 2001, the applicant was granted a Temporary Residence Sub-Class 422 Visa by the Australian High Commission in Pretoria, valid until 19 May 2002.  The applicant’s employment at the North Rockhampton Medical Centre (“NRMC”) was arranged on 7 June 2001, with a Contract of Appointment signed by the Principal of NRMC. 

3                     Upon arrival in Australia, the applicant was “immigration cleared” at the Brisbane International Airport, with his passports “confirmed bona fide”.  Thereafter, the applicant was a lawful non-citizen and the holder of a valid visa in the migration zone.  Upon clearance, the applicant made arrangements with his contracted employer, NRMC, to commence employment.  This contract of employment was finalised on 9 June 2001.  On 12 June 2001, the applicant met with a Margaret Thomas, a representative of One Stop, to finalise his travel arrangements to Rockhampton to commence work.

4                     On 12 June 2001, the applicant attended the offices of One Stop and had a meeting with Margaret Thomas.  The only topic of conversation was the applicant’s passports.   On 13 June 2001 at 9.36 am, a facsimile from One Stop was received by the Department of Immigration and Multicultural Affairs (“DIMA”) purporting to withdraw sponsorship of the applicant.   

5                       There were subsequently internal conversations between officers of the respondent concerning whether another sponsor might be permitted to be obtained.  At 10.15 am the Department received the Immigration Inspector’s report from the Brisbane Airport concerning the applicant’s passport checks and baggage search which had been completed on 9 June 2001, and the applicant’s passports were “confirmed bona fide”. 

6                     At 10.30 am on the same day, the applicant attended an interview with two officers of DIMA concerning the two passports held by the applicant, one of which was referred to as “the damaged passport”.  That interview ceased at 11.00 am when departmental staff left the room, and at 11.10 am the applicant was held in questioning detention and questioned by an officer of the Department, Sue Ellen Delahunt.  At this time, the applicant was advised that his visa may be cancelled and Ms Delahunt decided against exercising her discretion to permit the applicant a reasonable “period of grace” within which to obtain another sponsor. At 12.35 pm, without allowing the applicant time within which to comment on the intention to cancel his visa or to give reasons why his visa should not be cancelled, the visa was cancelled.  The applicant sought legal representation, which arrived at approximately 1.30 pm, and at 2.00 pm a bridging visa E was granted to the applicant.

7                     The applicant was assisted by pro bono legal representation in the preparation and hearing of this matter before me. 

8                     On 4 July 2001, the applicant filed an Application for an Order of Review in the Federal Court.  The Amended Application for an Order of Review, filed 13 August 2001, seeks review of the following “decisions”:

 “[A is deleted in the amended application]

B.            The decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13^th day of June, 2001 to initially place and hold the Applicant in questioning detention under or pursuant to section 192 of the Migration Act 1958 (‘the Act’).

C.           The decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13^th day of June, 2001 to not specify the time at which the Applicant was to provide comment on the intention to cancel the visa and to give reasons why his visa should not be cancelled, and no time was specified, alternatively, the time specified was both neither prescribed nor reasonable pursuant to Part 2 Division 3 of the Migration Act 1958 (‘the Act’).

D.           Alternatively, the decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13^th day of June, 2001 not to exercise the Respondent’s discretion to not cancel the Applicant’s visa in order to permit him a reasonable ‘period of grace’ within which to obtain another sponsorship and/or employer pursuant to Part 2 Division 3 of the Migration Act 1958 (‘the Act’).

E.           The decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13^th day of June, 2001 to accede to withdrawal of sponsorship or alternatively, that sponsorship could be withdrawn under or pursuant to Part 2 Division 3 of the Migration Act 1958 (‘the Act’).”

9                     The “decision” referred to as “A” in the original application was:

“The decision, or alternatively conduct of, SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13^th day of June, 2001 to cancel the Applicant’s Temporary Visa Subclass 422 pursuant to sub-section 116(1)(a) of the Migration Act 1958 (‘the Act’) forthwith.”

This “decision” was crossed out in the Amended Application, no doubt on the basis that s 338 of the Act rendered this an MRT-reviewable decision and thus, by s 475(2), it was not judicially reviewable.

10                  The Notice of Objection to Competency, filed by the respondent on 20 August 2001, is based on the assertion that the substantive application seeks review of decisions that are not judicially-reviewable decisions, as defined by the now repealed and substituted s 474 and s 475 of the Act. 

Law

11                  The law at the relevant time was as follows:

“5 Interpretation

judicially-reviewable decision has the meaning given by section 475.

116 Power to cancel

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

(a)          any circumstances which permitted the grant of the visa no longer exist; or

…

(c)     another person required to comply with a condition of the visa has not complied with that condition;

…

119 Notice of proposed cancellation

(1)  Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a)     give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b)     invite the holder to show within a specified time that:

       (i)    those grounds do not exist; or

         (ii)   there is a reason why it should not be cancelled.

…

192 Detention of visa holders whose visas liable to cancellation

(1)       Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A, the officer may detain the non-citizen.

(2)       An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

            (a)     attempt to evade the officer and other officers; or

(b)          otherwise not co-operate with officers in their inquiries about the non-citizen’s visa and matters relating to the visa.

338 Decisions reviewable by Migration Review Tribunal

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

(a)     is covered by subsection (4); or

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

(c)     was made under subsection 134(1), (3A) or (4) or section 501.

474 Interpretation

In this Part:

judicially-reviewable decision has the meaning given by section 475.

475 Decisions reviewable by Federal Court

(1)     Subject to subsection (2), the following decisions are judicially-reviewable decisions:

                     …

(c)      other decisions made under this Act, or the regulations, relating to visas.”

(2)     The following decisions are not judicially-reviewable decisions:

               …

(c)      an MRT-reviewable decision;

…”

13                  For the applicant to be successful, it must be shown that there was a decision, that it was made under the Act or Regulations, that it related to visas, and that it was not reviewable by the Migration Review Tribunal (“the MRT”).

1. Decision

14                  A determination must have the quality of being final or operative or determinative, at least in a practical sense, of an issue falling for determination to constitute a “decision” at law: Australian Broadcasting Tribunal v Bond & Ors  (1990) 170 CLR 321;  Molisi v MIMA [2001] FCA 420.

15                 It is well established that a determination may be a “decision” even where it leads to an ultimate determination.  In Bond (supra), the High Court said at 337:

“[where the statute provides] for the making of a finding or ruling on that point … the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

            …

A reviewable ‘decision’ is one for which provision is made by or under a statute.  That will generally, but not always, entail a decision which is  final or operative or determinative, at least in a practical sense, of the issue of fact falling for consideration.”

In Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 at 142, French J stated:

“The broad principles which have been developed by this Court since the enactment of the ADJR Act do not limit the class of reviewable decisions to those finally determining rights or obligations or having an ultimate and operative effect.  Steps on the way to a final decision are included.  Nor is it necessary that the determination directly affect legal rights or obligations so long as it has some real or practical effect.”

In Evans v Friemann (1981) 53 FLR 229, Fox ACJ held at 233:

“The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken.  The making of the decision might precede, by a very short, or by a long period, communication, or manifestation.  There are many variables.”

2. Made under the Act or Regulations

16                  In respect of the requirement that the decision was made under the Act or Regulations, it is sufficient if the decision is impliedly required by an enactment or given force or effect to by an enactment, provided it is not merely a decision authorised in a general way by an enactment or a decision merely made within a power granted by the particular statute: Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301.

3. Relating to visas

17                  In respect of this requirement, the respondent contends:

“The decision will only relate to a visa if such visa was the subject of the particular decision under review – not if the visa is one step or more removed from the subject matter of the decision”.

18                  In my opinion, this submission is too narrow, as it is not only those decisions resulting in the granting or cancelling of a visa which are decisions “relating to visas” within the meaning of s 475(1)(c).   The words “relating to” contemplate a wide connection between the decision and a visa under the Act.  It is a matter of degree whether any decision that indirectly has a visa as its subject matter is properly to be regarded as a decision “relating to” a visa,  regardless of whether the visa is one step or more removed from the subject matter of the decision.  In Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 108 ALR 77, Hill J said at 85:

“[T]he expression ‘relating to’ can signify great width of association.   Lord Macnaghten in Inland Revenue Commissioners v Maple & Co (Paris) Ltd [1908] AC 22 at 26 said of it: ‘There is no expression more general or far-reaching than that.’

Mason J referred, in Fountain v Alexander (1982) 150 CLR 615 at 629; 40 ALR 441 at 450, to the expression as being ‘of wide and general import’, remarking that it ‘should not be read down in the absence of some compelling reason for so doing’.

The width of the association which the expression requires will, however, be dependent upon the context in which it is used: Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620.”

19                  There are reasons for thinking that Lord Macnaghten’s statement may be an overstatement.    Cooper J in Boswell said at 94:

“The phrase ‘relating to’ in Sch 2 of the Act requires that there be some connection between the two subjects to which the words refer.  That is, that the ‘decision’ must have some connection to the ‘making of appointments’ in the sense of that phrase as stated above.  The question is, what degree of connection is required?  In Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, Taylor J at 620 observed:

         ‘There can be no doubt that the expression “relating to” is extremely wide, but it is also vague and indefinite.  Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified.  That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used.’

Importantly, the width of the term ‘relating to’ must be determined by the context in which it appears and must be in accordance with the policy of the Act (Tooheys at 618, 620-1, 624, 629).”

4. Not reviewable by the MRT

20                  Section 475(2)(c) of the Act made clear that the phrase “judicially-reviewable decisions” excluded decisions reviewable by the MRT.  Section 338 of the Act sets out the decisions reviewable by the MRT.  Subsection (3) provides:

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

(a)     is covered by subsection (4); or

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

(c)     was made under subsection 134(1), (3A) or (4) or section 501.”

21                  None of subs (a) to (c) is applicable on the  present facts, with the consequence that the decision to cancel the applicant’s visa was an MRT-reviewable decision.   

22                  The applicant made an application to the MRT to review the decision to cancel his visa, being received on 26 June 2001.  The MRT declined on the basis that the application was out of time.  An application for review of the decision to cancel a visa must be made within two working days of the applicant being notified of the decision to cancel the visa.  In this case, the applicant was notified of the decision to cancel the visa by writing in Form 1099, “Cancellation of a temporary visa under section 116 of the Migration Act 1958”, which was signed by the applicant following his interview with officers of the respondent on 13 June 2001 at 12.37 pm. 

23                  Whilst the applicant’s ability to read and comprehend English is not in dispute, there were a number of inherent difficulties associated with the applicant seeking review by the MRT.  The evidence establishes that the applicant was in a state of heightened distress at the time of signing Form 1099, due to the events that had recently occurred.  There is the possibility that the applicant was ignorant at that time of the two-day time frame in which to seek review by the MRT, with the consequence that review by the MRT was rather a fictional, as opposed to real, opportunity.  Further, there was material which suggests the applicant was suffering extreme financial difficulty and did not have the resources to meet the payment within the stipulated time limit of two days (the filing fee for the MRT at that time was $1400, as compared with the $500 filing fee of the Court).  None of these considerations affects the reality of the applicant’s legal position.

Application

Decision B.

24                  The decision, set out in par B of the Amended Application for an Order of Review, to place and hold the applicant in questioning detention was a final decision notwithstanding it may or may not have resulted in a further decision being made.  A decision to arrest or detain a person is a final decision as it impacts significantly upon that person’s liberties; it is not merely a matter of procedure.  The effect of the decision was to deprive the applicant of the opportunity to obtain legal representation and to produce a duly executed contract of employment with NRMC.

25                  The decision was made under the Act, pursuant to s 192, which provides as follows:

“(1)     Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A, the officer may detain the non-citizen.

(2)       An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

            (a)     attempt to evade the officer and other officers; or

(c)          otherwise not co-operate with officers in their inquiries about the non-citizen’s visa and matters relating to the visa.”

26                  It was submitted on behalf of the respondent that the decision to place and hold the applicant in questioning detention pursuant to s 192 of the Act was not a judicially- reviewable decision.  Three bases for this contention were given.  The first was that the decision was said to be procedural in nature and did not deal finally with any substantive matter and was accordingly not a decision within the meaning of s 475 of the Act.  In my opinion, there is nothing “procedural” in detaining a non-citizen, even though that detention be part of, or ancillary to, the process of cancellation of a visa under s 116 of the Act, which section was contained in subdivision D of  Division 3 of Part 2 of the Act.  It also dealt with a substantive matter, namely the liberty of a non citizen, and dealt with it in a substantial way and in particular in a way that was relevantly final or determinative. 

27                  Secondly it was submitted that it was not directly relating to a visa, but was in respect of questioning detention.  In this regard, the requirement in s 475(1)(c) is that the decision is one relating to visas.  In my opinion, the decision in its context clearly was one which satisfied the test of being a decision relating to a visa.  The decision was one “relating to visas”, as it was based upon a suspicion that the applicant’s visa might be cancelled, which is sufficient.  It was not suggested by the respondent that the decision under s 192 to detain the applicant was an MRT-reviewable decision.

28                  Thirdly it was submitted that it was conduct rather than a decision, and as such was not reviewable under the Act, reliance being placed on Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322.  In that case, a Full Court of the Federal Court (Jenkinson, Sackville and Kiefel JJ) held that where a decision authorised by s 417 of the Act has been made, s 485(1) of the Act should be construed as excluding the jurisdiction of the court to review conduct engaged in for the purpose of the decision.  However, in this case, while no doubt there was conduct engaged in for the purpose of making the decision under s 192, there was in truth a decision made in purported reliance on the powers conferred by s 192 of the Act.

29                  Consequently, I am of the opinion that the decision set out in par B of the Amended Application for an Order of Review falls within s 475(1)(c), in that it is a decision made under the Act or Regulations relating to visas.  It seems arguable, at the very least, that the conditions which make lawful the detention of a non-citizen were not met in the present case.

Decision C.

30                  In respect of the second decision appealed from, that of the failure by the delegate to specify the time at which the applicant was to provide comment on the intention to cancel the visa and to give reasons why his visa should not be cancelled, or alternatively, that the time specified was neither prescribed nor reasonable pursuant to Part 2 Division 3 of the Act,  s 119(1) of the Act relates to notice of proposed cancellation of visas and provides as follows:

“Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a)     give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b)     invite the holder to show within a specified time that:

         (i)    those grounds do not exist; or

         (ii)   there is a reason why it should not be cancelled.

…”

31                  In my opinion, a failure to comply with the requirements of s 119 of the Act might provide a ground to challenge the decision to cancel a particular visa.  It would, in those circumstances, be a relevant matter in any MRT review of a decision to cancel the applicant’s visa.  However, in my opinion, any failure to notify a visa holder of the matters of which s 119 requires notice does not constitute a decision “made under [the] Act [and] regulations”.  There is, in my opinion, no relevant “decision”.  If in fact there is involved a decision in a failure to notify a visa holder of the matters of which s 119 requires notification, that decision is a decision “along the way”, and lacks that final operative or determinative character that is necessary, at least in a practical sense, to constitute a “decision”.

32                  I uphold the objection to competency insofar as it relates to Decision C.

Decision D.

33                  The “decision” not to permit the applicant a “period of grace” within which to obtain another sponsorship relates to a visa, as such a “period of grace” would have permitted the applicant to produce his duly executed contract of employment with NRMC and attend an appointment with the Queensland Medical Board, which are considerations of direct relevance to the cancellation of the applicant’s visa: Cardenas v MIMA [2001] FCA 17.  However, in my opinion, the decision here in question is not a decision “made under [the] Act [and] regulations” in the sense explained in Bond (supra), and is therefore not a judicially-reviewable decision under s 475(1)(c) of the Act.  I  uphold the objection to competency in relation to this “decision”.

Decision E.

34                  The “decision” that sponsorship had legitimately been withdrawn is also, in my opinion, not a decision ‘made under [the] Act [and] regulations’  as it is, consistently with Bond (supra), a decision “along the way”, hence lacking the quality of being final, operative or determinative so as to constitute a reviewable “decision” under s 475(1)(c) of the Act.

35                  Section 116(1)(a) and (c) relevantly provided that:

“… the Minister may cancel a visa if he or she is satisfied that:

(b)          …

(c)     another person required to comply with a condition of the visa has not complied with that condition;

…”

36                  It may be a matter for argument whether a sponsor can withdraw sponsorship, whether it can be done unilaterally, or whether it can be done in the absence of a reasonable basis.  The factual circumstances in Cardenas v MIMA [2001] FCA 17 are quite different from the present, but one cannot help but note that there seems to have been an extraordinary rush to cancel the applicant’s visa in the present circumstances.  As Cardenas illustrates, sponsorship and employment are not the same.  One Stop purported to withdraw its sponsorship at 9.36 am on 13 June 2001, and Dr Yusuf’s visa was cancelled at 12.35 pm the same day.  Whether there was an extraordinary reason to cancel is not presently relevant, except perhaps to explain the presence of this claimed “decision” in the Amended Application.  However, for the reasons earlier expressed, I uphold the objection to competency in relation to this “decision”.

Orders

37                  For the above reasons, I uphold the objection to competency in respect of what are said to be Decisions C, D and E.  While it is clear that the applicant’s real complaint is in the cancellation of his visa and that his opportunity to legally challenge that cancellation lay to the MRT within a very short time frame of the events of 13 June 2001, an opportunity which he did not in fact take, I dismiss the objection to competency with respect to Decision B in the Amended Application.   Notwithstanding that the applicant has only been partially successful in resisting the motion, the applicant should have his costs of and incidental to the hearing of the Notice of Objection to Competency.

38                  Consequently I order that:

1.         The Notice of Objection to Competency be dismissed in respect of the decision referred to as B in the Amended Application, and be upheld in respect of the decisions referred to as C, D and E in the Amended Application.

2.         The respondent on the substantive application pay the applicant’s costs of and incidental to this motion, to be taxed if not agreed.

Associate:

Dated:              12 June 2002